The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2013-171
(Represented by Richard Grogan & Associates)
O’Leary International Ltd
(Represented by Peninsula Business Services Ireland Ltd)
File reference: EE/2011/414
Date of issue: 5 December 2013
HEADNOTES: Application for expenses
1.1 This dispute concerns a claim by Mr Regimantas Sarkus that he was discriminated against by O’Leary International Ltd on grounds of race contrary to section 6 (2) (h) of the Employment Equality Acts in relation to conditions of employment and dismissal.
1.2 Through his legal representative, the complainant referred a claim to the Director of the Equality Tribunal on 4 May 2011. On 6 June 2013, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Peter Healy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both parties. In accordance with Section 79 (1) of the Acts and as part of my investigation I proceeded to a hearing on 10 June 2013 and both parties attended on that date.
1.3 At the outset of the hearing the respondent sought to introduce a large volume of documentary evidence, relevant to the complaint, which had not previously been provided to the Tribunal or to the complainant. The complainant applied for an adjournment on the basis that they required time to examine this new submission, some of which required translation. I agreed to the adjournment as it was clear that the complainant could not be expected to respond satisfactorily to such a large volume of documentation without adequate time to prepare. I set a new date for the hearing of the complaint on 31 July 2013. Final submissions were received on 9 September 2013.
2. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
2.1 On 21 June 2013, the Tribunal notified both parties by registered and ordinary post that a hearing of the case would take place on the 31 July 2013 in the offices of Tribunal at Clonmel Street, Dublin. I sat to hear the case as notified. The respondent attended the hearing as scheduled. The complainant did not attend but the complainants’ legal advisor contacted the Tribunal by phone, shortly before the hearing was to commence, to explain that he had reported that morning to the wrong venue for the hearing and subsequently that he and his client would be unable to attend due to an unforeseen scheduling conflict with another legal process he was involved in.
Subsequently the respondent made an application for expenses under section 99A of the Employment Equality Acts on the basis that the Complainant had impeded the investigation of the Equality Officer.
3. Conclusions of the Equality Officer
3.1 I am satisfied that the complainant was on notice that a hearing in his case was scheduled for the 31st July 2013. I accept that the complainant made a genuine error in reporting to the wrong venue on that morning of the hearing as his representative has been in attendance at that venue on many occasions for Equality Tribunal hearings. While unacceptable, I accept that this instance was not an intentional effort to impede the work of the Tribunal.
3.2 The complainant was in attendance for the original hearing date. As the respondent was solely responsible for the necessity of a second hearing date I cannot find that the complainants’ actions, which I have accepted as not deliberately intended to impede the investigation, resulted in the expenses incurred by the respondent.
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.
I am not awarding expenses to the respondent as the complainant was in attendance for the original hearing date and it was the actions of the respondent that necessitated an adjournment and the expenses associated with the second hearing day.
5 December 2013