Mr. Omar Khatimy vs Aer Rianta
1. DISPUTE
1.1 The dispute concerns a claim by Mr. Omar Khatimy against Aer Rianta that he has been subjected to harassment on the grounds of sexual orientation and race in terms of Sections 6(1), 6(2)(d) and 6(2)(h) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act. The complainant also alleges that he was subjected to victimisation in terms of Section 74(2) of the 1998 Act.
1.2 The complainant referred his complaints of harassment and victimisation to the Director of Equality Investigations on 18th November, 2003 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the claim to Gerardine Coyle, Equality Officer on 22nd October, 2004 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Submissions were received from both parties and a joint hearing was arranged for 31st August, 2005. The complainant did not attend.
2. CONCLUSIONS OF THE EQUALITY OFFICER
2.1 On 8th July, 2005 I received a letter from the complainant dated 5th July, 2005 in which he notified me of a change of address and in which he asked for an update on the status of his case. I wrote to the complainant on 21st July, 2005 at the new address notified to me by letter from the complainant dated 5th July, 2005 and notified him of a joint hearing of this claim at 10.00a.m. on Wednesday, 31st August, 2005 and details of the venue. On the same day I wrote to the respondent and notified the time, date and venue for the hearing of this claim. I received no further communication from the complainant and attended at the hearing venue on the appointed day. There were six persons present on behalf of the respondent and the complainant did not attend. I contacted my office and asked that it contact the complainant by telephone (the complainant had provided his mobile telephone number on his referral form). The office was unable to get any answer from the complainant's mobile phone and accordingly the hearing could not proceed and the respondent left. The day following the scheduled hearing in this claim a person (unnamed) on behalf of the complainant rang me and left a message on my telephone. It was clear from what he said that, on this day, (1st September, 2005) the complainant knew that a hearing had been scheduled for the previous day. He asked that I ring the complainant. Then on 2nd September, 2005 I received a fax from the complainant in which he notified me of a further change of address. He asked to be given as much notice as possible of the hearing date so that he could make arrangements to attend. He also stated "The time that has past since this case came to your office is quite long and my hopes for it to come to a conclusion are reduced to despair, if not grim".
2.2 The Equality Tribunal's Guide to Procedures for Investigating and Mediating Complaints makes it clear that written material sent to the Equality 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.
2.3 In this instance I informed both parties in writing of the time, date and venue of the hearing of this claim. Parties were given more that one month's notice of the hearing date. I received no indication during that time from either party that they had a problem with this date. On the day itself the respondent was in attendance and prepared to answer the case being made. The complainant was not in attendance. I showed my letter notifying the complainant about the hearing to the Head of Human Resources from the respondent organisation. He informed me that it was his understanding (from one of the other persons present for the respondent) that the complainant was no longer at the address where I had sent the hearing notification. Irrespective of when the complainant moved address there is an onus on him to keep me informed of any change of address or change in circumstance which could impact on the investigation of this claim. It is clear that the complainant was aware of his obligation in this regard as he had already (by letter dated 5th July, 2005) informed me of a change of address. I am, therefore, satisfied that the complainant was notified of the hearing of this claim and the onus was on him to ensure that he received correspondence sent to his old address or inform me of his new address.
2.4 It should be noted that the same criteria apply in circumstances where the complainant attends a hearing and the respondent does not. Written material sent to the Equality Tribunal is not a sufficient basis to defend a case, unless the defence is agreed. Failure of the respondent to attend a hearing could result in the case being decided in the complainant's favour.
2.5 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
3.1 In view of the foregoing I find that Mr. Khatimy failed to establish a prima facie case of harassment and victimisation on the grounds of race and sexual orientation, contrary to the provisions of the Employment Equality Act, 1998.
______________________
Gerardine Coyle
Equality Officer
8th September, 2005