Equal Status Acts 2000 to 2004
EQUALITY OFFICER’S DECISIONS NO: DEC-S2008-043
Vladimir Kosjakov, Larissa Feklina and Aleksandra Kosjakova (a minor)
V
Health Service Executive
(Former North Eastern Health Board)
KEYWORDS
Equal Status Acts 2000 – 2004, Discrimination, section 3(1)(a), 3(1)(b) – Race ground, section 3(2)(h) - Disposal of goods and provision of services, section 5(1) – Harassment (other than sexual), section 11(1)(a) – Discontinuation of supplementary rent allowance – harassment when availing a service
1. Delegation under the Equal Status Acts 2000 to 2004
1.1. Mr Kosjakov, Ms. Feklina and Ms. Kosjakova referred a claim on 23 August 2004 to the Director of the Equality Tribunal under the Equal Status Acts 2000 to 2004. In accordance with her powers under section 75 of the Employment Equality Act, 1998, the Director then delegated the case to me, Tara Coogan, 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 on 11 April 2008. A hearing was held on 24 June 2008.
2. Dispute
2.1. The dispute concerns a complaint by Mr. Kosjakov, Ms. Feklina and their daughter Ms Kosjakova (a minor) that they were treated contrary to section 5(1) and 11(1)(a) on a number of stated dates on the grounds of race.
3.Hearing
A hearing into the above complaints was scheduled for 24 June 2008 and the parties were notified of this on 21 April 2008. Notification was sent by registered and standard post. On the morning of the hearing, the respondent and two witnesses were present at the scheduled time at 10.30. I deferred the commencement of the hearing for 40 minutes in order to allow for the complainants to make contact with the Tribunal. No contact was made. At 11.10 am I convened the hearing and explained to the respondent that as the complainants had failed to attend and establish in person the facts supporting their claim of discrimination and harassment, the respondents had no case to answer. I informed the respondent that a decision in accordance with section 25 of the Acts would issue shortly and that there would be a 42 day appeal period in accordance with section 28 of the Acts.
I am satisfied that the complainants have been appropriately notified of the hearing at the address they have supplied with the Tribunal. It is the complainants’ responsibility to inform the Tribunal about any changes in their contact details.
4. Conclusions of the Equality Officer
Section 38A of the Acts sets the burden of proof in complaints of discrimination. The onus is with the complainants to establish the facts from which it may be presumed that prohibited conduct has occurred. Only when these facts have been established is it for the respondent to prove the contrary. The complainants failed to attend the hearing and thus have failed to shift the burden of proof.
5. Decision
The complainants have failed to establish a prima facie of discrimination in terms of sections 3(1)(a), 3(1)(b) and 11(1)(a) of the Equal Status Acts 2000 to 2004. Accordingly, I find in favour of the respondent
___________________
Tara Coogan
Equality Officer
July 2008