Mr. Michael Mongans & Mrs. Kathleen Mongans and their children
Chantelle, Nicole, Mikayla & Christopher Mongans
(represented by Ms. Heather Rosen)
V
Clare County Council
(represented by Michael Houlihan & Partners Solicitors)
Key words
Equal Status Acts, 2000 -2004 - Discrimination, section 3(1) - Traveller
community, Section 3(2)(i) - providing accommodation and housing services Section 6(1)(c) - harassment, section 11 - issues in relation to lodgment of complaints -named respondent, vicarious liability, Section 42 - Bias, application to have case heard by different Equality Officer - complainants non-attendance at hearing, adjournment requests - failure to establish a prima facie case.
Delegation under Equal Status Acts, 2000-2004
The complainants referred a number of claims to the Director of the Equality Tribunal under the Equal Status Acts, 2000-2004 between 2004 and 2006. In accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2004 the Director delegated the case to me, Marian Duffy, 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 2000.
1. Dispute
1.1 The dispute concerns claims by the above named complainants that they were discriminated against by four named officials of Clare County Council on the Traveller community ground, in that they allege they have not been provided with housing / accommodation and that their temporary accommodation needs have not been met by Clare County Council. They also allege that that they were harassed by the Council when they were moved from sites/open spaces where they had parked their caravans. The complainants allege that the respondent discriminated against them in terms of Sections 3(1)(a), and 3(2)(i) of the Equal Status Acts, 2000-2004 contrary to Section 6(1) (c). They also allege that they were harassed contrary to Section 11 of the Act.
2.0 Preliminary Issues
2.1 The complainants lodged a number of referral forms with the Equality Tribunal during the period 2004 to 2006 relating to issues connected with housing/accommodation and alleged harassment. An application was made to the Equality Officer by the respondent's representative at hearings from 24th to 26th of May 2006 to have all the complaints lodged by the same complainants relating to similar issues heard together. The complainants' representative requested separate hearing for each separate complaint lodged relating to housing / accommodation and related matters.
The Equality Officer ruled that the later complaint forms lodged by the complainants related to ongoing issues and therefore the original complaint forms lodged with the Tribunal encompassed all the issues and that all matters would be dealt with at the one hearing. The Equality Officer informed the parties of this decision.
2.2 The complainants referred the cases against four named officials of Clare County Council and the County Council itself. At the commencement of the hearing an application was made by the solicitor for Clare County Council to have the named respondent changed to Clare County Council.
The Equality Officer considered the provisions of section 42(1) of the Equal Status Acts regarding vicarious liability which provides:
"Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person's employer, whether or not it was done with the employer's knowledge or approval."
The named officials are all employees of Clare County Council and acted in the course of their employment with the Council. In considering this application I have taken account of a Judgment in the High Court in the case of Faughnan v. Maguire concerning an application to have a named defendant removed from medical negligence proceedings. O' Sullivan J stated:
"From the point of view of the Plaintiff, if it does transpire that a court can be satisfied that Dr. O'Brien is in some way legally responsible for his injury, prima facie (and I accept that this point has not been conceded by the Plaintiff) the first Defendant as employer of Dr. O'Brien, would be accountable."
O'Sullivan J went on to hold that:
"In my opinion therefore, the balance of justice favours the discontinuance of the action against Dr. O'Brien..."
The reasoning in this judgment is relevant to the application in this case. If the complainants' application for redress is successful Clare County Council will be "accountable". The Equality Officer therefore, considered it appropriate that Clare County Council should be the only named respondent and informed the parties that this is how the cases would proceed.
3 Summary of the Events
3.1 The complainant' representative, Ms. Heather Rosen, has referred complaints against the respondent, on behalf of the complainants and on behalf of a number of other people, to the Equality Tribunal. Cases including that of the complainants were scheduled for hearing by me, the Equality Officer, during the week commencing 16th October 2006. The above named complainants' case was listed for hearing on 20th October 2006. The representatives were notified verbally, on Friday 22nd September, at the conclusion of the days proceedings in other cases, that a number of cases including the complainants' case would be listed for hearing during the week commencing 16th October 2006. A written notice to this effect was issued to the representative on the 11th October 2006. The complainants did not attend for hearing on the date set.
3.2 The representative for the complainants confirmed on the 19th October 2006, the date the hearing was to take place that the complainants were aware that the hearing was scheduled, but that they would not be attending. Ms. Rosen handed in a letter stating that the particular complainants disagreed with the rulings of the Equality Officer made in cases other than their own. As a result of these rulings in the other cases they wished to have a different Equality Officer in their own case. In another letter signed by the complainants they stated that the request for a different Equality Officer "arises because the grave dismay at certain of the decisions that have been made and the apparent basis for those decisions - the unreasonableness and the implications- leave us no choice but to ask for this change to be made." This was the only reason given for the request for a different Equality Officer to hear the case.
4.0 Reasoning of the Equality Officer
4.1 The application to have the cases heard by a different Equality Officer arose from a decision made by me on 17th October 2006 to dismiss the cases of Mr. Michael Mongans & others v Clare County Council. (See Decision No DEC-S2006-084) Following my decision to dismiss that case Ms. Rosen, the complainants' representative in the case, strongly objected to the decision and made a number of unsubstantiated allegations against the Equality Tribunal and also stated that she no longer trusted the Tribunal. I adjourned the hearing for a short time to allow her to consider whether she wished to withdraw the remarks. I also warned her that I may have to consider withdrawing from continuing hearing the cases if she did not withdraw her allegations which appeared to be suggesting bias on the part of the Equality Officer. On resumption of the hearing Ms. Rosen refused to withdraw the remarks saying that she was asking me to withdraw from hearing all the cases that she had lodged on behalf of complainants in respect of the above mentioned issues, including the cases listed for hearing for the remainder of the week. (Ms. Rosen was the representative in 4 separate cases listed for the remainder of the week.) I informed Ms. Rosen that the hearings would proceed as scheduled including those scheduled for the following days and that she should consult the complainants and inform that they should be present for the hearings set for the following days. (18th to 20th October 2006)
4.2 The complainants herein did not attend the hearing scheduled for the 19th October 2006. Ms. Rosen informed the Tribunal that they would not be attending for the reasons stated in the two letters mentioned above and she asked that the cases be heard by a different Equality Officer. I informed the parties that I was not withdrawing from hearing the listed cases. It should be noted that complainants in this case made no allegations of bias against the Equality Officer in their particular case and they were not in attendance at the hearing on 17th October where the allegations were made by Ms. Rosen and when she first requested that I withdraw from hearing any of the cases referred against the respondent. The only reason advanced by the complainants for requesting my withdrawal from their cases was in writing and the reasons given were their "grave dismay at certain decisions". Their request was grounded solely on the basis of a decision that I have made in another case which the complainants in this case have not been party to. No further elaboration was made by the complainants as to how the previous decisions constituted a bias on my behalf apart from and in so far as the complainants' representative was the same representative in both cases.
4.3 In making my decision not to accede to the request I considered the relevant case law in the area of bias and applied the test in relation to bias set down in the High Court in the most recent case, D(D)v District Judge Conal Gibbons and notice party the Health Service Executive. In that case it was held that the applicant must show actual or objective bias before a Judge would be required to recuse himself or herself from a case. The High Court upheld the decision of the District Court Judge Conal Gibbons not to discharge himself from hearing an application from the notice party, the Health Service Executive, to take a child into care. The applicant's request was based on the grounds that the Judge in earlier proceedings had made orders in relation to the applicant's access to her child. He applied the objective test i.e. whether a reasonable person in the position of the applicant would consider the Judge biased. Quirke J. stated:
"The principles to be applied where an application is made to a judge to disqualify himself/herself on grounds of objective bias have been identified by Lord Hewart C.J. in R. v. Sussex Justices, ex parte McCarthy [1924] 1 K.B. 256 (at p. 259) in the following terms:
"..A long line of cases shows that it is not merely of some important but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done. The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not promptly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice."
The Supreme Court in the case of Bula Limited v. Tara Mines Limited (No. 6) [2000] 4 I.R. 412 set out the principles of law in relation to objective bias. Denham J stated:
... it is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicants would not have a fair hearing from an impartial judge on the issues. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any party. It is an objective test - it invokes the apprehension of the reasonable person."
Also in that case Denham J. in dealing with an application to set aside a judgment on the grounds that two Judges should have disqualified themselves from a previous judgment in the case stated:
"A judge has a duty to sit and hear a case. However, in certain circumstances it is appropriate that he or she disqualify himself or herself from a particular case. The test is not whether that judge believes he or she would be impartial. Nor is it whether the judge or judges on a motion to set aside such a judgment believes the judge was or would be impartial. Nor is it whether the parties consider the judge impartial. The test is objective.
4.4 Therefore the test that should be applied to the request that I withdraw from the hearing is an objective test. It is a matter for the complainants to produce evidence in support of their application. I am not satisfied that they have met this test. In this case the reason advanced by the complainants for asking that the cases be heard by another Equality Officer was that I had made a decision to dismiss the case of Mongans v Clare County Council (Dec No. DEC-S2006-0084). The only connection between the cases is that the same person represented the complainants and the case was taken against the same respondent. It is not reasonable for them to allege bias in such circumstances. This is a completely new case and was not linked in any way to the decision made in the Mongans case. Even though the complaints in all cases were against the same respondent the investigation and hearing are not linked. I had already explained the procedures to the respective representatives at a specially convened procedural hearing in May 2006 and informed them that each case/family group would have a separate investigation and hearing. . In considering this point I have taken into account a decision by an Equality Officer in the case of McCarthy & Others V Davitts Nite Club . The respondent's legal representative in the McCarthy case submitted that the Equality Officer should not proceed with the hearing of a case as she as she had not issued her decision in another case taken against the same respondent in which the hearing had already taken place. It was submitted that the respondent had a constitutional right to fair procedures and if the hearing went ahead before the other decision was issued that right would be denied. The Equality Officer stated:
"I am dealing with two different civil cases brought by different complainants against the same respondent in respect of two entirely different incidents. The facts of the cases are not the same. Whether or not I find discrimination in the earlier case would have absolutely no impact on whether I find discrimination in this case. I am satisfied that there is no threat to the respondent's Constitutional right to fair procedures".
This reasoning is applicable to this case in that the decision I have made in one case (DEC -S2006-084) has no impact on the decision in this case and the complainants have not been denied their Constitutional right to fair procedures.
4.5 I am mindful that this Tribunal does not have jurisdiction to determine a class action except in specific circumstances defined under statute. (see section 23 of the Equal Status Acts 2000-2004) If I were to deal with the cases lodged by the representative on behalf of a substantial number of complainants in the manner suggested by her I would be going outside my statutory duty. Therefore I cannot and will not deal with these cases, including the case herein, as a class action.
4.6 The Equality Officer can only make a decision on the facts and evidence presented and cannot have prejudged a case or be influenced by decisions he or she made in another case on a different set of facts. I informed the parties that I would continue to hear the cases as listed and that I would issue a written decision in accordance with Section 29 of the Equal Status Acts 2000-2004. The parties were also informed that decisions of the Equality Officer may be appealed to the Circuit Court.
4.7 I also have considered some English cases on the matter although not binding in this jurisdiction they are of a persuasive authority. I considered the case of Carla Bennett and London Borough of Southwark . Here the Court of Appeal upheld a decision of the Employment Appeals Tribunal (in England) that an Employment Tribunal should not have recused itself when it was accused of racial bias by a lay representative of the applicant. Lord Justice Ward noted as follows:
"In the Employment Appeal Tribunal's view:-
"...it is the duty of any judicial body to approach its task with impartiality and equanimity, not to abdicate its responsibility. Where authority is challenged it must deal with that challenge itself"
Ward LJ further stated:-
"Judicial duty is to be performed both without fear as well as without favour. The Tribunal did not act fearlessly when they capitulated to the inexcusable petulance and insolence displayed by Mr. Harry. (the lay representative) They were wrong not to listen to Mr. Harry's diatribe with phlegmatic fortitude, retiring, if necessary, to compose themselves and to cool the advocate's ardour, and then calmly continuing. Instead they allowed invective to infect them with prejudice. In getting on their high horse they fell off the judgment seat. I do not deny that it is thoroughly unpleasant and uncomfortable to be accused of bias. It is, sadly, not an uncommon charge. It is, on the contrary, a worryingly increasing challenge to the court's authority at all levels. Judges, member of Tribunals, magistrates, all have to rise above such a challenge because all must be confident in their ability to judge impartially."
4.8 I consider that the above is particularly persuasive in its reasoning and supportive of my decision not to withdraw from the case herein. Ms. Rosen indicated on behalf of the complainants that they were unhappy with the decision I had made in another case. This was the only reason given for making unsubstantiated allegations against me and requesting me to relinquish the cases. I am satisfied, having given Ms. Rosen an opportunity to consider her position and an opportunity to withdraw the remarks, that I was in a position to continue the cases as scheduled. Likewise I was satisfied that there were no other valid reasons advanced on behalf of the complainants which made my position to act as an Equality Officer in these cases untenable.
Conclusions of Equality Officer
4.9 On 20th October 2006 the above named complainants did not attend the scheduled hearing and as already stated above Ms. Rosen submitted a letter to the Tribunal from the complainants requesting that their case be transferred to a different Equality Officer.
I notified the complainants' representative on the 17th and 18th October 2006, at the conclusion of other hearings where she was representing, that I required the complainants present for the hearings scheduled on the 20th October 2006. I was satisfied that the complainants were properly notified that the hearing would take place as notified. Therefore, having failed to attend the hearing, I concluded that the complainants had not established a prima facie case of discrimination. I informed the parties present at the hearing that I would issue a written decision dismissing the cases.
5.0 Decision
5.1 On the basis of the foregoing, I find that the complainants have not established a prima facie case of discrimination and accordingly their cases cannot succeed. I therefore dismiss this case. (See list attached at appendix 1)
_____________________
Marian Duffy
Equality Officer
13th December 2006
Appendix 1
File Ref Date Referred
ES/2004/379-381 14/01/2004
ES/2004/407-410 14/01/2004
ES/2005/766-769 14/11/2005
ES/2006/085 01/08/2006 cases of Michael, Kathleen, Chantelle, Nicole, Mikayla & Christopher Mongans