ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00046130
Parties:
| Complainant | Respondent |
Anonymised Parties | A Passenger | A Transport Provider |
Representatives |
| A Transport Provider Representative |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00051973-001 | 28/07/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00045255-001 | 16/07/2021 |
Date of Adjudication Hearing: 27/10/2023
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000following 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. Parties were advised that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that the hearing would be held in public and taking into consideration the medical details of the complainant, I consider the circumstances to be special circumstances and that this decision should be anonymised.
Parties were also advised that an Adjudication Officer may take evidence under oath or affirmation and reminded that cross examination is permitted. Where submissions were received, they were exchanged. Evidence was taken under affirmation from the Complainant, and under affirmation from Mr B manager for the respondent.
Background:
The complainant submits that he was discriminated against by the respondent on the grounds of a disability and has submitted two complaints.
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Summary of Complainant’s Case: CA-00051973-001
The complainant submitted that the most recent incident of discrimination occurred on 15/05/2021 and the first date was 08/08/2020 and that the ES1 was submitted on 15/3/2021 and he did not receive a response to the ES1 and that he was discriminated against on the grounds of his disability of PTSD and severe anxiety. This instant complaint was received by the WRC on 28/07/2022.
The complainant submitted that his medical details were demanded by the respondent and he showed letters from the government which outlined that he did not need to carry a letter. He submitted that he was left stranded by the bus driver when he did not show a letter regarding his disability and on another occasion he was told the bus was full even though there was only 6 people on board and made a complaint about each and every incident when it occurred.
A medical letter was provided dated 13/07/2021 stating the complainant suffers severe anxiety and has difficulty tolerating wearing masks in public places. It also stated he suffered from difficulties breathing through his nose due to injuries received from a previous assault.
The complainant gave evidence of a number of incidents that occurred including that on 08/08/2020 when he was refused passage on a bus and that he could not wear a mask. He said the incident occurred around 4.30 pm and that the bus driver said, ‘no mask no entry’. The complainant said he tried to explain that he had a hidden disability and that he had a right but that the driver repeated ‘no mask no entry’. The complainant said he did not produce documentation regarding his hidden disability which is PTSD and severe anxiety disorder. He said he was told by a government agency that he did not need documentation and looked up the website and did not need proof. He said there was no mention anywhere about needing proof so he interpreted that as not needing proof of disability.
He said he emailed the respondent on many occasions regarding what had occurred including on 17/08/2020 and he was told he would need to go to the garda to request the cctv footage. He said that his medical conditions are between him, his doctor and God and that to have to produce a medical letter explaining his condition was like having to wear a star of David
He said that the respondent replied on many occasions to his complaints including 24/08/2020 asking for details of what occurred and what specific route was involved and he provided this and that he got on the bus and wore a mask and is sorry that he did wear one and did not expect matters to snowball. He said he accepted the respondent’s apology but was unhappy and provided further details when this was requested by the respondent. He outlined that he did not send an ES1 until 15/03/2021 and was told in September 2020 that the respondent’s cctv had been wiped. There were further exchange of emails and on 12/02/2021 he advised the respondent of another incident. He confirmed that he posted an ES1 on either 15/03/2021 and in May 2021 had other similar interactions with the respondent.
Under cross examination the complainant confirmed that he received cctv but did not receive all the data he requested. |
Summary of Respondent’s Case: CA-00051973-001
The respondent submitted that they were advised by the complainant that while attempting to board a bus, entry was refused on the grounds that the complainant refused to wear a face covering as required. It was submitted that the incident in question occurred in May 2021, the associated paperwork for the claim was submitted in July 2022, which was outside the procedural time limit for submitting a case. The respondent operates a range of services around Ireland including public service obligation services and is committed to be customer centred and treats everyone equally and differences are welcomed and embraced.
In response to the complaint that the complainant was also refused entry on 15/05/21 it was submitted that the driver explained the reasons to the complainant and on that occasion was eventually allowed to travel. Travel on this one occasion was a gesture of goodwill on the part of the driver, so as not to leave the complainant stranded. In response to the complaint that other passengers were verbally abusive to the complainant the respondent said that public advice required customers to wear a face covering within bus stations and on board throughout their entire journey. The complainant was advised of this.
The complainant contacted the respondent about his experience on many occasions. The complainant advised that he would prefer not to communicate via telephone and was accommodated and correspondence was via email and he was asked if a face shield would be a viable alternative for him. The complainant was also advised that should the complainant be able to provide a letter of exemption from his GP stating that he had medical reasons as to why he could not wear a mask he would be able to travel. He did not provide this proof at the time; therefore, as per governmental guidance at that time, was not allowed to travel. The respondent clarified to the complainant why the Gardai were called as there was an expectation from the Gardai for the company to report any instances where there is a passenger without an exemption letter and not wearing a mask on board and was following protocol at that time of the pandemic.
The complainant only supplied a letter from his Doctor in July 2021, after the incidents. Requests from the complainant for CCTV were made available to the complainant and have been viewed and can neither support nor contradict the complainant’s claims of verbal assault. While the respondent is appreciative of, and empathetic to, the difficulties that the complainant has outlined it was submitted that the decision to refuse the complainant entry onto services was in line with the national guidelines at that time. The job of a bus driver, and indeed frontline staff, was a very difficult one with frequent announcements of changes in these regulations, which the drivers had to enforce. The incidents outlined are not discrimination and the claims should have been brought within 6 months, but no later than 12 months of the incident in question and this case should dismissed. It was also submitted that the respondent would welcome the complainant on board any of their services as he chooses.
Mr B gave evidence that he exchanged some correspondence with the complainant regarding his queries and complaints and in cross examination Mr B said that some people found visors more useful than face masks.
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Findings and Conclusions: CA-00051973-001
The complainant submits that he sent an ES1 on 15/03/2021. The respondent denies receipt of this. The complaint was received by the WRC on 28/7/2022 and refers to incidents that may have occurred on the first occasion on 08/08/2020 and the most recent incident of discrimination occurred on 15/05/2021. The complainant submits that he was discriminated against on the grounds of his disability of PTSD and severe anxiety and the respondent failed to provide reasonable accommodation. The respondent did not dispute his medical disability but submits that the complaints are out of time and that no ES1 was received.
Section 21 outlines Redress in respect of prohibited conduct. 21.—(1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission. (2) Before seeking redress under this section the complainant— (a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of (i) the nature of the allegation, (ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, [to seek redress under this Act], and (b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission[or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions. (2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.
(3) (a) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may— (i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or (ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction, and, where such a direction is given, this Part shall have effect accordingly.
(b) In deciding whether to give a direction under paragraph (a)(ii) the [Director of the Workplace Relations Commission [or, as the case may be, the Circuit Court] shall have regard to all the relevant circumstances, including— (i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and (ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint. (4) The [Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall not investigate a case unless the Director of the Workplace Relations Commission] or the Circuit Court, as the case may be,] is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.
(5) The Minister may by regulations prescribe the form to be used by a complainant and respondent for the purposes of subsection (2).
[(6) (a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.
(b) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court] may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.
A copy of an ES1 was provided dated 15/03/2021 and the instant complaint was not received by the WRC until 28/07/2022. While I note that the respondent submits that they did not receive the ES1, I note that the ES1 is not a statutory form and the respondent did receive correspondence from the complainant regarding complaints. However, the complainant has clearly failed to comply with the time limit for making a complaint within 6 months of the incident he was complaining about to the WRC. While I note that the complainant submits that he requested an extension of time owing to covid, covid may explain his delay but does not excuse the delay and there was nothing that excuses the failure of the complainant to submit his complaint within six months. I find that the complaint is out of time and I do not have jurisdiction to hear this complaint. |
Summary of Complainant’s Case: CA-00045255-001
The complainant submitted that the most recent incident of discrimination occurred on 15/05/2021 and the first date was 08/08/2020 and that the ES1 was submitted on 15/3/2021 and he did not receive a response to the ES1 and that he was discriminated against on the grounds of his disability of PTSD and severe anxiety. This instant complaint was received by the WRC on 16/07/2021.
The complainant submitted that his medical details were demanded by the respondent and he showed letters from the government which outlined that he did not need to carry a letter. He submitted that he was left stranded by the bus driver when he did not show a letter regarding his disability and on another occasion he was told the bus was full even though there was only 6 people on board and made a complaint about each and every incident when it occurred.
A medical letter was provided dated 13/07/2021 stating the complainant suffers severe anxiety and has difficulty tolerating wearing masks in public places. It also stated he suffered from difficulties breathing through his nose due to injuries received from a previous assault.
The complainant gave evidence of a number of incidents that occurred including that on 08/08/2020 when he was refused passage on a bus and that he could not wear a mask. He said the incident occurred around 4.30 pm and that the bus driver said, ‘no mask no entry’. The complainant said he tried to explain that he had a hidden disability and that he had a right but that the driver repeated ‘no mask no entry’. The complainant said he did not produce documentation regarding his hidden disability which is PTSD and severe anxiety disorder. He said he was told by a government agency that he did not need documentation and looked up the website and did not need proof. He said there was no mention anywhere about needing proof so he interpreted that as not needing proof of disability.
He said he emailed the respondent on many occasions regarding what had occurred including on 17/08/2020 and he was told he would need to go to the garda to request the cctv footage. He said that his medical conditions are between him, his doctor and God and that to have to produce a medical letter explaining his condition was like having to wear a star of David
He said that the respondent replied on many occasions to his complaints including 24/08/2020 asking for details of what occurred and what specific route was involved and he provided this and that he got on the bus and wore a mask and is sorry that he did wear one and did not expect matters to snowball. He said he accepted the respondent’s apology but was unhappy and provided further details when this was requested by the respondent. He outlined that he did not send an ES1 until 15/03/2021 and was told in September 2020 that the respondent’s cctv had been wiped. There were further exchange of emails and on 12/02/2021 he advised the respondent of another incident. He confirmed that he posted an ES1 on either 15/03/2021 and in May 2021 had other similar interactions with the respondent.
Under cross examination the complainant confirmed that he received cctv but did not receive all the data he requested. |
Summary of Respondent’s Case: CA-00045255-001
The respondent submitted that they were advised by the complainant that while attempting to board a bus, entry was refused on the grounds that the complainant refused to wear a face covering as required. It was submitted that the incident in question occurred in May 2021, the associated paperwork for the claim was submitted in July 2022, which was outside the procedural time limit for submitting a case. The respondent operates a range of services around Ireland including public service obligation services and is committed to be customer centred and treats everyone equally and differences are welcomed and embraced.
In response to the complaint that the complainant was also refused entry on 15/05/21 it was submitted that the driver explained the reasons to the complainant and on that occasion was eventually allowed to travel. Travel on this one occasion was a gesture of goodwill on the part of the driver, so as not to leave the complainant stranded. In response to the complaint that other passengers were verbally abusive to the complainant the respondent said that public advice required customers to wear a face covering within bus stations and on board throughout their entire journey. The complainant was advised of this.
The complainant contacted the respondent about his experience on many occasions. The complainant advised that he would prefer not to communicate via telephone and was accommodated and correspondence was via email and he was asked if a face shield would be a viable alternative for him. The complainant was also advised that should the complainant be able to provide a letter of exemption from his GP stating that he had medical reasons as to why he could not wear a mask he would be able to travel. He did not provide this proof at the time; therefore, as per governmental guidance at that time, was not allowed to travel. The respondent clarified to the complainant why the Gardai were called as there was an expectation from the Gardai for the company to report any instances where there is a passenger without an exemption letter and not wearing a mask on board and was following protocol at that time of the pandemic.
The complainant only supplied a letter from his Doctor in July 2021, after the incidents. Requests from the complainant for CCTV were made available to the complainant and have been viewed and can neither support nor contradict the complainant’s claims of verbal assault. While the respondent is appreciative of, and empathetic to, the difficulties that the complainant has outlined it was submitted that the decision to refuse the complainant entry onto services was in line with the national guidelines at that time. The job of a bus driver, and indeed frontline staff, was a very difficult one with frequent announcements of changes in these regulations, which the drivers had to enforce. The incidents outlined are not discrimination and the claims should have been brought within 6 months, but no later than 12 months of the incident in question and this case should dismissed. It was also submitted that the respondent would welcome the complainant on board any of their services as he chooses.
Mr B gave evidence that he exchanged some correspondence with the complainant regarding his queries and complaints and in cross examination Mr B said that some people found visors more useful than face masks.
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Findings and Conclusions: CA-00045255-001
The complainant submits that he sent an ES1 on 15/03/2021. The respondent denies receipt of this. The complaint was received by the WRC on 16/07/2021 and refers to incidents that may have occurred on the first occasion on 08/08/2020 and the most recent incident of discrimination occurred on 15/05/2021. The complainant submits that he was discriminated against on the grounds of his disability of PTSD and severe anxiety and the respondent failed to provide reasonable accommodation. The respondent did not dispute his medical disability but submits that the complaints are out of time and that no ES1 was received.
Section 21 outlines Redress in respect of prohibited conduct. 21.—(1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission. (2) Before seeking redress under this section the complainant— (a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of (i) the nature of the allegation, (ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, [to seek redress under this Act], and (b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions. (2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.
(3) (a) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may— (i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or (ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction, and, where such a direction is given, this Part shall have effect accordingly.
(b) In deciding whether to give a direction under paragraph (a)(ii) the [Director of the Workplace Relations Commission [or, as the case may be, the Circuit Court] shall have regard to all the relevant circumstances, including— (i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and (ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint. (4) The [Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall not investigate a case unless the Director of the Workplace Relations Commission] or the Circuit Court, as the case may be,] is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.
(5) The Minister may by regulations prescribe the form to be used by a complainant and respondent for the purposes of subsection (2).
[(6) (a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.
(b) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court] may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.
A copy of an ES1 was provided dated 15/03/2021 and the instant complaint was not received by the WRC until 16/07/2021. While I note that the respondent submits that they did not receive the ES1, I note that the ES1 is not a statutory form and the respondent did receive correspondence from the complainant regarding complaints within the cognisable period of 6 months.
The complainant’s evidence was that owing to his medical disability he was medically exempt from wearing a mask and did not believe he had to demonstrate this exemption as it was between him and his God and his doctor.
Under Section 4 discrimination includes Discrimination on ground of disability. 4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service. (2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question. (3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination. (4) Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.
Section 38A of the Acts applies to complaints of discrimination requiring the complainant to establish facts from which discrimination may be inferred. Where such a prima facie case has been established, the onus shifts to the respondent to rebut the inference of discrimination.
In Southern Health Board v Mitchell [2001] ELR 201 – the Labour Court considered the extent of the evidential burden imposed on a Complainant as follows: “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”
Furthermore, the Labour Court outlined in Melbury Developments Ltd v Valpeters [2010] ELR 64, that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.
I note that the complainant submits that he requested an extension of time owing to covid, covid may explain his delay but does not excuse the delay and there was nothing that excuses the failure of the complainant to submit his complaint within six months. Having carefully examined all the evidence and submissions, I am satisfied that the incidents referred to took place during the pandemic when the Respondent was endeavouring to keep staff and customers safe and comply with health and safety law. While the Complainant stated that he had an exemption he refused to provide any details to the respondent during the cognisable period of his medical disability and his allegations of discrimination on the grounds of disability are mere speculations or assertions. As the complainant has not established a prima facie case of discrimination on the disability ground, therefore, I find that the respondent has not engaged in prohibited conduct.
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Decision:
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
CA-00051973-001 I find that the complaint it out of time and I do not have jurisdiction to hear this complaint. CA-00045255-001 The complainant has not established a prima facie case of discrimination on the disability ground therefore, I find that the respondent has not engaged in prohibited conduct |
Dated: 06th September 2024.
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Equal status, mask wearing, covid |