THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2008
Decision No. DEC-S2009- 053
(represented by Augustus Cullen Law)
File Reference: ES/2007/0014
Date of Issue: 14 August 2009
Equal Status Acts 2000-2004 - Section 3(2)(i), Race ground – failure to attend hearing –no prima facie case
1. Delegation under the relevant legislation
1.1. On 30th January, 2007, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. In accordance with her powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the case to me, Gary O’Doherty, 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 Acts. This delegation took place on 17th October, 2008, on which day I commenced my investigation.
1.2. As required by Section 25(1) of the Equal Status Acts, 2000 to 2008, and as part of my investigation, I held an oral hearing of the complaint in Wexford on Tuesday, 21st July, 2009.
2.1. The dispute concerns a complaint by the complainant that she was discriminated against by the respondent on the Race ground contrary to the Equal Status Acts in terms of Sections 3(1)(a) and Section 3(2)(h) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts.
3. Attendance at hearing
3.1. This case was assigned to me on 17th October, 2008. Submissions were sought from both parties. Upon receipt of those submissions, letters were issued to both parties to the complaint on 19th May, 2009, notifying them that the hearing of the complaint was scheduled to take place at 10:30 a.m. in Wexford on 21st July, 2009. In the case of the complainant, this notice was sent to the solicitor that was nominated to act on her behalf. The notice was sent via registered letter on 19th May 2009 and I obtained confirmation from An Post that it was delivered the following day. I am satisfied, therefore, that valid notification of the hearing was made to the complainant.
3.2. When I opened the hearing at 10.30 a.m., the complainant was not in attendance and was not otherwise represented. The respondent was in attendance, along with a witness. I adjourned the hearing for a brief period and made contact with the Equality Tribunal Offices by telephone to check if any communication had been received from the complainant or her representative regarding her failure to attend the hearing. It was confirmed to me that no such communication had been received.
3.3. The Tribunal also made contact with the complainant’s representative to ascertain if it had been delayed in attending the hearing. The complainant's representative did not give any indication at that time that it intended to be present at the hearing. The Tribunal explained that, in those circumstances, the hearing would proceed as scheduled and the Equality Officer would issue his decision in the case in accordance with the relevant provisions of the Acts.
3.4. I therefore reconvened the hearing at 10.55 a.m. I outlined that, as the complainant failed to attend the hearing in person, that I was bringing the hearing to a close and a decision would issue shortly. I closed the hearing at 11.05 a.m.
4.1. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
4.2. As part of my investigation under Section 25 of the Act, I am obliged to hold a hearing. I find that the complainant’s failure to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 25(1) has ceased. As no evidence was given at the hearing in support of the allegation of discrimination, I conclude the investigation and find against the complainant.
14 August 2009