Equality Officer Decision
Mr. Tommy O'Donoghue & Mrs. Rita O'Donoghue and Children
(represented by Ms. Heather Rosen)
Clare County Council
(represented by Michael Houlihan & Partners, Solicitors)
Equality Officer Decision
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 - complainants non-attendance at callover, 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 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 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 hearing took place in Ennis on 15th January 2006.
2.0 Preliminary Issue
This case is one of a number of complaints referred to the Equality Tribunal during the period 2004-2006, on behalf of a large number of complainants, against the same respondent alleging discrimination in relation to housing and related matters. It was decided to sort the cases by family groups so that each complainant family would have a separate hearing before the Equality Officer. A number of other issues concerning all the cases arose and were dealt with at a procedural hearing on 26th May 2006. (For the background information see Jim Mongans & others v Clare County Council, DEC-S2007-012)
3.0 Summary of Events
3.1 The complainants' representative was notified orally by me on 20th October 2006 that I was arranging a callover of all the cases referred against the respondents on 4th December 2006, including the cases of the complainants herein. A written confirmation of the date issued to the representative on 3rd November 2006. The representative applied for an adjournment of the matters on the grounds that she was out of the country on holidays and would be unable to notify the complainants of the callover. The adjournment was granted and the parties were notified that the callover would take place on 15th January 2007.
3.2 A written notification issued to the representatives confirming the date and requesting that the complainants attend the callover on 15th January 2007. A notification of the hearing was also sent to the complainants' address. The complainants and their representative were notified that if the complainants did not attend the Equality Officer may decide, in the absence of a valid explanation for non-attendance, that they had not established a prima facie case of discrimination. The complainants' representative made two further applications to the Tribunal, on the 7th and 11th January 2007, for an adjournment of the cases listed including this case. These requests were refused on the basis that no exceptional circumstances existed which would warrant the granting of an adjournment.
3.3 It should be noted that during the course of other hearings of cases against Clare County Council listed for the week of 16th to 20th October 2006, the complainants' representative submitted a letter on behalf of all of the complainant family groups, including the complainants in this case, requesting that I withdraw from hearing the cases. I informed her that I would not be acceding to the request. At the commencement of the callover on 15th January 2007 the complainants' representative made a further application for an adjournment stating that she wished to judicially review my decisions in previous cases. (For the background information see cases Michael Mongans & others v Clare County Council DEC-S2006-084, Patrick Mongans & others v Clare County Council, DEC-S2006-085) I refused the application referring the representative to letters dated 10th and 12th January 2007 and to my earlier decisions cited above setting out the reasons why adjournments would not be granted.
3.4 The complainants did not attend the callover on the 15th January nor did they attend on any other day during the week of 15th to 19th January 2007 to explain their absence. The complainants' representative submitted that she had informed Mr. O'Donoghue that their application for an adjournment was refused. She stated that Mr. O'Donoghue informed her that he was not well enough to attend the Tribunal. The representative also said that she could not contact Mrs. O'Donoghue.
4 Conclusions of the Equality Officer
4.1 I am satisfied that the complainants were on notice of the callover arranged for the15th January 2007. I note that the complainants' representative has provided two different reasons for their non attendance. In the application to the Tribunal for an adjournment the representative stated that the complainants had some personal difficulties and the requested that the hearing take place at another venue convenient to them. At the hearing the representative stated that one of the complainants was not fit to attend and she could not contact the other complainant.
4.2 It should be noted that these cases were already adjourned from the week commencing 4th December 2006 to give the complainants' representative an opportunity to inform all the complainants about the dates of the callover and hearings. Following the adjournment I requested the complainants' representative to provide the addresses and telephone contact details of all of the complainants involved in these cases. I then sent a notification of the hearing to the complainants' address.
4.3 I am satisfied that the complainants had notification of the callover arranged for the week commencing 15th January 2007. I am also satisfied that they 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. It should be noted that Mr. O'Donoghue did not provide any proof to the Tribunal to satisfy me that he was unfit to attend on 15th January. I am satisfied that Mrs. O'Donoghue was aware of the callover as she had instructed her representative to seek an adjournment. Therefore the onus was on her to keep in contact with her representative to find out the result of the application. No party should assume that an adjournment will be automatically granted on request.
As there was no appearance by the complainants and as they have failed to provide a satisfactory reason for their non-attendance, I find that they have failed to establish a prima facie case of discriminatory treatment and accordingly, I dismiss their complaints.
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 the cases referred by Tommy and Rita O'Donoghue and their children Michael, Roger & Mary (ES/2004/277-281, ES/2005/496-500, ES/2005/881- 885, ES/2006/118, ES/2006/172 (formerly ES/2006/065), ES/2006/037, ES/2006/0175 (formerly ES/2006/085), ES/2006/0176 (formerly ES2006/006) to the Equality Tribunal against Clare County Council.
8th March 2007