ADJ-00032708 - Workplace Relations Commission Catherine Dunne v Adrian Corcoran

• Judgment Date: 13 January 2023
• Year: 2023
• Docket Number: ADJ-00032708
• Hearing Date: 21 September 2022
• Date: 13 January 2023
• Court: Workplace Relations Commission
• Respondent: Adrian Corcoran

Procedure:

On the 28th March 2021, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Equal Status Act. On the 29th April 2021, the complainant referred a second complaint regarding a different incident. The complaints were referred to adjudication on the 21st September 2022 and it was a hybrid hearing.

The complainant attended the hearing and was accompanied by Neil Armstrong. The respondent was represented by James O’Donnell BL instructed by Michael Keaveny, solicitor. Adrian Corcoran attended in person while June Corcoran attended via video-link.

The complaints were heard along with complaints in ADJ-00033002 against a different respondent but relating to the same incidents. They were also heard with ADJ-00033005 relating to the same incidents, albeit with An Post as the respondent.

In accordance with section 25 of the Equal Status Act, 2000following the referral of the complaints to me by the Director, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The complaints are of discrimination and harassment on grounds of disability in accessing a service. The respondent is an owner of a retail premises, which contains a post office counter. The complaints relate to incidents of the 3rd and 7th December 2020 when the complainant sought a service at the post office counter within the retail premises.

Summary of Complainant’s Case:

After being affirmed, the complainant outlined that she was discriminated against in seeking to access a service at the respondent post office/retail premises. On the 3rd December 2020, the complainant attended the premises to send a registered letter and the respondent would not serve her as she was not wearing a mask. The complainant told the respondent that she was medically exempt, and the respondent insisted that she show her exemption. The respondent threatened to contact the Gardai. The complainant went to get her exemption and the respondent came out of the premises and shouted at her. The respondent handed her a newspaper cutting which referred to there being an €80 fine and the complainant said that this was intimidatory. The complainant said that on the 7th December 2020, she returned to the post office to buy stamps and the respondent came out. He said that he would not serve her, and she replied that she was exempt from having to wear a mask and that she did not have to show him her exemption. She said that another customer was later served without wearing a mask. The complainant said that the signs requiring the wearing of masks constituted harassment. In cross-examination, it was put to the complainant that she had not provided the respondent with evidence of her disability; she replied that she had produced the letter of exemption and that this constituted ‘reasonable excuse’ per the Regulations. She said that she would put her life at risk if she wore a mask and was not obliged to wear a mask per the Regulations. She stated that she was not an anti-masker. In closing, the complainant outlined that the respondent had misunderstood the legislation. A post office was not then covered by the Regulations, and she also had a reasonable excuse. The medical letter was sufficient. The respondent had not afforded her respect and calling the Gardai and the signs constituted harassment.

Summary of Respondent’s Case:

Adrian Corcoran, the respondent to these complaints, gave evidence under affirmation. He said that this had been a stressful and traumatic time. They were trying to adhere to the Regulations and to protect vulnerable customers. He said that catching Covid could be ‘lights out’ for vulnerable customers or their family members. The complainant entered the store, and he told her that she had to wear a mask. He dealt with the complainant on the 7th December and said that she had been trying to antagonise him. He outlined that he would have accommodated the complainant had she had a proper exemption, for example by dealing with her outside of the premises or when the shop was closed. In cross-examination, he outlined that he had been going by the Government guidelines and had not looked for the complainant’s medical records. He said that he had referred to contacting the Gardai because of the complainant’s behaviour. June Corcoran gave evidence under affirmation. In respect of the 3rd December 2020, she outlined that this was a stressful time, and she had a good relationship with the elderly customers. She facilitated customers who could not wear a mask as best she could and who showed her proper documents. She said that the complainant’s document did not look official and not like the others she had seen. She said that she would have accommodated the complainant, had she asked. In cross-examination, Ms Corcoran said that the letter presented by the complainant was not the letter she saw on the 3rd December 2020. She described the complainant as being bullying and aggressive in the incident. She said that she had pulled her mask down at the time of the incident.

Findings and Conclusions:

These are complaints pursuant to the Equal Status Act. The complainant asserts that she was discriminated against and harassed on the 3rd and 7th December 2020. The respondent does not accept this to be the case. The parties gave evidence, as summarised above. Two videos were shown at the hearing and the parties commented on their contents. Review of video footage The parties played two sets of video footage. The respondent played footage of the 3rd December 2020 taken from a store camera. This depicts the complainant approaching the counter and holding a small, laminated version of the letter of exemption. Ms Corcoran approached the complainant and interacted with the complainant. The complainant said that Ms Corcoran was not wearing a mask. Ms Corcoran said that the complainant had been pointing her finger. The video footage of the 7th December 2020 was taken by the complainant and depicts her approaching the post office counter. The respondent is heard refusing to serve the complainant, who refers to disability and states that the respondent is discriminating against her. Statutory background – section 31A Health Act The complainant outlined...