Complainant

Respondent

Parties

Bartlomiej  Zarzycki

Newbridge Post Office .

Representatives

  Self-Represented

Brendan Kelly, Post Master with An Post Solicitor (Ms Mc Lernon) in attendance as an observer.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00048664-001

16/02/2022

The Complainant referred three complaints of Discrimination under the Equal Status Acts 2000 – namely, Discrimination by Reason of having a Disability, Failure to provide Reasonable Accommodation and Discrimination in the Provision of Good and Services.

The alleged discriminatory acts took place on the 8th October 2021 at Newbridge Post Office.

The Complainant maintained that he suffered from a Disability that precluded him from wearing a Face Mask.

The wearing of Face Masks by members of the Public/Customers was obligatory in the Post Office concerned.

Proper Legal Respondent

It was clarified that Newbridge Post Office is a contracted service provided by Mr. Kelly to An Post.  The Complainant first referred his complaint via e mail against An Post corporately at the GPO Head Office. The complaints were re directed to Mr Kelly. At the Hearing it was accepted that Mr Kelly respond to the Complaints .

An Post (Solicitor’s Office), while maintaining their legal distance, attended the Hearing in an observer capacity.

The Complainant was self-represented and made an Oral testimony supported by a written submission.

He entered the Post Office in question on the morning of the 8th October 2021.

He was asked by a lady staff member to wear a face mask. He declined as he stated that he is medically exempt. The lady staff member requested some proof as to his qualification for an exemption. The Complainant explained that he is not required to offer any personal or medical explanation as to why he is not wearing a mask – a statement declaring exemption is sufficient.

The Complainant asked to see the Manager. He was working at the next Hatch and came over.  The Manager asked for some medical proof which the Complainant maintained he was not required to provide. After an exchange with the Manager the Complainant was served at the Counter by the Lady staff member. He left the Post Office feeling offended and publicly humiliated in the presence of many other customers. The Post Office was busy on the day.

He maintained that the actions of the Post office and the Manager were clearly discriminatory counter to the Equal Status Act 2000 and a complete misinterpretation of the various Statutory Instruments and Laws especially GDPR regulations then in force. He was entitled to state that he had an exemption / A reasonable excuse (Section 5 of SI 296 of 2000) and there was no legal requirement for any further information to be provided by him to any other Party – the responsible person cited in Section 4 of the SI 296.

He served a Form ES1 on the Complainant on the 8th October 2021 and received a reply on the 15th October 2021.

The Respondent Post Master Mr K gave an oral testimony supported by his colleague Ms B who also gave an Oral testimony.

On the day in question the Complainant was in the premises and when he came to the top of the queue Ms B asked him why he was not wearing a mask. He became aggressive and shouted at her. The Office was full of elderly and vulnerable customers as it was “Pension Day” and she was very concerned for them and was frightened herself with the Complainant’s outburst.

Mr K then intervened and explained to the Complainant that Masks were required in all Retail premises . This was for the Health and Safety of Staff and especially customers. He was carrying out the “law of the land” as set out in the Health Acts and SI 296 of 2020 and SI 20 of 2021. The Post Office had numerous Covid Signs advising of the need to wear masks and general Covid precaution steps being taken on the premises.

There was no Discrimination against the Complainant. No information of any disability was provided. He was served on the day and left the Post Office albeit in a loud and aggressive manner.

As a matter of record the Post Master, under Oath, insisted that he had never received any form ES1 and accordingly could not have replied to it. This was completely contrary to the evidence of the Complainant.

3:1        The applicable Law – Equal Status Acts 2000 and Health Act 1947 (SI 20 of 2021)

The Complainant has argued that he was Discriminated against on the Grounds of Disability, Failure to Provide Reasonable Accommodation for the Disability and Discrimination against him in the Provision of goods/services.

In a long line of Labour Court and Adjudication Officer precedent cases the first requirement for a Complainant is to establish a prima facie case of Discrimination by establishing that a Disability as defined in the Act exists or existed.

In this case there was no evidence presented by the Complainant that a qualifying Disability existed on the 8th October 2021. On request from the Post Master on the day he declined to provide any medical evidence, GP notes etc. It was his belief that a simple assertion that “He was exempt” from wearing a Face Mask was sufficient. He held the view that going any further would have been a breach of his GDPR rights.

Adj 32638 Tompalski v T O’Higgins Homevalue Hardware makes very pertinent reading. In that case the central issue was the wearing/non wearing of masks. The Adjudication Officer found against the Complainant.

In that case the Adjudication Officer correctly identified that the complaints from the Complainant were directed against SI 20 of 2021 and SI 296 of 2020. The case under consideration here is virtually ad idem with the Homevalue case.

The Post Master was carrying out “the law of the land” and there was absolutely no proof of any discriminatory intent even allowing for the fact that no Disability had ever been established.

The complaint for Reasonable Accommodation also requires necessary information regarding a disability and what might be required to facilitate it , to be provided to the Respondent Shop or in this case the Post Office Owner. None was provided and accordingly the Post Office could not be reasonable expected to Reasonably Accommodate what they knew nothing about.

As regards the Provision of good and services the Complainant was served at the counter on the day.

Regarding the ES1/ES2 issue the Complainant insisted that he had entrusted this to a solicitor.

Accordingly, and in review of all the evidence presented both Oral and Written there is no prima facie case to support a complaint under the Equal Status Act 2000.

The case has to be deemed Not Well Founded – No discrimination under the Act has been shown to exist.

Equal Status Act, Face Mask Discrimination.