THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2008
Decision No. DEC-S2010- 008
Kamoru and Bukky Oladimeji
Fingal County Council
(represented by Claire Bruton, B.L.)
File Reference: ES/2006/0076
Date of Issue: 2 February 2010
Equal Status Acts 2000-2008 - Section 3(2)(h), Race ground - failure to attend hearing -no prima facie case - Section 37A - award of expenses
1. Delegation under the relevant legislation
1.1. On 14th July, 2006, the complainants 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 22nd 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 Dublin on Thursday, 14th January, 2010.
2.1. The dispute concerns a complaint by the complainants that they were 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 6 of the Equal Status Acts.
3. Attendance at hearing
3.1. This case was assigned to me on 22nd October, 2008. Submissions were sought from both parties. Upon receipt of those submissions, letters were issued to both parties to the complaint on Thursday, 23rd July, 2009, notifying them that the hearing of the complaint was scheduled to take place at 10:30 a.m. on 19th November, 2009 in the offices of the Equality Tribunal. The complainants made a request for an adjournment shortly before this hearing was to take place. A short adjournment was granted on the basis of the exceptional circumstances outlined in the complainants adjournment request. A further hearing was scheduled for 10:15 a.m. on Thursday, 14th January, 2010 and both parties were notified of this by registered post on 19th November, 2009.
3.2. When I proceeded to open the hearing at 10.20 a.m. on Thursday, 14th January, 2010, the complainants were not in attendance and were not otherwise represented. The respondent was in attendance, along with a number of witnesses. I did not receive any communication from the complainants regarding their failure to attend the hearing. The Tribunal therefore made several unsuccessful attempts to make contact with the complainants by telephone to ascertain if there was an exceptional reason why they were delayed in attending the hearing. I also received written confirmation from An Post that the letter in question had been received by the complainants.
3.3. As I was therefore satisfied that the complainants had been served with valid notification of the hearing, I reconvened the hearing at 10.35 a.m. The respondent's representative then made a short submission. Following this, 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 10.40 a.m.
4. Issue of expenses
4.1. Section 37A of the Equal Status Act, 2000, as amended by the Equality Act, 2004, 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."
4.2. The respondent submitted that it had made provision to attend the initial hearing. However, the complainant sought an adjournment on medical grounds shortly before the initial hearing date. As a result, the respondent submitted that it incurred significant expense and inconvenience for a hearing that did not proceed. It submitted that it had also appeared for the second hearing and had brought three witnesses as well as its representatives. Again, it incurred significant expense and inconvenience and, it therefore submitted, that in all the circumstances of the present case, an award of expenses under Section 37A was warranted.
4.3. The adjournment of the initial hearing was granted to the complainant on an exceptional basis and the hearing was rescheduled swiftly in order to minimise any delay in the hearing of the matter arising from the adjournment. I am satisfied that the complainant was well aware that the respondent had incurred significant expense and inconvenience as a result of the late adjournment of the matter. Significant inconvenience and unplanned use of resources was also incurred by the Tribunal as a result. However, given that the adjournment was granted due to exceptional circumstances, in line with the Tribunal's procedures, such costs are accepted as being part of the workings of the Tribunal as they are an inevitable consequence of an essential procedure that is in place to ensure fairness to all parties.
4.4. However, in this case, the complainants then failed to attend the rescheduled hearing which had been previously adjourned at their request. Not only that, but they made no effort to communicate with the Tribunal in relation to this failure to attend and have not provided any valid explanation for it with the result that further significant expense and inconvenience have been caused to both the respondent and the Tribunal through the employment of resources which have been effectively wasted. I also note that, if there was a valid explanation for them being unable to attend and so needed to avail of the procedures of the Tribunal that are in operation in relation to hearings and adjournments of same, the complainants are fully aware of what those procedures are.
4.5. I am therefore satisfied that the complainants have engaged in a wilful abuse of the opportunity provided to them to present their case and their conduct in relation to the hearing of the matter has been exceptional in the extent to which their behaviour and actions obstructed and impeded my investigation. I therefore consider that, in all the circumstances of the present case and in light of the exceptional conduct of the complainants already described, an award of expenses to the respondent is warranted.
4.6. Given the behaviour of the complainants in relation to this investigation, then, I am cognisant of the fact that there has been a significant cost to the public, in terms of the resources and expenses incurred by the Tribunal throughout the processing of this particular complaint, which have been effectively wasted. However, I cannot award expenses in relation to those. I also note that the respondent appeared with its legal representatives and also brought a number of witnesses to the hearing, thereby incurring further significant legal and other costs and expenses in relation to the matter on top of those incurred in relation to the adjourned hearing. While I cannot make an award in respect of expenses in connection with representatives, I can in relation to those incurred by witnesses. The respondent has submitted receipts in relation to the travelling expenses incurred by these witnesses. I can also make an award in relation to other expenses which could include time spent in collating the material for the case, salaries in respect of the time the witnesses concerned spent at the hearing, meals, telephone calls, photocopying and other expenses in connection with the investigation. Taking into account the apparent limited means of the complainants, I am satisfied that an award of €150 would be appropriate in the circumstances.
5.1. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
5.2. 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.
5.3. In accordance with Section 37A of the Equal Status Acts, I order the complainants to pay to the respondent a total sum of €150 (one hundred and fifty euro) expenses.
2 February 2010