DEC-E2005-028 Full Case Report

Perkins AND Jack Nolan Motorcycles Ltd, Dublin

1. DISPUTE
   1. This dispute concerns a claim by Mr Carl Perkins that he was discriminated against by Jack Nolan Motorcycles Ltd on the ground of race, contrary to the provisions of the Employment Equality Act 1998. He also claimed he was victimised by the respondent.
   2. The complainant referred a claim to the Director of the Equality Tribunal on 27 November 2003 under the Employment Equality Act 1998. In accordance with her powers under section 75 of that Act, the Director then delegated the case on 25 June 2004 to Anne-Marie Lynch, 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. Submissions were sought from both parties and a joint hearing was arranged for 2 June 2005. Neither party attended the hearing.
      
2. OUTCOME
   1. A letter issued to the complainant on 2 June, advising that the matter would be struck out in accordance with the provisions of section 102 of the Act, unless he provided a valid reason for his non-attendance no later than 10 June. On 7 June the complainant telephoned the Equality Tribunal, leaving a message that he had confused the hearing date, believing it to be scheduled for 5 June. A member of staff at the Tribunal spoke to him by telephone on 8 June, and informed him that he would need to correspond in writing. No further communication has been received.
   2. The Tribunal's Guide to Procedures for Investigating and Mediating Complaints makes it clear that written material sent to the Tribunal is not a sufficient basis for establishing a case. In the interests of natural justice, the complainant must also appear to give his or her evidence, unless the facts are agreed. Failure of the complainant to appear may result in the respondent having no case to answer.
   3. In this instance, I cannot accept the complainant's telephone message to the effect that he understood the hearing to be arranged for 5 June. In the first place, it was a matter for the complainant to ensure that he made a correct note of the date. In the second place, 5 June was the Sunday of a bank holiday weekend and therefore an improbable day for a hearing. If the complainant had misread the letter, he should have clarified matters with the Tribunal.
   4. It should be noted that the same criteria may apply in circumstances where the complainant attends a hearing and the respondent does not. Written material sent to the Tribunal is not a sufficient basis to defend a case, unless the defence is agreed. Failure of the respondent to attend may result in the case being decided in favour of the complainant.
   5. In this case, I am satisfied that the complainant's failure to attend the hearing, without valid cause, means that the respondent has no case to answer.
      
3. DECISION
   1. Based on the foregoing, I find that Mr Perkins failed to establish a prima facie case of discrimination on the ground of race, contrary to the provisions of the Employment Equality Acts 1998 - 2004.