Courts

Man who says he was harassed for not wearing face mask in shop fails in discrimination claim

Dorin Dusa demanded to hear defending barrister’s medical history before revealing any details of disability

Dorin Dusa alleged he was discriminated against on the basis of disability under a shop face mask policy. Photograph: Alan Betson/The Irish Times

Mon Jul 4 2022 - 12:30

A man who claimed he was harassed for not wearing a face mask in a shop and demanded to hear a defending barrister’s medical history before he would reveal any details of his disability, has failed in a discrimination claim before the Workplace Relations Commission (WRC).

Dorin Dusa complained against both retailer Heatons Unlimited Company and security contractor Bidvest Noonan (ROI) Ltd, alleging he was discriminated against on the basis of disability under a shop face mask policy.

Mr Dusa told the Commission in March that he was shopping with his 14-year-old daughter at the Westend Retail Park in Blanchardstown, Dublin 15 on August 28th, 2020, when he walked into the Heatons store there.

He said he smiled at the security guard and walked in but then felt a hand on his shoulder and a voice asking: “Put your mask on.”

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“I want to know why I was assaulted in front of my daughter,” he said, claiming the security guard should have summoned gardaí if there was a problem.

“The sole motive as to why [the guard] stopped me and put his hand on my shoulder and harassed me in front of my daughter is solely because I did not wear a mask,” he said.

“Therefore the harassment is solely on the basis of disability,” he said, saying he was medically exempt from the mask regulations and told the security guard as much.

“You say you were exempt. You say you told [the guard] you’re exempt. Tell us about the exemption,” said adjudicating officer Penelope McGrath.

“That’s sensitive data,” Mr Dusa replied.

Medical records

He said he would not open his medical records to a public hearing and objected to the details being heard by opposing counsel and the presence of any journalist at the hearing. Mr Dusa insisted he would only allow the adjudicating officer to look at them.

Mr Dusa said “the public has no right to know” about his medical history and insisted on completing his submission.

“I’ve explained the law to you and you still don’t get it,” he told the adjudication officer.

Ms McGrath said she would have to make her decision on the basis of the evidence that was opened to the tribunal.

“I will not be looking at the sensitive data unless Mr Whelan and Mr Reilly will be looking at it,” she said.

“You can make any decision you want ... we’ll see what happens. That’s absolutely disgraceful,” Mr Dusa said.

“I don’t really care. It’s none of my business but insofar as he’s sued my client, it is,” said Andrew Whelan BL, who appeared for Heatons.

“If you tell me your medical history, I’ll tell you mine,” Mr Dusa said, saying he had submitted medical records to the WRC.

“Evidence has to be formally opened to the tribunal,” Ms McGrath said.

“Did you have gonorrhoea in your life, Mr Whelan? Do you see where I’m going?” Mr Dusa asked.

“This is the way the adversarial system works. They have the right to challenge your evidence in cross-examination,” Ms McGrath said.

The complainant began to protest again.

‘This is madness’

“I don’t consent to this. This is disgraceful, this is madness, my rights are being trampled on,” Mr Dusa said. “I will go to the Supreme Court on this — I know my rights,” he added.

Under questioning from Andrew Reilly, for Bidvest Noonan, Mr Dusa accepted he had not made a complaint to gardaí about any alleged assault by the company’s staff.

Mr Reilly said Bidvest Noonan had carried out a “thorough investigation” and “wholly rejects” Mr Dusa’s claims.

In his closing arguments, Mr Whelan said Mr Dusa had made “rambling references” to his privacy rights but had failed to discharge the burden of proof in respect of his disability.

Mr Dusa then interrupted him and disclosed a range of health complaints he said justified a medical exemption from the face mask rules, but these were not subject to cross-examination.

Mr Whelan said it had taken Mr Dusa two hours and 38 minutes to reveal those details.

In twin decisions on the complaints just published by the WRC, adjudicating officer Penelope McGrath wrote that Mr Dusa “raised the spectre of a possibility of his having an exemption without actually saying he had an exemption, and certainly without proving he had an exemption”, she wrote.

She noted the security guard was faced with a “confrontational conversation” and eventually “gave up” and let Mr Dusa go ahead into the shop.

“Unusually, the complainant has invited me, as adjudicator, to look at and consider [medical] information but has refused to allow the respondent have sight of same. Quite rightly, the respondent has objected to the admissibility of any such evidence,” she wrote.

Mr Dusa did not tell the security guard on the day he had a disability which allowed him not to wear a mask, Ms McGrath wrote.

“When challenged, the complainant appears to have goaded and annoyed security staff who eventually just left him to it,” she added.

She found Mr Dusa had not established a prima facie case for either Bidvest Noonan or Heatons to answer, and ruled neither had discriminated against the claimant.

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