Equality Officer Decision
Mr. Jim Mongans & Mrs. Winnie Mongans and children Mary-Bridget, Lisa, Martin, Michael & Martina
(represented by Ms. Heather Rosen)
Clare County Council
(represented by Michael Houlihan & Partners, Solicitors)
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 for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000-2004.
1.1 The dispute concerns claims by the above named complainants that they were discriminated against by named officials of Clare County Council and Clare County Council itself 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 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.
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. The Equality Officer arranged a procedural hearing on 24th May 2006 to deal with issues arising from the number of complaints referred on behalf of a large group of complainants against the same respondent. The first matter for decision was how each individual complainant's case would proceed. I took the decision to sort the complaints into family groups because each family had the same history in relation to housing and related matters. Therefore each family group would have a separate hearing before the Equality Officer
2.2 The second matter dealt with, at these hearing, concerned issues around the manner in which the complaints were lodged with the Tribunal. The complainants' representative referred separate complaint forms to the Tribunal in relation to each instance of alleged discrimination by the respondent. At the procedural hearing an application was made to the Equality Officer by the respondent's solicitor to have all the complaints lodged by the same family group of complainants relating to similar issues heard together. The complainants' representative requested separate hearings for each separate allegation of discrimination referred to the Tribunal concerning housing / accommodation and related matters.
The Equality Officer having considered the matter 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 that all matters would be dealt with at the one hearing. The Equality Officer informed the parties of this decision.
2.3 The third issue dealt with at the procedural hearing concerned the named respondents. The complainants referred their cases against the respondents, Mr. Alec Fleming, Mr. Tom Coughlan, Ms. Madeleine McCarthy and Mr. Phil Coll, all officials of Clare County Council, and the County Council itself. An application was made by the solicitor for Clare County Council to have the named respondents' name changed to Clare County Council only. The complainants' representative requested that the cases proceed against the named officials as well as 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.
The Equality Officer considered the application and taking into account the provisions of Section 42(1) of the Act and ruled that Clare County Council should be the only named respondent and informed the parties that this is how the cases would proceed.
3. Further Issues in Relation to the Named Respondents
3.1 Subsequently in September 2006, at the hearing of another complainant family, an issue arose concerning the role of Ennis Town Council in relation to housing and other matters. Matters concerning Ennis Town Council were also raised in the case herein. The complainants' representative submitted that she had objected a number of times to the removal of the named officials as respondents in the cases and proceeding against Clare County Council only. She stated that she named the relevant officials as respondents as she understood that they carried out functions in Ennis Town Council. The role of the named officials in Ennis Town Council was not raised at the procedural hearing in May.
3.2 I sought clarification from the solicitor and the officials of Clare County Council concerning the role of Mr. Coughlan and Mr. Fleming as there was some confusion about
3.3 their respective positions at that time. I requested the solicitor for Clare County Council to provide a written submission clarifying the roles of both Mr. Coughlan and Mr. Fleming in relation to Ennis Town Council. This submission was received in January 2007. Mr. Alec Fleming is the County Manager with official responsibility for the whole county including Ennis Town Council and other Councils. Mr. Tom Coughlan is the Director of Services for Clare County Council and Town Manager for Ennis Town Council. It is clear to me from this information that the 2 named officials have a dual function and both are providing services for some of the complainant families in respect of housing and related matters in both Clare County Council and Ennis Town Council.
3.4 It should be noted that I decided, following the application of Clare County Council's solicitor, that the named respondent should be Clare County Council, but it is clear that no such application was made to me in respect of Ennis Town Council. Neither Mr. Fleming nor Mr. Coughlan appeared at the hearings to make such an application. It has been stated during hearings of these matters, by the representative for Clare County Council, that he is not representing Ennis Town Council. It surprising that the representative did not inform the Tribunal that his application regarding the identification of the respondent was only in respect of the functions carried out by Mr. Fleming and Mr. Coughlan for Clare County Council. The failure to notify the Tribunal of the whole relationship between the named officials, Clare County Council and Ennis Town Council at a much earlier stage is also surprising.
3.5 Subsequent to the respondent solicitor providing the submission concerning the relationship between the named officials and Ennis Town Council he made a further written submission on the17th January 2007, to the Tribunal stating that "it is not open to the Tribunal to join a party at this stage to the proceedings where it has not been properly notified of the complaint against it."
3.6 I am satisfied that the Tribunal is not joining a party to the proceedings but is continuing to investigate the complaints against the named respondents validly before the Tribunal. While issues arose in this and other cases against Ennis Town Council's named officials, no decision has been made by the Equality Officer regarding the admissibility of any of the complaints against Ennis Town Council, or the vicarious liability of Ennis Town Council in respect of the named officials, as the complainants did not proceed with their complaints in these cases.
The decision made by the Equality Officer in respect of the complaints against Clare County Council dealt solely with the vicarious liability of Clare County Council in respect of the named officials carrying out their functions as employees of Clare County Council. Their functions in Ennis Town Council would appear to me to be an entirely separate matter and if issues arise in future cases in relation to Ennis Town Council the Equality Officer can hear the evidence and submissions from both parties on the issue before making a decision.
3.6 I also note in the submission of 17th January 2007 the solicitor for Clare County Council stated "..I had made an application in May purposely to limit the manner in which these cases were allowed to proceed as against the individuals or as against the corporate body and I made it clear that if there was an attempt to proceed against both that I would bring proceedings to prohibit any such intended procedure."
3.7 It should be noted that the Equal Status Acts 2000-2004 provides that a complaint of discrimination may be referred against a named person or an organisation, public body or other entity. The Act provides:
"6.- (1) A person shall not discriminate in-......
(c) providing accommodation ...."
Section 2(1) defines the term person:
""person" , as that term is used in or in relation to any provision of this Act that prohibits that person from discriminating or from committing any other act or that requires a person to comply with a provision of this Act or regulations made under it, includes an organisation, public body or other entity;"
3.8 The Act provides that a complaint of discrimination can be referred against a person as happened in this case, where the complainants referred the case against four named officials and Clare County Council itself. If that person is found to have discriminated in the course of his/her employment (for example implementing a policy on behalf of the employer which may be found to be discriminatory) then that person's employer may be vicariously liable in accordance with Section 42(1) of the Equal Status Act 2000-2004.
3.9 I am surprised to learn from Clare County Council's solicitor that he purposely made an application to the Tribunal in order to limit the manner in which the complaints could validly proceed before the Tribunal, or that he believed that it was within his authority to purposely limit the ambit of the Equality Officer's investigative powers. To set out to "purposely limit the manner in which these cases were allowed to proceed" might be considered under Section 37(1) of the Act as obstructing or impeding the investigative role of the Equality Officer. I do accept that this was not the intention in this case. Nevertheless it should be noted that this action is not appropriate. It should also be noted that once a complaint is validly before the Equality Tribunal and referred for investigation then the Equality Officer must investigate all matters relevant to the complaint and issue a decision.
4. Traveller Accommodation Programme
4.1 The complainants' representative submitted that the implementing authority for the Traveller Accommodation Programme is Clare County Council and consequently that they were responsible for the actions of Ennis Town Council.
Two Traveller Accommodation Programmes one in 2000 and the other in 2005 were adopted by Clare County Council in accordance with their statutory obligations under Section 7 of The Housing (Traveller Accommodation) Act 1998. Both Programmes provide that: "Under the Housing (Traveller Accommodation) Act 1998 Clare County Council is the relevant housing authority for the entire County. In accordance with the requirements of the Act Ennis U.D.C. and Kilrush U.D.C. will be the implementing authorities for elements of the Traveller Accommodation Programme."
With regard to vicarious liability Section 42(2) of the Equal Status Acts 2000-2004 provides as follows:
"Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act as done also by that other person.
However it is not necessary for me to make a decision regarding vicarious liability in this case as the complainants did not continue with their case and consequently the respondents have not been given an opportunity to address this issue. The issue will be dealt with if it arises in a future case when both parties will have an opportunity to make submissions on the matter.
5. Summary of the Events in this Case
5.1 The complainants attended a hearing set for 21st September 2006. Mr. Jim Mongans gave his direct evidence, but during the course of his cross examination he left the hearing without an acceptable explanation. He said that he had to collect his children from his brother's house. It should be noted that the hearing had already been adjourned for a period earlier that day to allow Mr. and Mrs. Mongans to collect their younger children from school. I also told Mrs. Mongans at that time that she could remain at home with her children in the afternoon as it was clear to me that Mr. Mongans would be giving evidence for the remainder of the afternoon. On Mr. Mongans return from collecting his younger children he informed the Tribunal that he had made arrangements for the collection of his older children from school and would not require the break he had requested earlier.
When Mr Mongans left the hearing I directed his representative, Ms. Heather Rosen, to inform Mr. Mongans of the consequences of his actions and to return to the hearing. Mr. Mongans did not return and he requested that his case be adjourned to the end of the list of cases. This request was refused. I directed his representative that Mr. Mongans should appear to complete his evidence and cross examination the following day 22nd September 2006 at 10am. I also directed that Mrs. Mongans should attend the Tribunal. Mr. Mongans attended as requested and he apologised to the Tribunal for his behaviour on the previous day. This was accepted and the hearing resumed. However, Mrs. Mongans did not attend. Mr. Mongans then requested to leave at 11:30am to take his child to the doctor and this request was granted.
5.2 The complainants' case was again set for a resumed hearing on Monday 16th October 2006. The complainants did not appear at the Tribunal hearing. Their representative told the Tribunal that their child had been admitted to hospital in Limerick and neither Mr. nor Mrs. Mongans would be attending the Tribunal as they expected their child to be in hospital for the week. The complainants' representative undertook to provide a medical certificate. She provided a medical certificate from the GP on the 17th October 2006 which indicated that the child would be in hospital for a week. During the course of other hearings of cases against Clare County Council listed for the week of 16th to 20th October 2006 the respondent's representative suggested that Mr. Mongans had been seen at social events. I requested that Mr. Mongans appear before the Tribunal on Friday 20th October 2006 and I also requested that a medical certificate be obtained from the hospital. I subsequently received a medical certificate from the hospital which confirmed that the child was an in-patient there until 18th October 2006. She was discharged on that date and collected by her parents on 19th October 2006.
5.3 The complainants' representative subsequently handed in a letter to the Tribunal on behalf of the complainants requesting that I withdraw from hearing the case. I informed her that I would not be acceding to the request. (For the background to this event see case of Michael Mongans & Ors v Clare County Council, DEC-S2006-084 and Patrick Mongans & Ors v Clare County Council, DEC-S2006-085). Mr. Jim Mongans did not attend the Tribunal as instructed on Friday 20th October 2006. The complainants' representative again requested the Director to appoint a different Equality Officer to hear the case. By letter dated 27th October the Tribunal informed her of the reasons why this would not happen.
5.4 As I was satisfied that the complainants' child was in hospital for a part of the relevant week in October I decided to put the case on a list for a callover on Monday 15th January 2007. I also requested the complainants to be on standby for the resumption of the hearing of the case on Tuesday 16th January 2007. The complainants did not attend. Their representative submitted that Mr. Mongans had established a prima facie case as he had already gave his evidence at the hearing. It should be noted that Mr. Mongans had not given evidence on all the complaints he had submitted to the Tribunal and neither was his cross examination concluded. The respondent's representative requested that I dismiss the cases.
6 Conclusions of the Equality Officer
6.1 I am satisfied that the complainants were on notice that the Tribunal hearing in their case was scheduled for the week commencing Monday 15th January 2007 and no valid reason was given for their non-attendance on this occasion. I am also satisfied that the complainants were on notice, that all matters referred to in their complaint forms lodged with the Equality Tribunal involving the named respondents, would have been dealt with at this hearing if they had attended. Given the previous difficulties with their attendance and the warnings issued by the Equality Officer, I am satisfied that both the complainants and their representative were on notice both orally and in writing of the consequences of their failure to attend without valid and exceptional reasons.
As there was no appearance by the complainants and as Mr. Mongans had not completed his evidence and Mrs. Mongans had failed to provide any evidence in relation to her complaint, I find that they have failed to establish a prima facie case of discriminatory treatment.
7. Issues Concerning the Hearing
7.1 I do accept that the complainants' baby was in hospital during one of the scheduled hearings on 16th October 2006 and that Mrs. Mongans could not attend. However, I have also noted that the baby was discharged from the hospital on the 18th of October and was collected by the parents on the 19th of October. Likewise I have also noted that Mr. Mongans did not attend the hearing as directed on 20th October, and at that stage the baby was out of hospital. Overall I find that the complainants' behaviour in relation to cooperating with the hearing of this case was unacceptable. Mr. Mongans left a hearing without a valid reason during the course of cross examination, resulting in the hearing being adjourned to the following morning when he could only attend for a short period and Mrs. Mongans did not attend. Mr. & Mrs. Mongans were required by me to attend the Tribunal on 22nd September 2006. Mrs. Mongans did not attend and Mr. Mongans left after a short time, despite having walked out on the Tribunal the previous day. Both complainants were notified to attend on 15th January 2007 and they failed to appear and again failed to turn up the following day when their case was scheduled for hearing. No valid explanation was provided for their non-attendance. This behaviour has resulted in a lot of wasted time and resources for the Tribunal and for the respondent party.
7.2 Every opportunity has been afforded by the Tribunal to the complainants to have their case heard. I am of the view that the complainants willfully abused the opportunities provided. I am concerned that the respondents turned up with their legal representatives on all occasions when the case was listed, thereby incurring legal costs and expenses. I am also conscious that there is a cost to the public, in that the Tribunal's time has been wasted on a number of occasions and unnecessary costs have been incurred, all resulting from the complainants' behaviour and non-appearance.
7.3 Section 37A of the Equal Status Act, 2000 as amended by the Equality Act, 2004 empowers the Director to award expenses. Section 37A provides that:
(1) "the Director may, if of the opinion that a person is obstructing or impeding an investigation, order that the person pay to another person a specified amount in respect of travelling or other expenses incurred by that other person in connection with the investigation."
(2) Notwithstanding subsection (1), expenses shall not be payable in respect of the attendance at the investigation of any person representing a complainant or respondent."
I find that the complainants' behaviour and actions obstructed and impeded my investigation and an award of expenses to the respondent is warranted. I cannot make an award in respect of expenses in connection with representatives.
7.4 I note that there were two officials from Clare County Council present each day the case was scheduled and I am satisfied that they would qualify under the Act for expenses in connection with the investigation and attendance at the hearings. As the officials did not incur travelling expenses as the hearing took place in Ennis adjacent to their place of work, I am not making an award under this heading. I can make an award in relation to other expenses which could include time spent by the two officials in collating the material for the case, salaries in respect of their time spent at the hearing, meals, telephone calls, photocopying and other expenses in connection with the investigation. Taking into account the limited means of the complainants I am satisfied that an award of €400 would be appropriate in the circumstances.
8.1 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 their cases and connected issues (ES/2004/151, ES/2004/251-254, ES/2004/453-457, ES/2005/137-142, ES/2005/783-788 & ES/2006/117) in respect of Jim and Mary Mongans and their children Mary Bridget, Lisa, Martin, & Michael referred to the Equality Tribunal against Clare County Council.
8.2 I order the complainants Mr. & Mrs. Jim & Winnie Mongans to pay to Clare County Council a total sum of €400 (four hundred euro) expenses in accordance with Section 37A of the Equal Status Acts 2000-2004.
23rd February 2007