THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
(represented by David Perry, Personnel, Training and Employment Law Consultant)
(represented by Jennifer Cashman, Ronan Daly Jermyn Solicitors)
File reference: EE/2006/033
Date of issue: 10th December 2009
Keywords: Employment Equality Act, Discrimination, No prima facie case
1.1 This dispute concerns a complaint by Ms Sue Cobley against MacSweeney Brothers, Cork. The complainant alleges that at an advertisement placed by the respondent seeking a 'young person' in The Southern Star newspaper discriminated against her on the grounds of age in relation to access to employment to the Employment Equality Acts 1998 - 2008 [hereinafter referred to as 'the Act'] as she believed this advertisement prohibited her from applying for the position.
1.2 The complainant referred her complaint under the Act to the Director of the Equality Tribunal on 6th February 2006. In accordance with her powers under Section 75 of the Act, the Director delegated the case on 28th May 2008 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Act. This is the date I commenced my investigation. Submissions were received from both parties and I proceeded to hold a Hearing on 25th November 2009 as required by Section 79 (1) of the Act. Letters were sent by registered post on 26th August 2009 informing both parties of the date of the Hearing. On 28th August the complainant telephoned the Tribunal to enquire about the possibility of postponing the Hearing by an hour. No subsequent written request for same was submitted. Therefore, I am satisfied that the complainant was properly notified of the time and date of the Hearing. Neither the complainant nor her representative were in attendance at the Hearing on 25th November. The respondent and its representative did attend.
1.3 As the Hearing was in Co. Cork, I made contact with the Tribunal's Secretariat to check if any communication had been received from the complainant or representative regarding her failure to attend the Hearing. No such communication had been received.
1.4 Under Section 99A of the Act, I have the power to award travelling or other expenses reasonably incurred by the other party against any person who obstructs or impedes my investigation. However, I cannot award expenses in respect of the attendance of a representative. I find the failure of the complainant and her representative to attend the hearing or give any explanation for same obstructed and impeded my investigation as well as imposing an appreciable cost on the public purse. During the Hearing, I enquired whether any travelling or other expenses (except legal costs) had been incurred by the respondent in attending the Hearing. By letter of 26th November 2009, the respondent's representative informed me that the respondent would not be submitting expenses associated with the respondent's attendance. Therefore, I will not be awarding costs against the complainant.
In the light of the foregoing, and in accordance with Section 79(6) of the Act, I issue the following decision:
As part of my investigation under Section 79 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 79 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.