|RGDATA has urged Retail Minister Neale Richmond to provide funding for legal costs incurred by retailers who have successfully defended Workplace Relations Commission cases taken by individuals opposed to the public health requirements on mask wearing.
In a letter to Minister Richmond, RGDATA’s Tara Buckley raised concerns on “an issue which is leaving an unfortunate legacy from the COVID-19 Pandemic and is directly relevant to two areas within your portfolio. This relates to cases involving the Workplace Relations Commission taken against retailers by individuals opposed to the public health requirements on mask wearing. Regrettably given the lag time for hearings with the WRC, many of these cases are only concluding now – a significant period after the pandemic restrictions were lifted.
“By way of context, as you will be aware, the vast majority of Food Retailers, including
RGDATA members remained open right throughout the COVID 19 pandemic and
owners and staff continued to provide an essential service to their local communities.
Our members invested significantly in PPE equipment and introduced additional public
health measures to keep their customers and staff safe.
“As one of the few retail formats that remained open through the pandemic, retailers also
had to play a significant role in ensuring compliance with the applicable public health
requirements and in particular to ensure that customers wore face masks and complied
with social distancing requirements. This required significant costs to facilitate
compliance through reduced footfall and increased supervision and security. Our
members accepted these costs in the spirt of the national crisis that applied at the time
and in order to comply with the law.
“However, there were also a significant number of individuals who took it upon
themselves to challenge the public health rules. Some did this through being abusive or
hostile to shop owners and their staff. Others went further and took cases to the
Workplace Relations Commission alleging that our members insistence on the customer
wearing a mask constituted discrimination.
“While RGDATA understands that the WRC has rejected all defended cases taken
against retailers, the defence of these cases is incurring considerable costs for retailers.
For example we are aware of one retailer in the North East who had to defend three
different cases from the same anti mask protester. The retailer won all three cases, but
incurred costs of €10,000 in doing so, in circumstances where the retailer is not able to
seek recovery of the costs against the unsuccessful complainant. The retailer
understandably feels aggrieved to have been hit with such a bill, in circumstances
where he was merely seeking to comply with and enforce compliance with Government
Public Health requirements. The risk for the retailer is that if the cases are not defended,
then the complainant could get an award by default as has happened.
“In circumstances where these costs were incurred by retailers in a context of securing
compliance with the Government’s public health requirements around COVID 19, and
given the lack of recourse that is available to retailers to recoup these costs (which are
otherwise lost for investment or job creation prospects), RGDATA requests that your
Department should establish a discrete fund whereby retailers who have successfully
defended a claims before the WRC arising from the enforcement of Public Health Rules
in a retail premises, can have the proven costs of mounting the defence, recompensed
by the State. This will cover a finite number of specific cases given that no new tranche
of cases can be litigated and there will be an official record within the WRC of all cases
that have been taken.
Failure to make some allowance for the costs incurred by retailers in defending such
cases will leave them at a loss arising from the enforcement of public health obligations
and the requirement to meet such claims prosecuted through State run agency, the
WRC. This would be deeply unfair against a cohort of businesses that have behaved
responsibly in the provision of an essential service.”
RGDATA is keen to engage further with the Minister for a fair outcome on this issue.