THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2009-113
Mr. Joseph Tsalabiendze
Lycatel Ireland Ltd
File Reference: EE/2008/197
Date of Issue: 9 December 2009
Headnotes: Employment Equality Acts, 1998 and 2004 -Employment Equality Acts, 1998 - 2008 - equal pay - race.
1.1 The complainant alleges that he performed "like work" in terms of section 7 of the Employment Equality Acts, 1998-2008 with a number of named comparators of a different race and/or nationality to him and he is therefore entitled to the same rate of remuneration as paid to those comparators in accordance with section 29 of thise Acts The complainant alleges that this was because of his race.
2.1 The complainant, who is of Congolese origin, worked for the respondent during the period November 2004 until September 2005. He alleged that the difference between his rate of pay and that of the named comparators was because of his race.
2.2 The complainant referred a claim to the Director of the Equality Tribunal under the Employment Equality Acts, 1998 -2007 on 26th March 2008. In accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Bernadette Treanor, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. The claim, which was linked to an earlier claim that was subsequently dismissed, was delegated to me on 3rd November 2008 and my investigation began on that date.
2.3 The preliminary hearing, intended to address such matters as would dictate how the case progressed such as 'like work' and 'grounds other than race', took place on 11th February 2009. At this hearing the respondent, having been granted a short adjournment to consider the matter and to call head office, agreed that like work existed and that there was a difference in the rates of pay, but contended this was because of reasons unconnected with the complainant's race and is therefore lawful in accordance with section 29(5) of the Acts.
2.4 There followed some correspondence in relation to reasons for the differences in pay. A final hearing of the matter was scheduled to take place on 8th September 2009 and both parties were informed by registered and ordinary mail. The registered letter to the complainant was returned to the Tribunal. However, a relative of the complainant responded to the letter sent by ordinary mail. She indicated that the complainant was out of the country and asked if an adjournment could be granted. This was copied to the respondent by registered mail, indicating again that the hearing was to take place on 8th September 2009.
2.5 In line with Tribunal procedures the complainant's relative was asked to present evidence of the complainant's travel arrangements and to provide information in relation to the dates of travel and the duration of the complainant's stay abroad. No response was received and therefore no adjournment was considered or granted.
2.6 On 8th September 2009, neither the complainant nor the respondent appeared for the hearing. It should be noted that the registered letters to the respondent were delivered.
3 Conclusions of the Equality Officer
3.1 The second day of hearing was intended to address the 'grounds other than race' arguments submitted by the respondent and the complainant's arguments in response. In a recent Employment Appeals Tribunal hearing a similar situation arose where a complainant failed to attend a second day of hearing. The case involved three complainants Babkiewicz, Kozlowski and Wiezowski against Multiroofing Systems Ltd., UD1111/08-UD1113/08. The Determination states:
"In respect of the case of the second-named claimant (AK), the claim under the Unfair Dismissals Acts, 1977 to 2007, fails. The legal requirements place an onus on a claimant to prosecute his case and to be present for the hearing. The claimant failed to attend the second day of the hearing and failed to advise the Tribunal that he would not be in attendance. The Tribunal was not satisfied that he had made any or any sufficient effort to notify the Tribunal of his inability to attend the hearing of the 15 April 2009 and he made not effort to seek a postponement of that hearing the date of which he had been aware of for some considerable time prior to the date set."
3.2 In the instant case the Tribunal's letter sent by registered post and setting a date for a second day of hearing was returned. The same letter sent by ordinary post was replied to by a member of the complainant's family. There was no response to the Tribunal's request for further information and therefore an adjournment was neither considered nor granted. The complainant failed to attend the second day of the hearing. In the instant case, the respondent also failed to attend.
3.3 Based on these events I find that the complainant's claim fails for want of prosecution.
4 Decision DEC-E2009-113
4.1 Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts. I find that the complainant's claim fails for want of prosecution.
9 December 2009