Bakare - v - Lynx Transport
This dispute concerns a complaint by Mr Saheed Bakare that he was dismissed by Lynx Transport on 29 June, 2004 in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998-2004 and contrary to section 77(1) of those Acts
2.1 The complainant referred his complaint to the Equality Tribunal on 22 July, 2004 alleging that the respondent had dismissed him in circumstances amounting to discrimination on grounds of race contrary to the Employment Equality Acts, 1998-2004. The referral form stated that the complainant resided at an address in Galway city. The Director of the Tribunal referred the matter to mediation in accordance with section 78 of the Acts. The complaint was not resolved by mediation and subsequent to the process the mediator encountered difficulty contacting the complainant as he had moved to the England.
2.2 In accordance with her powers under the Acts the Director delegated the complaint to Ms. Mary Rogerson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Written submissions were received from both parties. However Ms. Rogerson was unable to hold a Hearing on the complaint before she commenced a lengthy period of absence from the Tribunal and the Director re-delegated the complaint to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts.
2.3 Mr. Jackson wrote to the parties on 19 September, 2005 advising the he would hold the Hearing of the complaint on 21 November, 2005. The Equality Officer sent this letter to the complainant at three separate addresses - the address in Galway furnished on the referral form and addresses in London and Manchester which the complainant had communicated to the Tribunal subsequently. The complainant replied to the letter on 27 September, 2005 advising that the date for the Hearing was unsuitable and sought an adjournment. This letter gave a fourth address (in Manchester) for the complainant. The respondent also sought an adjournment due to pressure of work and the Equality Officer agreed to reschedule the Hearing until January, 2006 - this decision was communicated to the parties by letter dated 12 October, 2005. This letter was sent to the complainant at the last address (in Manchester) which had been communicated to the Tribunal.
2.4 The Equality Officer wrote to the parties on 20 December, 2005 - in the complainant's case the letter was sent to the last known address in Manchester- advising that the Hearing was rescheduled for 12 January, 2005 at 2:30pm at a venue in Galway. The respondent arrived in time for the Hearing with his witnesses. As there was no sign of the complainant, the Equality Officer indicated that he would defer commencement of the Hearing for 30 minutes in case the complainant had been delayed. When the complainant had not appeared by 3pm the Equality Officer convened the Hearing as he was satisfied that the complainant had been made fully aware of the Hearing details and no explanation had been communicated to the Tribunal as to why he was unable to attend. As the respondent was not legally represented the Equality Officer explained that in cases under the Employment Equality Acts the onus was on the complainant in the first instance to provide evidence establishing a prima facie case and that it was essential, in the interests of natural justice and fair procedures, that such evidence is provided in the presence of the respondent to afford it the opportunity to challenge any allegations made against it. The Equality Officer explained that in the absence of Mr Bakare to give evidence he was of the view that no prima facie case had been established and that a Decision to this effect would issue. The Hearing concluded at 3.20pm.
In complaints such as this responsibility rests with the complainant in the first instance to establish a prima facie case of discrimination. The complainant did not attend the Hearing on 12 January, 2006. Section 18 of the Interpretation Act, 1937 provides as follows:
Whilst the Employment Equality Acts, 1998-2004 do not specifically require the "service" of notification of details of a Hearing, it would be impractical to hold such a Hearing without informing the parties involved and therefore some form of notification is necessary. Notification of the Hearing was posted to the complainant at the most recent address on record in the Tribunal for him (in Manchester) and I am satisfied that the letter was delivered in the normal course of post. I am therefore satisfied that he was aware of the Hearing and chose not to attend. No explanation had been furnished by the complainant as to why he was unable to attend. I therefore find that a prima facie case has not been established and his complaint must fail.
17 January, 2006