Complainant

Respondent

Parties

James  Jackson

An Post

Representatives

  Self-Represented

Ms Katherine McVeigh BL instructed by Jacinta Bourke An Post Solicitors Office

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00044056-001

13/05/2021

The Complainant submits that when he went to the GPO in Cork to sign for his job-seekers allowance during the Covid-19 restrictions he was refused service on account of his disability and further, that his disability was not reasonably accommodated by the Respondent in contravention of the Equal Status Act 2000-2015 (the Act). He had not been wearing a mask because of his severe anxiety. He  contends that the wearing of a mask would exacerbate his condition. The Respondent/ clerical worker refused him service and he had to leave the building.

The Respondent denied that it discriminated against the Complainant in any way.

The Respondent raised two preliminary issues.

Preliminary Issue No.1 – Incorrectly Named Respondent:

The Respondent claims it never received the ES.1 form and moreover that the Respondent herein, "John Byme", was not at the material time a service provider within the meaning of section 2 of the Act, nor was the Complainant a recipient of Mr. Byrne's services. The Respondent submits that the complaint cannot proceed under the Act and that the claim be dismissed.

No application to substitute the Respondent has been forthcoming from the Complainant and the Respondent submits it is now out of time for the Complainant to make such an application. If an application is made by the Complainant, the Respondent submits that it is not appropriate to do so in line with the Slywia Wach v Travelodge Management Limited EDA 1511 . As held in the Wachcase, it is not appropriate to substitute a Respondent for another in employment law proceedings where the statute of limitations has expired.  The Respondent argues that this decision  was most recently affirmed by the WRC in A Sales Assistant -v- A Retail Store (ADJ-00025915).

The Respondent cites An Employee v An Employer (ADJ-00009843; 13 December 2021), the Adjudication Officer relied upon Wach.and found:

"The circumstances of this particular case, l am satisfied that the Complainant has issued these Complaints against tile wrong parties, and I have considered the decision in Wach -v- Travelodge EDA 1511 where the Labour Court held:

".. the preponderance of authority is that the Superior Courts will not add or substitute a party to proceedings where the limitation period in the action has expired against that party. The Court could not substitute the name of the employer as the time limit for the claim had expired. lt was not appropriate to exercise the discretion to substitute a party tothe proceedings where the limitation period had expired as against that party".

Accordingly, in accordance with the aforementioned decision Wach -v- Travelodge, I find that it is not appropriate to exercise a discretion to substitute the names of the parties to these complaints where the limitation period has expired as against those parties".

The Respondent further cites  Ann Aziz v David Jones and John Smyth DEC-E2014-026,  wherethe Equality Officer found that the correct Respondent was clearly visible to the Complainant and dismissed the complaint when the incorrect Respondent was named on the Complaint Form.

The Respondent cites   A Civil Engineer v A Concrete Manufacturing Company (ADJ-00027348; 13 May 2021),  where the Adjudication Officer dismissed a claim when the Complainant named an incorrect Respondent on the Complaint Form. The Adjudication Officer held:

"I find that I cannot substitute the name of one legal entity for the name of another legal entity and furthermore the application to amend the name of the Respondent was made outside the statutory time frame for referring a complaint. Therefore, I find that I have no jurisdiction to inquire into these complaints because they have been substituted against the incorrect named Respondent".

The Respondent contends that the Complainant waited until the day before the time limit expired before he lodged the Complaint Form. As per the dicta in the Labour Court case of Brother of Charity Services Roscommon v Lynch, the Respondent submits that this is a determining factor that can be considered by the Adjudication Officer when deciding whether it is appropriate to substitute a Respondent on the Complaint Form. The Respondent named on the Complaint Form by the Complainant  was never a "service provider" to the Complainant, and in those circumstances, it is submitted that this claim must be dismissed.

Preliminary Issue 2 – Proof and Notice of Disability:

The Respondent submits that the Complainant is put on full proof of his alleged disability to demonstrate that he has a disability within the meaning of section 2 of the Act. The Respondent submits that if the Adjudication Office decided that the Complainant has a disability within the meaning of the Act, it was not on notice of any alleged disability at the material time. The Complainant is required to produce medical evidence to establish that he had a disability at the material time and the extent of any alleged disability, in particular that he suffered from a disability that inhibited his ability to wear a face mask. The Complainant has not provided any such evidence.

The Respondent cites  Waterford Senior Care Limited v Liam Tabb [Determination No. EDA 1926; ADE/19/5], where the Labour Court highlighted the importance of determining at the outset of a disability discrimination claim whether a person had a "disability" within the meaning of the 1998 Act at the material time. The Court emphasised that the burden is on a person bringing a disability discrimination claim to prove on medical evidence that he has a disability. In finding that the Complainant did not have a disability, the Court held:

"There is a burden on the Appellant to specify how any such condition conforms to the definition of disability within the meaning of the Act. lt is not for the Court to speculate or draw upon its own interpretation of such terms. The Appellant, in not supplying any medical evidence which would allow the Court to consider the medically certified condition of the Appellant at the material time against the criteria set out in Section 2 of the Act, left the Court with no basis for determining that any of the conditions specified by a medical practitioner amounted to a condition meeting the terms of the Act at Section 2. The Court concludes that it is not in a position to determine that the Appellant suffered from a disability within the meaning of the Act at the material time and consequently must find that the within appeal cannot succeed."

The Respondent contends that the Complainant has failed to demonstrate that he has a "disability" within the meaning of section 2 of the  Act. The next step is for the Complainant to demonstrate that he suffers from a "disability", which prohibited him from wearing a face mask, and the Complainant has failed in this regard.

The  Respondent further  contends that the Complainant is put on full proof of his notification to the Respondent of a disability. The Respondent asserts that the Complainant at no point produced this, or any other medical evidence, to the Respondent at the material time nor has he alleged that he did so. In that regard, the Respondent submits that the Complainant has failed in his obligations to inform the Respondent of any disability under the 2000 Act at the material time. The Respondent argues that for the foregoing reasons, disability discrimination and the duty of reasonable accommodation does not apply in this matter.

Preliminary Issue 1. – Incorrectly Named of Respondent.

The Complainant, who gave evidence under oath,  stated that he believed that the An Post clerk, Mr John Byrne, was the correctly named service provider. He said that he had little or no legal knowledge in these matters but believed he was had the correct name on the complaint form.

Preliminary Issue 2 – Proof and Notice of Disability:

The Complainant gave evidence that on 27 January 2021 he  entered the GPO An Post Office in Cork at around 17.15 as he believed that it was quiet at that time. He was not wearing a mask because  he suffered from severe anxiety and the wearing of a mask would exacerbate his condition.    He stated that a  security man asked for his mask, and he stated to him that he was exempt. He doesn’t recall whether he said he was medically exempt. The Complainant stated that the security  man walked to the counter of the respondent. The Complainant believes that the security man told Mr Byrne that he should not be served. The Complainant stated that John Byrne said, “Where is your mask?” The Complainant stated that he was exempt, but Mr Byrne refused to serve him.

In cross examination on the issue of disability, the Complainant accepted that he was not diagnosed with a disability at the material time but that he was subsequently diagnosed with severe anxiety and depression sometime after the event. The Complainant could not recall the date of the diagnosis, nor did he produce the medical certificate at the hearing.

Two important preliminary matters were raised by the Respondent. I primarily must  make a decision on the preliminary matters because such a decision  has the potential to dispose of the whole  complaint before me.

Preliminary Issue 1. – Incorrectly Named of Respondent.

Section 2 of the Act states:

“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

(a) access to and the use of any place,

(b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

I accept the Respondent’s argument that John Byrne was not the service provider under the Act, but is instead an employee of the service provider, An Post.  After hearing the evidence and submission in this case, I am satisfied that the Complainant made a genuine error and incorrectly named the Respondent which should have been An Post.  I cannot accept the position of the Respondent that the case should be dismissed on the basis that the wrong legal entity was named. There is a  difference between cases where the wrong legal entity is named and where the correct entity is incorrectly named. This arose in Capital Food Emporium (Holdings) Ltd v John Walsh [2016] IEHC 725. The High Court held that the Capital Food Emporium (Holdings) Ltd were at all times aware that the claim was directed against it and that the Rights Commissioner was correct to change the name.

In O'Higgins -v- University College Dublin & Anor [2013 21 MCA] Hogan J. held: “Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be) .… In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts”.

I am satisfied that An Post’s  representatives  were on notice of the proceedings and fully aware of the nature of the complaint.  I also conclude that An Post has  been afforded the opportunity to be heard and put forward its case in response to the complaint and would not be prejudiced by allowing amendment of the name. I therefore amend the Respondent name to that of An Post for the purpose of these proceedings.

Preliminary Issue 2 – Proof and Notice of Disability:

I deem this not to be a preliminary issue per se with regard to my jurisdiction but rather falls to be determined as part of the substantive issue and, as such, is addressed below.

The  Complainant  has submitted that his disability consisted of severe anxiety. I have  given careful consideration to the submissions of the parties on this matter.

The Act at Section 2 defines disability as follows:

• “disability” means—
  • (a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

• (c) the malfunction, malformation or disfigurement of a part of a person’s body,
  • (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

• and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future, or which is imputed to a person;

The Burden of proof provision at section 38A provides

(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary.

The Complainant must therefore first establish a prima facie case that he had a disability at the material time of events described, namely 27 January 2021. The Respondent opened Waterford Senior Care Limited v Liam Tabb [Determination No. EDA 1926; ADE/19/5], where the Labour Court stated:

"There is a burden on the Appellant to specify how any such condition conforms to the definition of disability within the meaning of the Act. lt is not for the Court to speculate or draw upon its own interpretation of such terms. The Appellant, in not supplying any medical evidence which would allow the Court to consider the medically certified condition of the Appellant at the material time against the criteria set out in Section 2 of the Act, left the Court with no basis for determining that any of the conditions specified by a medical practitioner amounted to a condition meeting the terms of the Act at Section 2. The Court concludes that it is not in a position to determine that the Appellant suffered from a disability within the meaning of the Act at the material time and consequently must find that the within appeal cannot succeed."

The Complainant accepted that on 27 January 2021 he entered the Respondent’s premises with the aim of signing for his Job Seekers allowance. He stated that he could not remember the date he was diagnosed by his GP as experiencing severe anxiety and depression, but it was after the material date of 27 January 2021, on no specified date. He also gave evidence that he  signed on for Disability Benefit from the date of diagnosis.  The Complainant furnished no medical evidence of having  a disability as defined under section 2 of the Act, nor did he give evidence of informing the Respondent of the nature of any purported disability.   Therefore, I find that the Complainant has not established a prima facie case that he had a disability. I decide that he was not discriminated against by the Respondent.

For the reasons outlined above, I conclude  that that the Complainant did  not establish a prima facie case of discrimination and therefore I find that the Respondent did not engage in prohibited conduct under the Equal Status Acts 2000-2015. 

Equal Status Act 2000, Incorrect Respondent, Disability, Mask Wearing.