Mr. Michael Mongans, Mr. Jim Mongans and Ms. Anne-Marie Mongans
(represented by Ms. Heather Rosen)
Clare County Council
(represented by Michael Houlihan & Partners, Solicitors)
Equal Status Acts, 2000 -2004 - Discrimination, section 3(1) - Traveller
community, Section 3(2)(i) - providing accommodation and housing services Section 6(1)(c) - harassment, section 11 - issues in relation to lodgment of complaints -named respondent, vicarious liability, Section 42 - complainants non-attendance at hearing, adjournment requests - failure to establish a prima facie case.
Delegation under Equal Status Acts, 2000-2004
The complainants referred a number of claims to the Director of the Equality Tribunal under the Equal Status Acts, 2000 -2004. In accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director, delegated the cases to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and also for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000-2004.
1.1 The dispute concerns claims by Mr. Michael Mongans, his son, Mr. Jim Mongans and his daughter Ms. Anne- Marie Mongans that they were discriminated against by named officials of Clare County Council on the Traveller community ground. The complainants allege that the respondent discriminated against them in terms of Sections 3(1)(a), and 3(2)(i) of the Equal Status Act, 2000 and contrary to Section 6(1)(c) of that Act. They also allege that they were harassed contrary to section 11 of the Act. The complaints were lodged in the period 2004 to 2006 and were dealt with as one case surrounding the service provided by the respondent arising from the complainants' application for housing and related accommodation needs and linked issues. They also allege that they were harassed by the Council when notices were served on them to move from sites/open spaces where they had parked.
2.0 Preliminary Issues
2.1 The complainants lodged a number of referral forms with the Equality Tribunal during the period 2004 to 2006 relating to issues connected with housing/accommodation and alleged harassment. An application was made to the Equality Officer by the respondent's representative at hearings from 24th to 26th May 2006 to have all the complaints lodged by the same complainants relating to similar issues heard together. The complainants' representative requested separate hearings for each separate complaint lodged in relation to housing / accommodation needs and related matters.
2.2 The Equality Officer ruled that the later complaint forms lodged by the complainants related to ongoing issues and therefore the original complaint forms lodged with the Tribunal encompassed all the issues and subsequent referrals would be treated as ongoing issues and that all these matters would be dealt with at the one hearing. The Equality Officer informed the parties of this decision.
2.3 The complainants referred the cases against four named officials of Clare County Council and the County Council itself. At the commencement of the hearing an application was made by the solicitor for Clare County Council to have the named respondent changed to Clare County Council.
The Equality Officer considered the provisions of section 42(1) of the Equal Status Acts regarding vicarious liability which provides:
"Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval."
The named officials are all employees of Clare County Council and acted in the course of their employment with the Council. In considering this application I have taken account of a Judgment in the High Court in the case of Faughnan v. Maguire (1) concerning an application to have a named defendant removed from medical negligence proceedings. O' Sullivan J stated:
"From the point of view of the Plaintiff, if it does transpire that a court can be satisfied that Dr. O'Brien is in some way legally responsible for his injury, prima facie (and I accept that this point has not been conceded by the Plaintiff) the first Defendant as employer of Dr. O'Brien, would be " accountable."
O'Sullivan J went on to hold that:
"In my opinion therefore, the balance of justice favours the discontinuance of the action against Dr. O'Brien..."
The reasoning in this judgment is relevant to the application in this case. If the complainants' application for redress is successful Clare County Council will be "accountable". The Equality Officer therefore, considered it appropriate that Clare County Council should be the only named respondent and informed the parties that this is how the cases would proceed.
3.0 Summary of Cases
3.1 The complainants' representative, Ms. Heather Rosen, was notified that the above named complainants, Michael Mongans, Jim Mongans and Anne-Marie Mongans, case was set for hearing on the 26th May 2006 but the complainants did not attend. Mr. Mongan's wife (whose case was also listed) attended and stated that her husband was ill and would not be attending. She also stated that her daughter, Ms. Anne-Marie Mongans would not be attending on that day. The Tribunal procedures were explained to Mrs. Mongans and her representative. They were informed that the complainants must attend and give evidence if they were to establish a prima facie case of discriminatory treatment and harassment and in the event that they were ill a medical certificate had to be produced to the Tribunal. Their cases were adjourned.
3.2 The cases were again scheduled for hearing on 19th September, 2006 and the above named complainants did not attend. Mrs. Mongans again told the Tribunal that her husband was ill and that her daughter would not be attending. A further adjournment of the cases was necessary. A medical certificate was received by the Tribunal on 6th October 2006 in respect of Mr. Michael Mongans, but the certificate did not satisfy me that Mr. Mongans was unfit to appear at the Tribunal hearing on 19th September 2006. The hearing was scheduled again for 17th October 2006 and the complainants did not appear. The complainants' representative told the Tribunal that Mr. Mongans was ill but no medical certification was provided. A medical certificate was subsequently produced to the Tribunal on 19th October 2006 and this stated that Mr. Mongans would find attending the Tribunal very stressful and therefore would be reluctant to attend. It did not state he was unfit to attend on that particular date nor did it state when he would be able to attend. The Tribunal was not given any reason for the non-attendance of Mr. Jim Mongans and Ms. Anne-Marie Mongans.
4 Conclusions of the Equality Officer
4.1 I was satisfied from the complainants' representative that they were aware of the Tribunal hearings scheduled on 17th October 2006. I found that in the case of Mr. Michael Mongans no satisfactory medical certificate (that is that Mr. Mongans was unfit to attend the hearings scheduled on the relevant dates) was produced to the Tribunal and no satisfactory reason was given to the Tribunal for the failure of Mr. Jim Mongans and Ms. Anne-Marie Mongans to appear. No further adjournment was granted. Therefore, having failed to attend the hearing without a valid reason, I concluded that the complainants had not established a prima facie case of discriminatory treatment. I informed the parties present at the hearing that I would issue a written decision dismissing the cases.
5.1 On the basis of the foregoing, I find that the complainants have not established a prima facie case of discrimination and accordingly their cases cannot succeed. I therefore dismiss all the complaints and connected issues referred to the Tribunal by the complainants under the Equal Status Acts 2000-2004 in connection with the above mentioned dispute. (See list of complaints attached at appendix 1)
6.0 Further Matters
6.1 On 1st November 2006 and subsequent to the decision to dismiss the above named complainants' case on 17th October 2006, further referral forms concerning the same issues in relation to accommodation needs and alleged harassment were lodged with the Equality Tribunal on behalf of the above named complainants. Statutory notification in relation to these referrals, in accordance with section 21 of the Equal Status Acts 2000-2004, had been sent to the respondent on 30th December 2005.
6.2 The question I have to consider here is whether the new referral forms received by the Tribunal on 1st November 2006 contained issues which were part of the ongoing issues determined by me at the Tribunal hearing on 17th October 2006 and consequently were determined at that hearing.
6.3 I am satisfied that the parties were on notice that the hearing set for 17th October 2006 would deal with all the issues arising from the complainants' case with the respondent Council regarding housing / accommodation services and related matters. It was made clear to the parties that the original complaint forms lodged with the Tribunal encompassed all the issues under investigation and subsequent referrals to the Tribunal concerning these issues were to be considered as matters of an ongoing nature and would be dealt with at the one hearing. I am satisfied that the correspondence to the Tribunal received on 1st November 2006 is part of the same alleged ongoing situation and consequently is part of the same case being dealt with herein. Likewise I am satisfied that both the respondent and complainants were aware that the all matters would be dealt with at the hearing arranged for 17th October 2006 from the letter of notification of the hearing which informed them of this fact. I am also satisfied that both parties were on notice of the matters contained in the referral of 1st November 2006 since 30th December 2005 and would therefore have considered them to be part of the case listed for 17th October 2006. I am satisfied that the correspondence referring an issue to the Tribunal of 1st November 2006 is additional material arising from the original case referred to the Tribunal and is not therefore a de novo complaint. Consequently this matter has already been determined by the Tribunal. (see paragraph 5.1 above)
8th December, 2006
(1) Faughnan v. Maguire & Ors, O'Sullivan J. High Court Unrep. 23rd June 2006
Complaint References Date Received
ES/2004/285 (Michael Mongans) 14/1/2004
ES/2004/288 (Jim Mongans) 14/1/2004
ES/2004/291 (Anne Marie Mongans) 14/1/2004
ES/2004/436 (Michael Mongans) 14/1/2004
ES/2004/439 (Jim Mongans) 14/1/2004
ES/2004/442 (Anne Marie Mongans) 14/1/2004
ES/2005/149 (Michael Mongans) 20/6/2005
ES/2005/318 (Michael Mongans) 22/8/2005
ES/2005/322 (Michael Mongans) 22/8/2005
ES/2005/327 (Michael Mongans) 22/8/2005
ES/2005/329 (Anne Marie Mongans) 22/8/2005
ES/2005/357 (Michael Mongans) 22/8/2005
ES/2005/360 (Anne Marie Mongans) 22/8/2005
ES/2005/363 (Jim Mongans) 22/8/2005
ES/2005/413 (Michael Mongans) 22/8/2005
ES/2005/416 (Anne Marie Mongans) 22/8/2005
ES/2005/419 (Jim Mongans) 22/8/2005
ES/2005/533 (Michael Mongans 22/8/2005
ES/2005/536 (Anne Marie Mongans 22/8/2005
ES/2005/539 (Jim Mongans) 22/8/2005
ES/2005/789 (Michael Mongans) 14/11/2005
ES/2005/792 (Anne Marie Mongans) 14/11/2005
ES/2005/953 (Michael Mongans) 19/12/2005
ES/2006/006 (Michael Mongans) 9/01/2006
ES/2006/006 (Anne Marie Mongans) 9/01/2006
ES/2006/006 (Jim Mongans) 9/01/2006
ES/2006/144 (Michael Mongans) 1/11/2006
ES/2006/144 (Anne Marie Mongans) 1/11/2006
ES/2006/144 (Jim Mongans) 1/11/2006