DECISION NO: DEC-E/2012/081
MIHAI AND POPESCU
CENTRE OPERATORS LTD T/A TOTAL FITNESS SANDYFORD
File No: EE/2009/880 & 881
Date of issue: 19 June, 2012
Headnotes: Employment Equality Acts 1998-2008 - sections 6&8 -race- discriminatory dismissal - prima facie case - non attendance at Hearing.
1.1 The complainants, (i) Codrut Marius Mihai and (ii) Madelina Popescu, are married to each other and both are Romanian nationals. On 2 December, 2009 they each referred complaints to the Equality Tribunal under the Employment Equality Acts, 1998-2008 alleging that they had both been dismissed by the respondent in circumstances amounting to discrimination on grounds of race in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 8 of those Acts.
1.2 On 9 December, 2009 the Tribunal acknowledged receipt of the complaints and commenced the standard processing of them. As part of that process the Tribunal wrote to the complainants on 15 April, 2010, at the postal address provided on the original complaint forms, seeking submissions providing further details of their complaints. These submissions were furnished to the Tribunal on 26 May, 2010 and were copied to the respondent's representative for information and response. These responding submissions were received by the Tribunal on 19 August, 2010 and were copied to the complainants at the postal address previously used.
1.3 On 25 April, 2012 the Tribunal wrote to the parties, via ordinary and registered post, advising that the Hearing would take place on 15 June, 2012 at a venue in Dublin commencing at 10:30am. The letters addressed to the complainants were returned to the Tribunal marked "gone away". The Tribunal subsequently furnished these Hearing details to the complainants at the e-mail addresses furnished on the original complaint forms. On 7 June, 2012 the firm of solicitors on record for the respondent advised the Tribunal that it was no longer instructed in the matter, that the respondent had gone into liquidation and that it (the firm of solicitors) had copied the correspondence received from the Tribunal in the matter to the company handling the financial affairs of the respondent. That firm subsequently confirmed to the Tribunal that it was on notice of the Hearing arrangements and advised that it would not be attending the Hearing.
1.4 In accordance with his powers under the Acts the Director delegated the complaints to the undersigned - Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation commenced on 14 June, 2012 in respect of the first named complainant and 29 May, 2012 in respect of the second named complainant - the dates the complaints were delegated to me. As I was satisfied that the Tribunal had made all reasonable efforts to notify the parties of the Hearing arrangements I decided to proceed with the Hearing as scheduled. Neither party attended at the venue indicated at the time advised.
2. DECISION OF THE EQUALITY OFFICER.
Section 79(1) of the Employment Equality Acts, 1998-2011 requires me, as part of my investigation, to hold a Hearing. The respondent had gone into voluntary liquidation in advance of the Hearing and the Tribunal was on notice of this fact and also that the respondent would neither attend nor be represented at the Hearing. The Tribunal made every reasonable effort to notify the complainants of the Hearing arrangements by writing to them by registered and ordinary mail, at the postal details provided on the original complaint forms, to and from which correspondence had previously issued and also by e-mailing the Hearing arrangements to them at the e-mail addresses also furnished on those forms. All four letter issued to the complainants were returned to the Tribunal marked "gone away". No response was received by the Tribunal to the e-mails issued by it to the complainants in the matter. In the circumstances I find that the complainants' failure to attend the Hearing is unreasonable and that any obligation under section 79(1) has ceased. As no evidence was presented by the complainants in support of their complaints I conclude the investigation and find against each of them.
19 June, 2012