Case Number: ADJ-00021178. Workplace Relations Commission

Docket NumberADJ-00021178
Date05 February 2020
CourtWorkplace Relations Commission
PartiesPatrick Vaughan v Tesco Ireland ltd (amended on consent)
Procedure:

In accordance with Section 25 of the Equal Status Act, 2000, 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 WRC received a written complaint from the complainant in the case on 20 March 2019. There were immediate concerns surrounding the validity of this complaint as it appeared that notification had not been sent to the Respondent in accordance with Section 21 of the Act. The Complainants attention was drawn to “Procedures in the Investigation and Adjudication off Equality complaints “

The Complainant was asked to submit reasons if he was seeking to dispense of this notification period?

On 10 April 2019, the WRC sought a response to their earlier letter of 1 April and informed the complainants representative that “this complaint cannot proceed until these issues have been addressed “

On 15 April 2019, the complainant’s representative confirmed that the respondent had been notified of the complaint within the first two months of the incident of discrimination.

On 31 May 2019 the respondent wrote to the WRC and submitted that the claim was out of time. They subsequently sought details off the complainant’s notification in accordance with Section 21 of the Act.

On 19 July, the complainant’s representative copied a communication from the Respondent dated 20 December 2018 which appeared to withdraw the complainant’s invitation to trade in “light of behaviour reported by other colleagues “She also attached a follow up note to this communique which sought clarification of the behaviour on 11 June 2019.

Summary of Complainant’s Case:

In his written complaint received on March 20, 2019. The Complainants sister and chosen representative outlined that during October 7, 2018 during a shopping trip to his local store, the complainant, who was disabled and in possession of a mental illness, was asked to “put down his goods and leave the shop “He attempted to pay for his goods but was refused. The complainant was reluctant to leave the store without receiving a reason for his refusal and held his ground. He was threatened by Garda intervention.

The Garda attended the site but while sympathetic did not get involved. The Complainant was very upset by these actions as he had an omnipresent mental illness and reliance on medication.

The complaint went on to record that the complainant’s sister rang the Manager of the store the next day to be told that the complainant had been witnessed by a staff member of passing an unspecified comment at a fellow shopper, who promptly left the store.

The complainant habitually shopped for single items and on that day, he was seeking to buy coffee. He had no recollection of passing a negative comment to anyone.

The Complainant submitted that he had been discriminated against in terms of his mental illness and treated with a complete lack of humanity by the respondent. He felt humiliated.

The Case came for hearing and the Complainant was represented by his Sister, who had travelled from the UK. He was also accompanied by his nephew in support.

In response to the Adjudicators line of questioning on whether the complainant had placed the respondent on notice of the events of 7 October 2018 within the time lines set down in Section 21(2) of the Act? The Complainant confirmed that the statutory notification requirements were executed within the 8-week period when she contacted the Respondent Area Manager. She referred to a report dated 11 December and was requested to produce proof of compliance.

The Complainant refused to give evidence to the hearing.

The Complainant’s representative outlined the background to the case. She submitted that she had given the ID number for her complaint to the respondent to the WRC. She also maintained that she had phoned the store several days post 7 October but had not been satisfied with the response she had received.

The Complainants representative had a mental disability of Paranoid Schizophrenia and erratic behaviour supported by a 24/7 medication regime and had been a customer of the Respondent for many years. On 7 October 2018, he went to the shop to buy coffee. He has a habit of speaking to himself and addressed himself on a cheaper brand of coffee.

The Representative outlined that the complainant had been approached to leave the shop without a reason. He was threatened with the Gardai and he was traumatised and humiliated as the shop was full of people. The Customers had not complained him, and he just put down his basket and left the shop. This was an infringement of his human and civil rights.

He was subsequently barred from the store and the complainant’s representative disagreed with the respondent reliance on Section 15 of the Act.

The Complainants representative had spoken to the manager seeking to resolve the matter but there was no resolution. She cited a comparator as others in the shop who did not have a mental illness. He was further disadvantaged by being denied usage of his store loyalty card.

The Complainants representative confirmed that the complainant had not informed the respondent of his mental health condition

At the end of Mr A’s evidence, the complainant, who had already denied the opportunity to present his evidence to the hearing, stood up and began shouting and gesticulating. He stated that he was going home. It was over, and he knew what was going on. This behaviour radiated outside the hearing room and into the hotel foyer.

I could see the visible fear in the room at that point and amongst the respondent witnesses. I adjourned the hearing and separated the parties.

I allowed some time to pass before approaching the Complainants representative to obtain a clear understanding on whether the complainant wished to proceed with his case?

I was informed that the complainant wished his representative to proceed with the hearing without him in attendance to obtain justice in the case and that the earlier behaviour had been prompted by stress.

The Respondent expressed reservations at this behaviour and disputed that the case could proceed with the complainant in attendance.

I explained to both parties that the complainant’s behaviour had upset the participants at hearing and could not be repeated.

I decided to adjourn the hearing until I received a full medical report from the complainants treating consultant which stated that the complainant was deemed fit to participate at the next hearing date. I allowed a 4-week period and wrote to both parties accordingly.

I subsequently received two short summaries from the Complainants representative, neither of which informed me that the complainant was unfit to attend and participate fully at hearing. The letters indicated that the complainant was stable and wished for his family to represent him at hearing.

On 24 October 2019, I wrote to both parties confirming the resumed hearing for the afternoon of October 29,2019, to facilitate the complainant. I offered to permit the witnesses present one by one if would assist the parties.

I requested two outstanding documents to proceed with my investigation

1 Notification of claim to the respondent in accordance with Section 21 of the Act

2 Respondent Conflict resolution Policy referred to during day one of hearing.

At the resumed hearing, the complainant presented an unsigned email dated December 11, 2018 sent to the Respondent customer services, titled “Complaint re Discrimination “This was accompanied by an acknowledgement from the respondent. The Complainant representative submitted that this complied with the statutory notification required and constituted a valid complaint under Equal Status Legislation. She further submitted that the WRC had received the complaint without issue.

The Complainants representative went on to submit that she had not received my letter dated October 24. I appraised her of the contents and reaffirmed the notification requirements provided for in Section 21 of the Act.

Summary of Respondent’s Case:

The Respondent, a Retailer, refuted the claim of discrimination lodged by the complainant. They submitted that the respondent staff had acted in accordance with store policy and they had no knowledge of the complainant’s mental health condition /disability.

The Respondent advanced a preliminary argument that the complainant had not complied with Section 21(2)...

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