ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034460
Parties:
| Complainant | Respondent |
Parties | Saoirse Soden | Supervalu Harris' Supervalu |
Representatives | Self-represented | Thomas Ryan, Peninsula Business Services |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00045478-001 | 29/07/2021 |
Date of Adjudication Hearing: 23/05/2023
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed by the Respondent from 11th April 2011 until 14th June 2021.The Complainant worked 3 days per week. This complaint was received by the Workplace Relations Commission on 29th July 2021. The hearing of the complaint took place virtually on Tuesday 23rd May 2023. The Complainant represented herself at the hearing. The Respondent was represented by Mr. Thomas Ryan of Peninsula Business Services. |
Summary of Complainant’s Case:
The Complainant got very sick in early January 2020 and had to have a blood transfusion and iron infusion as her haemoglobin dropped to 6.4. It took a few months to get her blood levels back to normal and she was claiming illness benefit. The Complainant asked her boss L H in August 2020 if she could return to work and mentioned that she could not wear a face covering due to feeling claustrophobic with anxiety and fear of hyperventilating as she had to call an ambulance twice since the transfusion for hyperventilation and has developed PTSD. Doctors in the hospital had told her she could have died if she didn't get transfusion or alternately suffer a heart attack. The Complainant’s manager sent her a text asking her to call to the office which she did, and the manager informed her she could not let the Complainant back to work without her wearing a mask. The Complainant remained on illness Benefit and as she had no income, she was hoping the mask mandate would be gone maybe after Christmas of 2020, but it didn’t, and the Complainant contends her nerves really started getting to her while she was sitting at home. The Complainant stated that she was getting in a rut and depressed and she was desperate to get back to work In March 2021 the Complainant had a consultation with Dr L from her group practice and he was aware of her history of anxiety but when she asked him for letter of exemption, he said he could not give her one as he was not allowed to but would write a note for her manager. He wrote that the Complainant had anxiety and that wearing a visor or face mask made it worse The Complainant sent this note to her manager however the manager stated that this was not an exemption. That she could not let her back to work without a letter of exemption so another couple of months went by and the Complainant was getting very down sitting at home. The Complainant heard there was a doctor practicing in Derry who was sympathetic to people who could not wear a mask and she arranged a virtual consultation with her. The Derry based doctor wrote a letter exempting the Complainant after she (the Derry based doctor) went through her medical history and added that the Complainant now had developed health anxiety issues. The Complainant then sent the letter to her manager and in June 2021 the manager asked her to attend a meeting to discuss the letter etc. On June 14th, 2021, the Complainant went up to Super Valu where she was told she could not walk in front door but wait outside the side gate, so she waited there and was eventually ushered inside door by the assistant manager to her small office where the deputy manager also arrived for the meeting. As soon as the Complainant entered the office, she got the strong smell of an air freshener or diffuser. The Complainant informed the Deputy Manager that she could not stick the smell, the Deputy Manager said she would open the window. The Complainant’s eyes and nose started watering and at that the Deputy Manager opened her desk drawer and proceeded to take a mask out and said while smirking I know you don't like masks but wipe the snot from your face. The Complainant replied it’s not snot it's allergic reaction to the air freshener. The Complainant contends that she felt like she wanted to cry. The owner then entered the room and sat beside the assistant manager and the deputy manager already present. The owner proceeded to explain that she could not accept the letter from the doctor in Derry as that was in another jurisdiction where the rules and regulations regarding Covid were different. The Complainant then said “right that's fine, so what I still can't come back to work”. The owner then told the Complainant "I don't care what mental or physical problems anyone has. No one is getting into my shop ". The owner then told the Complainant that should not, in future bring medical certificates to the shop, she should send them to her vis ‘What’s App’. The Complainant felt degraded and humiliated and in shock at how she was treated. She then went home and that's when she decided to ring the WRC and see could they help her and then she completed the form. Over the course of the next couple of months the Complainant was hoping for the mask mandate would be lifted and she could return to work. The Complainant summarised other events that took place after submitting her complaint form to the WRC on 29th July 2021. |
Summary of Respondent’s Case:
Factual Background –
4. The owner received a text from Claimant saying she got a letter of exemption from her doctor and asking to come back to work. This was followed by a screenshot of the letter. 5. The owner contacted the Complainant to call in for a chat as there was an issue with the letter.
It is noted that the Respondent summarised some legal cases from this jurisdiction and also from the UK. Under the Safety, Health and Welfare at Work 2005 (2005 Act) employers must conduct risk assessments to identify hazards relating to the workplace and take steps to control and minimise any risks presented by these hazards. Employees likewise have obligations under the 2005 Act including the duty to take reasonable care to protect their own safety, health and welfare as well as that of others. Employees are similarly obligated to cooperate with their employer in this regard. This requirement, under the 2005 Act. Protocol published by the government in December 2020 indicates that employers must continue to review and update their risk assessments as part of their COVID-19 Response Plan. Risk assessments should reflect this development and employers should consider whether additional measures will be required to control and minimise the risks for employees who do not wish to receive the vaccine. Conclusion: (i) In the middle of one of the world’s major virus infections, which caused millions of deaths, the respondent was trying to provide an essential service to its customers. (ii) According to documents released from the Central Statistics Office the number of cases in Ireland in July 2021 - 300,106. It is against this alarming background that the claimant’s complaint must be judged. (iii) It was mandatory for all staff and (by and large all) customers to wear a mask. (iv) This was to protect the staff and its customers from contacting and/or spreading the Corona Virus. (v) Under the Health and Safety at Work Act 2005 the Respondent must provide a safe place of work for its staff. The Respondent would be failing in its duty to its employees by allowing the claimant to work without a mask. (vi) Further in respect of the Health and Safety at Work Act 2005, the employee must co-operate with their employer with regard to safety welfare and welfare at work. (vii) Furthermore, under this Act the employee should not engage in in any improper conduct that could endanger their own safety or health or that of anyone else. (viii) The Respondent would be vicariously liable if staff or customers contracted the Corona Virus because of the claimant’s refusal to wear a mask. (ix) The doctor’s certificate was from a doctor outside the jurisdiction and the Respondent was quite justified in refusing it. (x) Even if the doctor certified that the claimant was suffering from a disability and could not wear a mask, the Respondent had to balance the claimant’s right (not to wear a mask) against the safety and wellbeing of the other fifty-six staff and customers, who must wear masks. (xi) The Claimant did not have a superior right (not to wear a mask) compared to the rights and protective measures taken for other staff and customers, in the fight against Corona Virus. The Adjudicator is asked to take respectful notice of this. (xii) The Adjudicator’s attention is also brought to the fact that the employer did try to provide reasonable accommodation in that she was allowed to wash baskets outside the supermarket, but she refused to do this stating that it was too cold. (xiii) Claimant is an ardent anti mask activist and wanted to force her way into the premises showing scant regard for her work colleagues and customers. (xiv) The claimant does not identify a Comparator. Is she saying that her comparators(s) are her work colleagues and that she was discriminated on grounds of not having to wear a mask in comparison to her 56 work colleagues who had to wear a mask? (xv) The claimant is an adamant “anti-vaxer” and “anti-masker” and Crusader. Burning masks? What she does in her own time is her own business. However, she cannot impose her beliefs on her work colleagues and endanger the health of her 56 colleagues and countless customers. (xvi) It cannot be good law that reasonable accommodation must be made for an employee (the claimant herein) at the expense of her 56 fellow workers and customers of SuperValu. This is repugnant to common sense. (xvii) She does not establish a Prima Facie case that she was discriminated against. She has not identified a comparator.
|
Findings and Conclusions:
Section 6(1) of the Employment Equality Acts 1998 to 2015 (the Employment Equality Acts) defines discrimination as follows: - “…discrimination shall be taken to occur where (a) a person is treated less favourably than another person, is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which– (i) exists,
(ii) existed but no longer exists,
(iii) may exist in the future,
(iv) is imputed to the person concerned.
(b) …” Equality law is based on comparison; how one person is treated by comparison to another who does not possess the relevant characteristic. It is therefore necessary to ground a claim of discrimination by pointing to how another person, not having the characteristic relied upon, was, is or would be treated in a comparable situation. This is referred to as a comparator. A comparator must be employed by the same employer as the complainant or by an associated employer. A comparator is an evidential tool. They are intended to contrast the treatment of the complainant, in respect to the matter complained of, with that of another person in similar circumstances who does not have the protected characteristic relied upon. In the instant case the Complainant failed to name a comparator.
From documents received from the Complainant she has included some information on events that took place after she submitted her complaint form to the Workplace Relations Commission i.e., 29th July 2021. I am unable to consider these events as part of this complaint.
I also note that from January 2020 until December 2021 the Complainant was medically certified as being unfit for work.in
The Respondent representative has raised the subject of vicarious liability. Section 15 of the Act looks at the subject of Vicarious Liability and reads as follows: 15. (1) Anything done by a person in the course of his / her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval. (2) Anything done by a person as agent for another person, with the authority (whether express or applied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person. (3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee – a. from doing that act, or b. from doing in the course of his or her employment acts of that description.
The Respondent representative also raised the subject of the Safety, Health and Welfare at Work 2005 (2005 Act) and has clearly pointed out the following: Employers must conduct risk assessments to identify hazards relating to the workplace and take steps to control and minimise any risks presented by these hazards. Employees likewise have obligations under the 2005 Act including the duty to take reasonable care to protect their own safety, health and welfare as well as that of others. Employees are similarly obligated to cooperate with their employer in this regard. Taking all of the above into consideration and also being mindful of the fact that we were in the midst of a global pandemic I cannot accept that the Complainant has been the victim of discrimination, on the contrary I would consider it as reckless had the Respondent allowed the Complainant to work without a face covering. After consideration I find that the complaint as presented is not well founded.
|
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Taking all of the above into consideration and also being mindful of the fact that we were in the midst of a global pandemic I cannot accept that the Complainant has been the victim of discrimination, on the contrary I would consider it as reckless had the Respondent allowed the Complainant to work without a face covering. After consideration I find that the complaint as presented is not well founded.
|
Dated: 06-06-2023
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
Employment Equality Act, 1998. |