DEC-S2008-039 - Full Case Report

Equality Officer Decision

DEC-S2008-039

John & Angela Mongans and Children

(represented by Heather Rosen)

V

Clare County Council

(Represented by Michael Houlihan & Partners Solicitors)

Delegation under Equal Status Acts, 2000-2004

The complainants referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000.  On 12^th October 2006, in accordance with her powers under section 75 of the Employment Equality Act, 1998-2004 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, 2000-2004 on which date my investigation commenced.  As required by Section 25(1) and as part of my investigation a hearing took place took place in Ennis on 28^th and 29^th May 2007.

1.         Dispute

1.1       The dispute concerns a claim by John & Angela Mongans and their children that they were discriminated against on the Traveller community and race ground.  The complainants allege that the respondent discriminated against them in terms of Sections 3(1)(a), and 3(2)(h) and (i)of the Equal Status Act, 2000-2004 contrary to Section 6(1)(c) of that Act.  They also allege that they were harassed contrary to section 11 of the Act. These complaints were lodged in the period 2004 to 2006 and were dealt with as one case surrounding the service provided by the respondent arising from the complainants’ application for housing and related accommodation needs and linked issues.

               I am addressing two matters at the outset of this decision, the first concerns the named respondent and the second is, whether the complaints have been referred within the statutory time limits.

2.            Named Respondent

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.  A matter arises in connection with the named respondents. The complainants in this case referred the complaints against Mr. Alex Fleming, County Manager, Mr. Tom Coughlan, Director of Services and Ms. Madeleine McCarthy, Administrative Officer Traveller Accommodation, who are all officials of Clare County Council, and the County Council itself.  An issue concerning the name of the respondent arose in other cases before the Tribunal in relation to similar issues.   Following a procedural hearing in May 2006, I determined in these cases that Clare County Council and not individual employees of the Council was the correct respondent applying the principles of vicarious liability (see decisions Michael Mongans & others v Clare County Council and Jim Mongans & others v Clare County Council [1]).

2.2       Following this decision issues arose in other cases concerning the named respondents and I decided in the interest of clarity to hear further evidence in relation to the named respondent and to decide the issue in respect of each family group of complainants.  The solicitor representing Clare County Council submitted that the matter was already determined and that Clare County Council had already accepted that it was vicariously liable for the acts of the named respondents.

2.3         Two of the officials named as respondent, Mr. Alec Fleming, County Manager, and Mr. Tom Coughlan, Director of Services and Town Manager for Ennis Town Council, have responsibility for matters concerning Ennis Town Council.  Ms. Madeleine McCarthy the other named respondent in this case is an official of Clare County Council only.  In the course of previous hearings, in connection with similar issues to these cases, matters have arisen in relation to Ennis Town Council and the solicitor for Clare County Council has submitted that these matters are not the responsibility of Clare County Council as Ennis Town Council is a separate legal entity and is not represented by Michael Houlihan and Partners Solicitors.  Therefore the question which arises in this case is: whether the case should proceed against the named officials, Mr. Alec Fleming and Mr. Tom Coughlan, who have responsibility in their capacity as officials of both Clare County Council and Ennis Town Council.  I have already made a decision in relation to their capacity as officials of Clare County Council (see paragraph 2.1 above)

2.4           It should be noted that the Equal Status Acts 2000-2004 provides that a complaint of discrimination may be referred against a named person or an organisation, public body or other entity. The Act provides:

“6.- (1) A person shall not discriminate in-……

(c) providing accommodation ….”

Section 2(1) defines the term person:

           ““person” , as that term is used in or in relation to any provision of this Act that prohibits that person from discriminating or from committing any other act or that requires a person to comply with a provision of this Act or regulations made under it, includes an organisation, public body or other entity;”

Section 42(1) of the Equal Status Acts 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.

2.5       The Act therefore provides that a complaint of discrimination may be referred against a person as happened in this case, where the complainants referred the case against named officials and Clare County Council itself.  If that person is found to have discriminated in the course of his/her employment (for example implementing a policy on behalf of the employer which may be found to be discriminatory) then it is that person’s employer who may be vicariously liable in accordance with Section 42(1) of the Equal Status Act 2000-2004. The definition of the term “person” also includes a public body. 

2.6       Mr. Alex Fleming is the County Manager of Clare County Council.   Section 144 of the Local Government 2001 Act provides: “A County Manager shall by virtue of his or her position be the manager … for every town council the administrative area of which is situated within the county concerned,”  Therefore Mr. Fleming is also the manager of Ennis Town Council.  As a manager he is entitled to delegate his functions under section 154 of that Act. Mr. Fleming told the Tribunal that he has delegated the function of Town Manager for Ennis to Mr. Tom Coughlan who also holds the position of Director of Services for Community and Enterprise with Clare County Council.  Mr. Coughlan said that he is employed by Clare County Council.  He has been delegated functions by the County Manager in relation to Ennis Town Council including that of Town Manager. From 1999 to 2005 he was Director of Housing with Clare County Council which included delegated responsibility for all functions in relation to housing in Ennis Town Council.

2.7       Mr. Fleming stated in his evidence to the Tribunal that Clare County Council is the supreme authority in the County and while Ennis Town Council and Kilrush Town Council are separate corporate entities they do not have the full basket of functions.  He said that overall responsibility for implementing the Traveller Accommodation Programme rests with Clare County Council.  He said that Mr. Tom Coughlan as Town Manager has a delegated responsibility from him in relation to housing and related services for Travellers.  The Traveller Accommodation Programme applies to Ennis Town Council but Clare County Council has overall responsibility in relation to all aspects of housing for Travellers including the general housing lists and Traveller specific accommodation.

2.8        In a submission provided to the Tribunal following the hearing, solicitors for Ennis Town Council stated that the Clare County Council should be the only named respondent as they have a statutory obligation under the Local Government Act, 2001 for housing Travellers. They submitted that there is a cross over of officials between Clare County Council and Ennis Town Council but both Councils are separate legal entities.  However for the purposes of certain administrative functions particularly in the area of Traveller accommodation Ennis Town Council is subject to the control of Clare County Council.

2.9        Having considered the submissions, I am satisfied that the named officials are all employees of Clare County Council and acted in the course of their employment and therefore Clare County Council is vicariously liable for their actions in accordance with section 42(1) of the Equal Status Acts.  I find therefore, that Clare County Council is the correct respondent and the case should proceed against the Council only and not the named individuals as I have already found in the case of Michael Mongans & others v Clare County Council (DEC-S2006-084).

2.10     The next question I have to consider is whether the officials with functions in Ennis Town Council should continue to be named respondents in respect of these functions. I am satisfied having regard to section 2(1) of the Act, which provides that the term “person” includes a public body, that by naming the officials, Mr. Alex Fleming and Mr. Tom Coughlan, who have respectively overall responsibility and delegated responsibility for Traveller housing/accommodation matters that the case has been properly referred against them in respect of those functions in Ennis Town Council.  Likewise I am satisfied that if Mr. Fleming or Mr. Coughlan were found to have discriminated against the complainants in carrying out their official functions then Ennis Town Council by virtue of section 42(1) would be vicariously liable for anything done by them in the course of their employment.  I find therefore that the named respondent, in respect of the fuctions carried out by Mr. Fleming and Mr. Coughlan in their capacity as officials of Ennis Town Council, is Ennis Town Council.  

2.11     The next matter to consider is whether Clare County Council is vicariously liable for Ennis Town Council in respect of the functions Ennis Town Council carries out in relation to Traveller housing/accommodation and related issues. I note in the submission and from the oral evidence of Mr. Fleming that Clare County Council has overall responsibility for implementing the Traveller Accommodation Programme including all aspects of the policies in relation to the housing of Travellers and their related needs. The complainants’ representative submitted that, as Clare County Council has responsibility for the programme and they are responsible for the actions of Ennis Town Council.  Two Traveller Accommodation Programmes, one in 2000 and the other in 2005, were adopted by Clare County Council in accordance with their statutory obligations under Section 7 of the Housing (Traveller Accommodation) Act 1998.  I note that both Programmes provide that: “Under the Housing (Traveller Accommodation) Act 1998 Clare County Council is the relevant housing authority for the entire County. In accordance with the requirements of the Act Ennis U.D.C. and Kilrush U.D.C. will be the implementing authorities for elements of the Traveller Accommodation Programme.”   In relation to the provision of housing for Travellers including the complainants herein, I am of the view that Clare County Council is the appropriate respondent in relation to the application of the Traveller Accommodation Programme.   Therefore the question is can Clare County Council be held to be vicariously liable for the actions of Ennis Town Council? 

2.12     It should be noted that Section 42(2) of the Equal Status Acts 2000-2004 provides:

           “Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act as done also by that other person.

            The definition of “person” under Section 2 is:

           ““person” , as that term is used in or in relation to any provision of this Act that prohibits that person from discriminating or from committing any other act or that requires a person to comply with a provision of this Act or regulations made under it, includes an organisation, public body or other entity;”

2.13     In considering the definition of agent I have considered Mr. McDermott’s text on Contract Law [2] at page 932 where he stated “agency is a term used to describe the relationship that arises where one person is appointed to act as the representative of another.  The person who so employs the agent is known as the principal.  If an agent is appointed and given the authority to contract on behalf of aprincipal then any transaction within the scope of such authority will bind the principal.”

               I have also noted Mr. Bennion’s text on Statutory Interpretation [3] where he states at page 983 forward“Unless the contrary intention appears, an enactment by implication imports the principle of the maxim qui facit per alium facit per se (who acts through another acts himself or herself).” 

2.14     Applying the interpretation of agent as set out above and considering Section 42(2) of the Act, it appears that for the purposes of implementing the Traveller Accommodation Programme and other aspects of housing/accommodation and related services in respect of Travellers that the relationship of Ennis Town Council to Clare County Council could be interpreted as a relationship of agency.  In the light of the evidence of Mr. Fleming to the Tribunal, the legal submission  and  the statutory framework under the 1998 Housing Act which set down that the County Council is the relevant housing authority for the entire County, I am satisfied that the relationship in certain matters can be that of an agency.  Likewise I am satisfied that section 42(2) of the Equal Status Act applies and if Ennis Town Council was found to have discriminated against the complainants in certain matters that Clare County Council may be vicariously liable in accordance with this section. 

2.15     It is not clear from the referral forms in this case whether the Clare County Council Officials named individually were also named in their capacity as officials of Ennis Town Council.  As the complainants did not attend the hearing it is not necessary for me to address the issue any further in this decision.

Decision on Named Respondent

2.16     I find therefore that the named respondent should be Clare County Council and the complaint herein should proceed against this respondent only and not against the named individuals.

3.         Statutory Time Limits

3.1        The respondent submitted that the complainants have not complied with the statutory time limit for notifying the respondent of the complaint. Section 21-(1) of the Equal Status Acts 2000-2004 provides that:

“A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director.

(2) Before seeking redress under this section the complainant-

(a) shall, within 2 months after the prohibited conduct is alleged to have occurred, or, where, more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of-

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,”

Section 21(6)(a) provides that “a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of the most recent occurrence.”

Section 21(11) provides: “For the purposes of this section prohibited conduct occurs _

(a) if the act constituting it extends over a period, at the end of the period,

(b) if it arises by virtue of a provision which operates over a period, throughout the period.”

3.2        The complainants sent several notifications to the respondent in accordance with section 21(1) of the Acts during the period 2004 to 2006.  They alleged that the discriminatory treatment and harassment in relation to the provision of housing/accommodation and related services was ongoing.  They also complained about the implementation of the Traveller Accommodation Programme.

3.3              I am satisfied from the documentation submitted on behalf of the complainants that they were seeking housing/ accommodation and related services from the respondent over a period of time. I note that two Traveller Accommodation Programmes, one in 2000 and the other in 2005, were adopted by the respondents in accordance with their statutory obligations under Section 7 of The Housing (Traveller Accommodation) Act 1998, and the complainant applied under these Programmes for housing and accommodation. The complaints relate to issues arising from these applications. I am satisfied that the alleged prohibited conduct has extended over a period of time and was ongoing when the notifications were served on the respondent. 

3.4              I also note that the Traveller Accommodation Programmes to which the complainants refer in their notification has been operating over a 4 year period starting in 2000 and was therefore in operation during the relevant periods when the complainants served their notifications on the respondent and referred their complaints to the Tribunal.  The Act clearly provides that where the alleged prohibited conduct extends over a period of time that the 2 month time limit for serving the notification in accordance with section 21(1) runs from the end of that period.  In these cases at the time the notifications were served on the respondent the complainants were seeking and were continuing to seek the services of the respondent in relation to housing/accommodation and related issues, matters which were the basis of their complaints about discrimination. 

           Decision

3.5              For the above reasons and having regard to the provisions of sections 21(1) and  21(11) of the Act, I find that the notifications served under section 21(1) and the referrals of the complaints to the Tribunal comply with the statutory time limits set out in the Equal Status Acts, 2000-2004.

4          Summary of the Case of John and Angela Mongans and children

4.1       This case is one of a number of complaints referred to the Equality Tribunal during the period 2004-2006, on behalf of a large number of complainants, against the same respondent (Clare County Council) alleging discrimination on the Traveller community and race ground in relation to accommodation needs and related matters.  My investigation of this complaint commenced on the date of the assignment of the complaints to me on 12^th October 2006.

Several complaint forms were lodged with the Tribunal on behalf of each individual complainant.  I decided to associate the complaint forms by family groups so that each complainant family would have a separate hearing before the Equality Officer, as the same set of circumstances pertained to each family group (see Decision Mongans & others v Clare County Council, DEC-S2006-084).  I also decided in the interest of the efficient management of the cases to arrange an initial hearing (hereinafter called a callover/hearing as appropriate) of all the cases, because some complainants in other cases concerning similar issues had not attended hearings at the appointed time and this resulted in wasted time for both the Tribunal and the respondent.   

4.2       As my investigation of the complaints had already commenced, the purpose of the callover/hearing was to continue that investigation and to open the hearing and establish some further and additional information about the complaints.  The parties’ representatives were notified orally at hearings in January 2007 and again in February 2007 that it was the intention of the Equality Officer to arrange a callover/hearing of the cases in the interest of efficient case management.  The parties’ representatives were then notified in writing on 24^th April 2007 that the callover/hearing was taking place on 28^th May 2007.  In a letter dated 26^th of April 2007 to the complainants’ lay representative, Ms. Heather Rosen, I wrote as follows: “As you are the representative on record you should take note that it is your responsibility to notify the complainants directly of the callover/hearing.  If for any reason you cannot notify the complainants or if you are no longer representing any or all of the complainants please provide me with their contact details immediately and I will notify them directly.  If you do not provide me with these contact details, I will take it that you have notified all the complainants of the callover/hearing.   If they do not attend and in the absence of a documented valid reason for their non-attendance, I may decide that they have failed to establish a prima facie case of discriminatory treatment and their cases may be dismissed. Please confirm by 17th May 2007 that you have notified the complainants of the callover/hearing”.

            I issued this warning letter to the complainants’ representative in the light of previous cases where complainants failed to attend. Under section 25(4) of the Act, I did not find in favour of the complainants in these cases. (see decision Michael Mongans & others v Clare County Council, DEC-S2006-084)

4.3        In a letter to the Tribunal, in response to the notification of the callover/hearing, Ms Rosen requested that the callover/hearing of the cases not take place as it would be impossible for her to notify all the complainants.  In a response letter dated 4^th May 2007, I asked Ms. Rosen to give me the complainants’ contact details and that I would notify them directly of the callover/hearing.  In further correspondence with the Tribunal Ms. Rosen asked that the callover/hearing be set aside because she was of the opinion that it was an inappropriate procedure for the Tribunal to adopt.  Ms. Rosen was informed that the callover/hearing would not be postponed because she had not provided good and sufficient reason to justify the granting of an adjournment.  Ms. Rosen informed the Tribunal that she would not provide the contact details of the complainants because to do so would breach the trust of the complainants.  In a response letter dated 10^th May 2007, I again reminded Ms. Rosen that as she did not provide contact details and her address was the only address on file for the complainants, it was her responsibility to notify the complainants.  I also informed her that if the complainants did not attend the callover/hearing it may be determined that they had failed to establish a prima facie case of discriminatory treatment and the complainants risked a finding not in their favour, in that event and in the absence of documented proof that exceptional circumstances had arisen preventing their attendance at the callover/hearing.

            In a further letter dated 15^th May 2007, I again notified Ms. Rosen that it was her responsibility to notify the complainants of the callover/hearing on the 28^th May 2007, given that their contact addresses had not been provided to the Tribunal.

4.4        Ms. Rosen then requested another adjournment of the callover/hearing to allow her to present evidence from expert witnesses in relation to difficulties encountered by Travellers. She said that this evidence would support her view that Travellers would have difficulties in attending a callover or hearing.  This request was also refused because Ms. Rosen did not establish that exceptional circumstances had arisen which would warrant the granting of the adjournment. In a letter to Ms. Rosen dated 17^th May 2007, I reminded Ms. Rosen of the callover/hearing on the 28^th May 2007 and I asked that she confirm the attendance of the complainants.

4.5        Ms. Rosen made a further application to the Tribunal for the adjournment of the callover/hearing list due to the unexpected tragic death of a young Traveller woman.  An adjournment was granted in the case of close relatives of the deceased, but not in the other cases listed.    The Tribunal sat on Monday 28^th May 2007 at 2pm and I opened the hearings of all the named complainants on the list.  The complainants (John and Angela Mongans and their children) did not attend.  Ms. Rosen told the Tribunal that they would attend the following day.   I called the list twice and I heard evidence from other complainants named on the list who attended the hearing. I then closed the hearing.

4.6        At 10am on 29^th May 2007 I again opened the hearing and I called the list.  The complainants herein were not present on either day when their names were called. I then closed the hearing. Some complainants arrived at the hearing venue following the conclusion of the hearing and Ms. Rosen requested that the hearing be reopened.  I refused this request firstly on the basis that I had opened the hearings and heard from all persons desiring to be heard. Secondly I called the list on three occasions, twice on the 28^th of May and once on the 29^th of May, and the complainants were not present on either date when their case was opened by me and, thirdly the respondent had already left the hearing when the complainants arrived.

The respondent’s representative requested that the complaints be struck out and dismissed under Section 38 of the Equal Status Acts.

5.         Conclusions of the Equality Officer

5.1        A number of matters for consideration arise at this point. Firstly I am satisfied that the complainants, John & Angela Mongans and their children, had notification of the callover/hearing arranged for Monday 28^th May 2007, because I am satisfied that their representative had notification.  It is the practice of the Tribunal to communicate with the representative where there is a named representative on the referral form. In line with normal practice, I have deemed the service on the representative as service on the complainants.  I find therefore that the complainants had valid notification of the hearing.  I am satisfied that the complainants through  their representative, Ms. Rosen, were on notice both orally and in writing of the consequences of their failure to attend without providing valid and exceptional reasons.

5.2        The next matter for consideration is the respondent’s application to have the complaints struck out under sections 22 and 38 of the Equal Status Acts.  It should be noted that the Equality Officer has no power under the Act to strike out a case, but I have power to dismiss under sections 22 and 38.  Dismissals may occur when a complainant is deemed to have ceased to pursue his/her case under section 38 of the Act and under section 22 when a claim is deemed to have been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

Following the failure of complainants, in similar cases against the respondents, to attend a callover/hearing, I issued decisions finding in favour of the respondent under Section 25(4) of the Act, finding that the complainants in these cases failed to establish a prima facie case of discriminatory treatment due to their failure to attend. (See cases Michael Mongans & others v Clare County Council [4] ) Subsequent to the issue of these decisions the respondents solicitor, in a letter to the Tribunal, stated that I was incorrect in law in issuing decisions under Section 25 of the Equal Status Acts.  The solicitor submitted that the correct statutory basis for making a decision in cases where complainants fail to attend a hearing is either Section 38 or Section 22 of the Equal Status Acts.  The solicitor invited the Tribunal to make findings under either of these sections in future appropriate cases. The solicitor went on to say that the complainants, in a situation where they did not attend a hearing had no right of appeal and if the Tribunal continued to issue decisions under Section 25(4) and continued to tell parties that there was a right of appeal to the Circuit Court under Section 28 of the Act that the respondents would institute legal proceedings against the Tribunal.

            Section 22 of the Equal Status Acts

5.3        In considering these points and in the light of earlier submissions by the respondents that the cases should be struck out under the section 22 of the Act, I now turn to section 22 of the Equal Status Acts which provides:

           (1)  The Director may dismiss a claim at any stage if of the opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

            (2) Not later than 42 days after the Director dismisses a claim under this section, the complainant may appeal against the decision to the Circuit Court on notice to the Director specifying the grounds of the appeal.

            The complainants, who are members of the Traveller community, are alleging acts of discriminatory treatment in relation to their application for accommodation/housing and related matters under the Equal Status Acts. I am therefore satisfied that their complaint is a valid and admissible one in accordance with the Act.

5.4        The next question for consideration is whether the complaints were made in bad faith or are frivolous, vexatious, misconceived or relate to a trivial matter.  To act in bad faith or with mala fides means that the complainants are abusing the process by acting fraudulently, deceitfully or dishonestly.  There has been no evidence provided by the respondent to support this contention.  It should be noted that the failure to establish discriminatory treatment under the Act is not proof that the complainants have acted in bad faith.

            The meaning and scope of the words ‘frivolous and vexatious’ were succinctly           articulated in a decision of the Supreme Court by Barron J in Farley v Ireland & Ors[5] in     which he stated:

“So far as the legality of the matter is concerned frivolous and vexatious are legal terms, they are not pejorative in any sense or possibly in the sense that Mr. Farley may think they are.  It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case.  Similarly, it is hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls vexatious.” 

            In the case of Ruby Property Company Limited & Ors v Kilty & Ors [6] McCracken J.    stated:

“..It is quite clear that the Court can only exercise the inherent jurisdiction to strike out proceedings where there is no possibility of success.  If there is a dispute on facts on affidavit which is not resolved by admitted documents, then it will be virtually impossible for a defendant to have proceedings struck out as being unsustainable.  The remedy sought by the Defendant is a remedy which has the effect of shutting out a citizen’s right of access to the Courts, which is a right which is very closely guarded and protected by the Courts themselves, and by the Constitution.  Therefore, if the Defendants are to succeed in this motion, they must show that on facts which either are in dispute, or are disputed on grounds which can only be considered as frivolous or vexatious, the Court should allow the action to proceed.”

5.5        The definition of ‘vexatious’ in Collins English Dictionary & Thesaurus 21^st century edition is as follows: “(of a legal action or proceedings) instituted without sufficient grounds, especially so as to cause annoyance to the defendant”.   The meaning for ‘frivolous’ in the New Shorter Oxford English Dictionary, 1993, includes of little or no importance, having no reasonable grounds, lacking seriousness or sense. 

5.6        As I have stated above, I am satisfied that the complaint are valid in accordance with the Acts and likewise, I am satisfied from the supporting documentation provided on behalf of the complainants that the claims were not instituted without sufficient grounds. I have not been provided with any evidence to suggest that the claims were instituted to cause annoyance to the respondent. Applying the above case law to the facts of the complaints in the cases herein, I find that there has been no evidence provided to support the contention that the complaints are unsustainable and confer no benefit on the complainants.  I find therefore that the complaints are not frivolous or vexatious. 

5.7        The next matter is whether the complaints relate to a ‘trivial matter.  The meaning of trivial in New Shorter Oxford English Dictionary, 1993 include ‘of small importance and concerned only with trifling or unimportant matters, ‘of no significance’.  I am satisfied that the complaints are admissible complaints in relation to housing and other related matters and therefore are not complaints about unimportant and matters of no significance. I find that the complaints are not related to trivial matters.

5.8        The next matter is whether the complaints are misconceived.  In the case of Dornan and Development Ltd. v The Labour Court & Ors [7] Geoghan J found that an application for judicial review ‘misconceived’ because it could only have the effect of removing the applicant’s limited right of appeal (under the Employment Equality Act, 1977) and not of extending that right of appeal which was the purpose of the application.  In Keane v Minister for Justice [8] Lynch J found that the Minister for Justice had no statutory power to relieve Leitrim County Council of its duty to provide courthouse accommodation in Carrick -on-Shannon and that her direction to the Council to this effect was therefore ‘wholly misconceived and invalid’.  A complaint is misconceived if it is incorrectly based in law, for example, if the complaint did not relate in any way to the nine discriminatory grounds under the Equal Status Acts it would be misconceived.  In the complaints herein, they are admissible as they relate to one of the discriminatory grounds.  I find therefore that the complaints are not misconceived.  Consequently I find that Section 22 is not applicable to this case and the complaints cannot be dismissed under this section for the reasons set out.

           Section 38 of the Equal Status Acts, 2000-2004

5.9        I am now considering the case under Section 38 of the Act which provides:

           (1) Where a case is referred to the Director and, at any time after the expiry of one year from the date of the reference, it appears to the Director that the complainant has not pursued, or has ceased to pursue, the reference, the Director may dismiss the reference.

            (2) As soon as practicable after dismissing a reference, the Director shall give notice in writing of that fact to the complainant and the respondent.

            (3) Where a reference is dismissed under this section, no further proceedings may be taken in relation to that reference, but nothing in this section prevents a person from making a further reference in relation to the same matter (subject to any applicable time limit).

            To apply this section I have to be satisfied that one year has elapsed since the referral of the complaints and I have also to be satisfied that the complainants have ceased to pursue their case. The complainants in this case lodged a number of referral forms in relation to the same issue with the Tribunal, the first in August 2005 and the last in November 2006 and the callover/hearing took place on the 28^th and 29^th of May 2007.  I am satisfied therefore that at the time the application was made that one year has not expired since the date of the last reference so I cannot dismiss this case under section 38.  Secondly, the complainants’ representative, Ms. Rosen, has been in constant correspondence with the Tribunal about the complaints.  She attended the callover and hearing and indicated that the complainants intended to be present and in fact the complainants turned up after the hearing had concluded.   Consequently I am not satisfied that the complainants have ceased to pursue their complaints.   Therefore, I find I cannot dismiss the complaints under section 38 of the Act as it does not appear to me that the complainants have ceased to pursue their reference to the Tribunal.

           Referral of Complaints to the Tribunal

5.10     The respondent solicitor has submitted that the complaint forms and the notification forms which were referred by Ms. Rosen were not signed by the complainants and consequently the Tribunal has no actual proof that the complainants intended bringing a claim under the Act.   It was also submitted that because the complainants themselves had no contact with the Tribunal and because the Tribunal did not have contact details for the complainants other than their representative’s details the Tribunal could not contact the complainants directly and consequently the Tribunal has no proof that the complainants actually intended taking a case.  They further submitted that it was the complainants’ representative Ms. Rosen who decided to take the complaints to the Tribunal and that in many of the cases the complainants had no actual intention of pursuing the complaints and may not be aware that the complaints had been taken on their behalf. 

5.11      Section 21-(1) of the Equal Status Acts 2000-2004 provides that:

“A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director.

The complainants through their representative, Ms. Rosen, sought redress by referring their complaint to the Tribunal.  

5.12     In considering the submission made by the solicitor for the respondent’s in relation to the referral of these cases and the signing of the referral forms by Ms. Rosen on behalf of the complainants, I note that section 25A of the Act provides:

           “A party (whether complainant or respondent) to proceedings under section 24 or 25 may be represented by any individual or body authorized by the party in that behalf.”

            I am satisfied that Ms. Rosen is the complainants’ representative in this case and that as the representative she has assisted the complainants in referring their complaints in accordance with section 21(1) of the Act and has signed the referral forms on their behalf.  Likewise I am satisfied that she is entitled to take on this representation role in accordance with section 25A. (for further analysis of section 25A see paragraph 7.4 – 7.7  below). It should also be noted that there are no prescribed forms on which a notification under section 21(2) of the Act must be made to the respondents, or a referral of a complaint to the Tribunal under section 21(1) of the Act.  There is no legal or statutory requirement for the complainants to either use or sign the Tribunal’s referral form which Ms. Rosen completed in this case on behalf of the complainants.

5.13     The role of the Equality Officer is to investigate the complaints, hear all the parties desiring to be heard and to make a decision based on the facts presented.  Legal representatives regularly refer cases to the Tribunal using their business address. It is not the function of the Equality Officer to interfere with a party’s choice of representation, nor has the Equality Officer any power under the Act to remove the representative of any party. 

            I find therefore that the complaints are correctly before me under section 21(1) of the Act.

            Section 25 of the Equal Status Acts

5.14     This case was assigned to me for investigation under section 25 of the Act and I am satisfied this is the appropriate legal basis on which to make a decision in this case as
I have made a finding above that neither section 22 or 38 of the Act can apply in these cases for the reasons outlined above.  Section 25 provides:

               "(1) Where a case has been referred to the Director under section 21- .........

            the Director shall investigate the case and hear all persons appearing to the Director to be interested and desiring to be heard".

               I decided to hold the callover/hearing in the interest of the efficient management of a large volume of cases lodged by Ms. Rosen on behalf of a large number of complainants. I started the investigation of these cases when the complaints were assigned to me on 12^th October 2006.   I sat on Monday 28^th May 2007 at 2pm and I opened the hearing of the case of John and Angela Mongans and children.  They did not attend.  Despite having been notified by the Tribunal that the callover/hearing was taking place on the 28^th of May 2007 at 2pm, Ms. Rosen told the Tribunal that she had told the complainants to attend the following day.  I sat again on 29^th May at 10am and I opened the hearing. I called the callover/hearing list. The complainants were not present when their names were called.  The complainants’ representative stated that she was expecting them to attend. I heard submissions from the representatives and I then closed the hearing. Following the conclusion of the hearing the complainants arrived and their representative requested that the hearing be reopened.  I refused this request because the complainants were not been present at the hearing on either day when I opened the hearing and the respondent had already left when the complainants attended. I am satisfied  that I heard from all persons appearing to me to be interested and desiring to be heard, that I had heard submissions from the respective representatives and that my investigation  concluded when I closed the hearing.

Section 25(4) of the Equal Status Acts provides:

“At the conclusion of an investigation under this section the director shall make a decision on the case, and the decision, if it is in favour of the complainant, shall provide for redress in accordance with section 27.”

             I concluded the investigation and the hearing and my decision under section 25(4) is not in favour of the complainants as no evidence of discrimination was presented in support of the allegation of discrimination at the hearing.

6.          Issues concerning the Investigation of all of these cases to date.

6.1      I am taking the opportunity in this Decision to address a number of issues which have arisen during the course of investigating this case and all the other cases from different complainants concerning the same issues referred by the complainants’ representative, Ms. Heather Rosen, on behalf of a large number of complainants against this respondent. What follows below, while being written in the context of this Decision, applies to my investigation of all of these cases.

   Section 37 Obstructing and Impeding the Investigation

6.2       A number of issues have arisen in relation to the conduct of these cases by the complainants’ representative.  As a result of the intervention of Ms. Rosen a number of complainants did not turn up for the callover/hearing.  Ms. Rosen referred a large number of complaints against the same respondent on behalf of a large number of complainants during the period January 2004 to November 2006.  A procedural hearing was held in May 2006 to deal with a number of issues in relation to the cases referred in 2004 and to outline to the parties the Tribunal procedures in relation to the investigation and hearing of the cases.  I commenced hearing these cases in May 2006 and a number of difficulties arose in relation to the progress of the hearings.   In the week commencing 16^th October 2006 I listed a number of cases for hearing.  A number of issues arose during the first hearing scheduled for that week and as a result none of the complainants attended the hearings.  (see Michael Mongans & others v Clare County Council [9]).  This resulted in a lot of Tribunal hearing time being wasted and very little progress was made in processing the large volume of cases awaiting hearing.  As a result of this and because of the conduct of the complainants’ representative, Ms. Rosen, during the hearings up to that time I found it necessary to write to her on the 13^th November 2006.  I pointed out to her that her behaviour, in refusing to adhere to Tribunal procedures and to directions and rulings issued by me in relation to the conduct of the cases, was unacceptable. I warned her that I considered her behaviour was obstructing my investigation and hearing of the cases and I asked her to take note of section 37 of the Equal Status Act and I set out the powers of the Director and I warned her that it was an offence to obstruct or impede the Director or an Equality Officer.  I also pointed out to Ms. Rosen in that letter that the Tribunal had power under section 37A to make an award expenses if the Director was of the opinion that she was obstructing or impeding the investigation.  I also warned her that in future cases if the complainants did not attend an arranged hearing, I would, in the absence of a valid and exceptional reasons supported by documentation, make a finding against the complainants.  

6.3       Despite this warning Ms. Rosen continued to be disruptive at hearings, refused to accept rulings of the Equality Officer during the course of hearings and failed to cooperate with the investigation of the complaints. She has also continued to apply for adjournments without providing valid or exceptional reasons and supporting documentation.  I decided as a result of the apparent time wasting exercises engaged by in by Ms. Rosen, which occurred during the October 2006 hearings, and in the interest of the efficient management of the cases under investigation by me and awaiting hearings, that I would hold a callover and open the hearings of the cases referred in 2004 and 2005.  This was arranged for the 4^th December 2006. I notified the parties both orally and in writing of the date.  Ms. Rosen made an application to the Tribunal to have the hearings/callover adjourned on the grounds that she was on holidays and unable to contact the complainants. 

6.4       The adjournment was granted and the callover/hearing was listed for the 15^th January 2007.  Ms. Rosen again sought an adjournment and requested that a callover/hearing should not take place and that the Tribunal should find some other way to deal with the cases.  The adjournment application was refused except in one case where the complainant was due to give birth. On the day of the callover/hearing Ms. Rosen again requested an adjournment which I refused as Ms. Rosen did not provide any exceptional grounds which would warrant the granting of the applications. In all cases Ms. Rosen failed to provide documented valid and exceptional reasons for the applications.  In the cases where the complainants did not attend, I found in favour of the respondent under section 25(4) of the Equal Status Act.  (Jim Mongans & others v Clare Clare Council [10]  refers)

6.5       On 28^th May 2007 I arranged a callover/hearing of further cases against Clare County Council which were under investigation by me and lodged with the Tribunal during the period 2005 and 2006. Again Ms. Rosen made several applications for adjournments prior to the set date (see paragraphs 2.2 - 2.4 above). The Tribunal accepted that exceptional circumstances were established by two complainant families and adjourned these cases and the remaining applications were refused.  Ms. Rosen again objected to the holding of the callover/hearing by the Tribunal and requested that the Tribunal find some other way to deal with the list of cases. Twelve complainant families attended the callover/hearing. Ms. Rosen stated at the callover/hearing on the 28^th of May that she knew the callover/hearing could not be completed in the time allocated. She told me during the course of the hearings that she had advised some of the complainants to attend the following day.

6.6        The callover/hearing list was numbered and it was my intention to call it in that order.  Ms. Rosen told me that she had decided in consultation with the complainants the time and sequence in which the complainants would appear. Some would appear on Monday afternoon and some would appear the following day. This action was in direct contravention to the callover/hearing notification which stated that the callover/hearing would commence at 2pm on Monday and that in the event of the list not being completed it would resume the following morning.  This is another example of Ms. Rosen not cooperating with the investigation and complying with my instructions. It was, in my view, an attempt to run the callover/hearing in accordance with a timetable decided by Ms. Rosen. I am satisfied that Ms. Rosen and the complainants were on notice of how the callover/hearing would proceed. She was also aware of the consequences for the complainants if they did not attend or if she did not provide the Tribunal with a valid documented reason for their non-attendance.

6.7       As Ms. Rosen had instructed some of the complainants to attend on Tuesday 29^th May 2007, I decided that I would open the hearings and call the list again at 10am that morning in the interest of fairness to her clients.   Once again Ms. Rosen objected and told me that this was not a suitable time for the complainants and she had told them to attend at later times.  I sat at 10am on Tuesday the 29^th of May 2007 and I opened the hearings and called the list.  One complainant attended.  In a response to a question from me concerning her absence the previous day she said she was aware that Ms. Rosen had made a complaint on her behalf and that she wished to continue with it.   She also said that she only learned from Ms. Rosen that she was required to attend the Tribunal the previous evening (28^th May 2007) and after that hearing was over.

6.8        In further incidence of non-cooperation with the Tribunal, Ms. Rosen’s failed to provide the Tribunal with contact details for the complainants.  She has constantly complained that due to the large volume of cases listed for callover/hearing she had neither the time nor the resources to contact all the complainants.   I asked her for their contact details in order to notify the complainants directly in relation to the callover/hearing on 15^th January 2007.  Ms. Rosen refused initially to provide the details sought and I issued her with a letter requiring the details under section 34(1) of the Act.  Ms. Rosen reluctantly provided them in relation to the first callover/hearing in January albeit at a very late stage. She refused to provide contact details for the callover/hearing on the 28^th May 2007.  She refused on the basis that the contact details were given to her in confidence and to provide them to the Tribunal would breach that confidentiality.  At the callover/hearing on the 28^th of May in response to a question from me the complainants who attended the hearing said that they had no objection to the Tribunal having their contact details.  It should be noted that during the course of the callover/hearing Ms. Rosen objected to me seeking the contact details from the complainants.

6.9        During the callover/hearing on the 28^th and 29^th May 2007 Ms. Rosen continued to challenge my rulings and continued to interrupt the callover/hearing and refused to leave the Tribunal when requested.  When the hearing was closed she refused to accept that I was not reopening it to hear complainants who had arrived late despite the fact that the respondent had left.

6.10     It is my opinion, taking into account the totality of the matters outlined above, that Ms Rosen has obstructed and impeded my investigation and hearing of these cases.    I am of the view that Ms. Rosen has willfully abused the Tribunal process and has sought to manipulate the manner in which I carry out my investigative and decision making functions.  This behaviour including the time wasting exercises engaged in by Ms. Rosen during the course of my investigation of these cases to date cannot be tolerated by the Tribunal.  The behaviour has resulted in a lot of wasted time and resources for both the Tribunal and the respondent party.

6.11     I note that the respondents appeared with their legal representatives at all the appointed times when the cases were listed for callover and hearing, thereby incurring legal costs and expenses.    I am also conscious the amount of time and resources invested by the official in researching evidence for each case listed and the impact this is having on the respondent organisation when this information is not required by the Tribunal because the complainants have not attended due to reasons connected to their representative.  Likewise I am also conscious that there is a cost to the tax payer, in that the Tribunal’s time has been wasted on a number of occasions and unnecessary costs have been incurred, all resulting from the actions and behaviour of Ms. Rosen and the non-appearance of the complainants at scheduled hearings and callovers for whatever reason.

6.12     Section 37A of the Equal Status Act, 2000 as amended by the Equality Act, 2004 empowers the Director to award expenses. Section 37A provides that:

(1) “the Director may, if of the opinion that a person is obstructing or impeding an investigation, order that the person pay to another person a specified amount in respect of travelling or other expenses incurred by that other person in connection with the investigation.” 

 (2) Notwithstanding subsection (1), expenses shall not be payable in respect of the attendance at the investigation of any person representing a complainant or respondent.”

For the reasons outlined above I find that Ms. Rosen’s  behaviour and actions have obstructed and impeded my investigation and an award of expenses to the respondent is warranted. 

6.13     In considering section 37A(2) I note that I cannot make an award of expenses in respect of a representative attending the investigation. I am of the view that “the attendance at the investigation” would exclude giving expenses to a representative attending a hearing but other expenses incurred by the respondents, other than legal expenses, such as  pre-hearing preparatory work is not excluded.  This could include the costs of extra clerical assistance required by the respondent to carry out tasks in preparation for the hearings. I note that there were two officials from Clare County Council present each day the case was scheduled and I am satisfied that they would qualify under the Act for expenses in connection with the investigation and attendance at the hearings.  Because the officials did not incur travelling expenses, as the hearings took place in Ennis adjacent to their place of work, I am not making an award under this heading.  I can make an award in relation to other expenses which could include time spent by the two officials in collating the material for the case, salaries paid by the respondent in respect of their time spent at the hearing or carrying out work in connection with the investigation, meals, telephone calls, photocopying and other offices expenses incurred in connection with the investigation.   Taking into account the fact that I warned Ms. Rosen in writing about her behaviour in November 2006 and the fact that there has been no improvement in her cooperation with the Tribunal leads me to the conclusion that an appropriate award of expenses against Ms. Rosen is warranted.  Having regard to the factors above which I have taken into account in relation to expenses, I have concluded that an award of €200 expenses to the respondents in this case would be appropriate in the circumstances.

7.         Issues Raised by the Respondent

7.1       There are a number of issues raised in correspondence by the respondent’s solicitor which I am now going to address.  The first issue concerns the refusal of Ms. Rosen to provide me with the addresses of the complainants listed for the callover/hearing on 28^th of May. 

           Complainants’ Addresses

7.2       For the previous callover/hearing in January 2007 (see Decision Mongans & others v Clare County Council DEC-S2007-012) I used my powers under section 34(1) of the Act and required Ms Rosen to provide me with the contact details which she did.  For the callover/hearing on 28^th May 2007 I did not require Ms. Rosen to produce the information under section 34(1) because I had repeatedly warned her of the consequences for the complainants if they did not attend the hearing.  I also made her aware that as her address was the only contact I had on file for the complainants, notification to her was deemed by me to be notification of the complainants. Consequently it was not necessary to use my powers under section 34(1) of the Act.  I was satisfied therefore that it was not necessary at this point in my investigation of the cases to date to seek an order of the Circuit Court under section 35(1)  to obtain information concerning the complainants contact details.

     Complainant’s Representation

7.3       The respondents’ solicitor has made a number of written submissions to the Tribunal requesting that the Equality Officer remove Ms. Rosen from her role as representative of the complainants. The solicitor has been informed in writing on a number of occasions that section 25A of the Act provides that either party may be represented by any individual or body authorised by the party in that behalf and furthermore the Equality Officer has no power under the Equal Status Acts to remove Ms. Rosen as the complainants representative.  The solicitor has continued to ask me to take this course of action.  I have informed him that I have no power under the Act to do so.  The solicitor submitted the following:

            “TAKE NOTE that the respondent herby requests the Tribunal to deliver a decision on the issue of Ms. Rosen’s representation within 7 days from the date hereof.  In the event that Ms. Rosen is not dismissed from acting in this forum, the Respondent will apply to the High Court for a Judicial Review of the entire matter.”

7.4        Subsequent to this submission the respondent’s representative has made a series of submissions requesting that I remove Ms. Rosen from her representational role. They have submitted that I should compulsorily remove Ms. Rosen from representing the complainants in cases where the complainants confirm they wish her to represent them.

            The respondent’s solicitor submitted as follows: the Tribunal… (i) first of all now directly ascertain from the named Complainants individually, if and why they wish to have the services of Ms. Rosen as representative in a hearing under section 25, and (ii) even if such authority and representation is confirmed to the Tribunal, to refuse the individual Complainant, the services of Ms. Rosen as representative, where there is good and sufficient reason for doing so. [Fairness of procedures to the named Complainant can be ensured by then affording a reasonable period of time to the named Complainant should it be so required, for the purposes of engaging alternative representation for the hearing of the complaint and upon expiry of such reasonable period, the matter proceeds, so as to ensure fairness of procedure to the Respondent]”        

7.5       I have considered this request and as I have no power under the Act to take this course of action, I have concluded, having regard to my powers under Section 37A of the Acts that the most appropriate way to deal with the behaviour of Ms. Rosen during the investigation and hearing of these cases is as set out above (see paragraph 4.10 – 4.13 above).  Given that the complainants have indicated that they wish to have Ms. Rosen representing them, and also given that they have no other representative, it would be inappropriate and unfair to deprive them of Ms. Rosen’s representation.  I note that the respondents’ solicitor has submitted that the complainants have had the benefit of legal advice and representation in other matters before the Courts, thereby implying that they could have such representation before the Tribunal.  The Equality Officer cannot interfere in the complainants’ choice of representation before the Tribunal.  It should be noted that section 25A of the Act provides that lay representatives can represent either complainants or respondents before the Tribunal.

7.6        In a further submission to the Tribunal the solicitor has submitted that the complainants are not entitled to representation at the point they referred their complaint to the Tribunal.   Section 25A provides as follows: “A party (whether complainant or respondent) to proceedings under section 24 or 25 may be represented by any individual or body authorised by the party in that behalf”.  Under section 2(1) of the Equal Status Acts 2000-2004 “proceedings” means –

(a) “proceedings before the person, body or court dealing with a request or reference under this Act by or on behalf of a person, and

(b) any subsequent proceedings, including proceedings on appeal, arising from the request or reference,”

The respondent’s solicitor submitted that proceedings under section 25 “does not encompass or include, the referral of a claim by a Complainant for redress to the Director, nor does it involve representation by Ms. Rosen on behalf  of a named Complainant, until the Director or Equality Officer has commenced upon the investigation of that Complainant’s complaint, yet the Tribunal has continued to indulge Ms. Rosen in these respects, without any statutory requirement or obligation to do so in the circumstances and with oppressive and onerous financial consequences for Clare County Council.”

      Proceedings clearly include a request or reference by or on behalf of a person. I am satisfied that the definition of “proceedings” clearly envisages representation with a reference of a claim to the Tribunal.  For the purposes of clarification my investigation commenced when the complaints were assigned to me on 12^th October 2006.

7.7       If I were to accept the argument that the complainants are not entitled to representation with their complaints until the investigation of the complaints have been commenced by the Equality Officer, I would have to reject an accepted practice of this Tribunal and other similar quasi judicial bodies to accept complaint forms which have been referred by the legal profession, trade unions or other representative bodies on behalf of their clients. It is not logical to suggest that the complainants are not entitled to the assistance of the legal profession or other representation when either sending a notification to the respondent or when making a reference to the Tribunal.  I do not accept that “proceedings” only refers to the commencement of the investigation and the hearing of the complaint by the Equality Officer.  In considering the argument made by the respondents’ solicitor I have sought guidance in the High Court case of Declan O’Brien v. The Personal Injuries Assessment Board. [11] This case concerned the right to legal representation by the applicant in processing a personal injuries claim to PIAB. The policy of the Board was to deal directly with applicants and not with solicitors. Mac Menamin J, in holding that the Board’s policy was ultra vires, stated obiter “In my view there is also implicit in this case the fundamental issue of the right to retain legal representation in the context of various contentious matters.  This right has been recognized not only on court proceedings, but in a range of other fora, from quasi-judicial hearings to statutory bodies even of a strict administrative type where matters in issue are of serious import.”  He went on to say “the right to legal representation is not confined to court appearances.  For one thing, it inheres in each of the steps which are necessary, ancillary and preliminary to the bringing of court proceedings”.

7.8        I am satisfied that this reasoning is applicable to the case in hand. While accepting that the judgment cited above relates to legal representation, it is my conclusion that the same rationale can be applied to the case in hand as section 25A of the Equal Status Acts not only provides that parties may be legally represented but they can also choose lay representation if they so wish. I am therefore satisfied having regard to the obiter dicta of MacMenamin J. that the complainants are entitled to assistance and representation in accordance with Section 25A of the Act when referring a case to the Tribunal and this includes notifying the respondent under section 21(2) and referring a complaint to the Director under section 21(1). Also, in the interest of natural justice I am disinclined to accept the proposition that a person is not entitled to legal assistance/representation on the making of their claim to the Director.

7.9        Furthermore I do not hold that section 25A confines representation solely to matters related to the hearing as contended by the respondents.  Section 25, to which section 25A specifically refers, requires the Director to investigate the case: “Where a case has been referred to the Director under section 21”. I am of the view that section 25A provides a textual link to section 21 through section 25.  However, the issues in respect of which the respondents argue that the complainants are not entitled to representation are covered by section 21.  Therefore there is an inherent right to representation granted by section 25A for all matters covered by section 21.

Section 34(1) of the Equal Status Acts

7.10     The solicitor for the respondent has also submitted that Ms. Rosen, by failing to supply the contact details of the complainants to the Tribunal, she has failed to comply with a requirement under section 34(1) to furnish such information and have suggested that the Tribunal should apply to Circuit Court under Section 35 of the Act to compel Ms. Rosen to supply the contact details of the complainants. The respondent’s representative submitted as follows:

“The Tribunal has repeatedly emphasised to Clare County Council, most recently in its letter of 15^th inst, that it is a quasi judicial, independent and impartial body …..bound to apply fair procedures and natural justice That being so, in the interests and in the substantive application, of fairness of procedures to the Respondent and of the integrity and consistency of the Tribunal in the exercise of its statutory functions, we earnestly inquire on behalf of Clare County Council, as to whether the Tribunal shall now make an application to the Circuit Court, pursuant to section 35 of the Act, for an Order under that section, in the light of the flagrant disregard for this requirement of the Tribunal made under section 34, as has been exhibited by the Complainants’ representative, and if not, why not.”

7.11     Section 34 (1) provides:-

      “For the purpose of enabling the Director to exercise his or her functions under this Part, the Director – (a) may require a person who, in the opinion of the Director is in possession of, or has in his or her power or control, any information relevant to the exercise of those functions, to furnish that information to the Director, and (b) where appropriate, may require such person to attend before the Director for that purpose,

      and the person shall comply with the requirement accordingly.”

Section 35(1) provides:

      “If it appears to the Director or an equality officer that a person has failed to comply with –

      (a) requirement under section 33(2)(b), or

(b) a requirement under section 34(1), then, accordingly as the case may require, the Director or the equality officer may apply to the Circuit Court for an order under this section”.

7.12     It should be noted that I did not require Ms. Rosen to provide me with the contact details of the complainants under section 34(1) and therefore the respondent’s are incorrect in their contention in regard to section 34(1).   In a letter to Ms. Rosen I asked her to provide me with the contact details. I also warned her if she failed to provide me with the details it was her responsibility to inform the complainants of the date and time of the callover/hearing, as her address was the only contact address provided to the Tribunal. In the event where the contact details were not provided, I would then be satisfied that I could deem the notification to Ms. Rosen as notification to the complainants and the callover/hearing could proceed as scheduled on the 28^th of May 2007. Furthermore as I did not require the information under section 34 of the Act I cannot make an application to the Circuit Court seeking an order of the Court requiring Ms. Rosen to give me the complainants’ contact details.  Even if I did require Ms. Rosen to produce the contact details under section 34(1), seeking an order under section 35(1) from the Circuit Court is a discretionary power. Section 35(1) states that the equality officer may apply to the Circuit Court, I am therefore satisfied that section 35(1) is a discretionary power and it is the decision of the equality officer whether or not to use this power and I do not propose to use this discretionary power in this case.

7.13     The respondents also submitted that the failure of Ms. Rosen to comply with my instructions to supply me with the contacts details of the complainants has obstructed and impeded my investigation and requested that the Tribunal use its statutory powers provided in the legislation and to take proceedings under section 37 of the Equal Status Acts. The solicitor for the respondent submitted:

“……Clare County Council also has the right to expect, that in the substantive application of fairness of procedures to the Respondent and in the interests of the integrity and consistency of the Tribunal in the exercise of its statutory functions and for the purposes of preserving public confidence therein, appropriate proceedings shall be commenced against Ms. Rosen, having regard to the provisions of section 37 of the Equal Status Act 2000 and we also earnestly inquire on behalf of Clare county County Council, as to whether the Tribunal shall now do so.”

Section 37 (1) provides: “A person who –

(a) obstructs or impedes the Director or an equality officer in the exercise of powers under this Part, or

(b) fails to comply with a requirement of the Director or an equality officer given under this Part,

shall be guilty of an offence.”

It should be noted however that Section 44 (1) provides:

“Summary proceedingsfor an offence under any provision of this Act may be instituted by the Minister or the Authority”. (Equality Authority)

7.14     Therefore I have no power under Section 37(1) of the Act to take proceeding against a person who obstructs or impedes my investigation.  I can of course make a complaint to either the Minister for Justice, Equality and Law Reform or the Equality Authority and it is a matter for them to decide if proceedings should be taken.  I do not propose to take this action in this case as I am satisfied that this course of action is not necessary at this time.    I have powers under section 37A of the Acts to award expenses where I find a person has obstructed or impeded an investigation and I have used this power above where I have ordered Ms. Rosen to pay expenses. (see paragraph 4.12 – 4.13 above)

           Finances of Complainants’ Representative

7.15     Another issue raised in the respondent’s submissions concerns Ms. Rosen’s personal finances.  They have submitted that Ms. Rosen is funded by a charitable organisation and that they intend to investigate this and they have requested in a number of recent submissions that the Tribunal also investigate Ms. Rosen’s funding.  During the course of the hearings I disallowed questions in relation to this matter as the source of Ms. Rosen’s personal finances is not relevant to the investigation.  I note that the respondents have again raised the matter in a further submission to the Tribunal. I am now making a finding that it is not within the powers of the Equality Officer to investigate the funding of any representative including the complainants’ representative in these cases.   

Class Action

7.16     The respondents have also submitted that the complainants’ representative, because of the manner in which Ms. Rosen has presented the complaints to the Tribunal is attempting to pursue a class action against the respondent.   I have already ruled on this point in another decision Patrick Mongans & others v Clare County Council [12]  where I stated “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.”

      Referral of complaints to Tribunal

7.17     In a number of submissions the respondent has raised the manner in which the complainants’ representative referred the complaints to the Tribunal.  The complaints were referred to the Tribunal on one complaint form and naming all the complainants in a list attached to the form.  Ms. Rosen referred several complaints on behalf of large number of complainants in this manner. It should be noted that there are no prescribed forms for referring complaints to the Tribunal.  It is the practice of the Tribunal to accept the referral of complaints from a large number of complainants in the manner in which they were referred by Ms. Rosen.  There is no requirement for each individual complainant to lodge a separate complaint form with the Tribunal. It has been the practice particularly in equal pay cases for the representative to lodge one complaint with the list of names and this is acceptable referral to the Tribunal.  I therefore find that the referrals of the complaints comply with the practice of the Tribunal in this regard and that the referrals are properly before the Tribunal.

7.18     The solicitor for the respondent has also submitted that the information provided by the complainants on the complaint forms is insufficient and gives inadequate details to enable them to determine the nature of the allegations being made.  I am satisfied that the discriminatory grounds and the nature of the allegations have been identified both in the notification to the respondent and in the referral of the complaints to the Tribunal. I find that there has been sufficient information provided on the referral forms and the supporting documents submitted by the complainants to comply with the statutory requirements under the Act.   

8.         Submissions/Correspondence

8.1        In the course of these investigations copious correspondence has been submitted by both parties to me, the Equality Officer.  On several occasions I have requested the parties to confine the correspondence directly to matters relevant to the investigation.  Despite these requests the correspondence continues seeking my intervention in various matters. I find this highly unusual and inappropriate to be presented with such correspondence.

8.2       I note that some of the correspondence provided by both parties to the Tribunal has been directed to the Tribunal in general, and not to me, the Equality Officer.  I note also that matters concerning the hearings/investigation have been referred to the Director and she has been asked to intervene and take certain decisions.  It should be noted that once a case has been delegated to an Equality Officer the Act provides that s/he is independent in the performance of his or her functions.  Section 75 (5) of the Employment Equality Act 1998 provides:

           “The Director, equality mediation officers and equality officers shall be independent in the performance of their functions”.

            Section 75(7) provides:

            “Where, under subsection (4), the Director has delegated to an officer the function of hearing a case referred to the Director under section 77—

(a) the delegation shall be taken to include the power to issue a decision in the case,

(b) the function may not be exercised concurrently by the Director,”

8.3       The Tribunal applies this principle to investigations under the Equal Status Acts to ensure independence in the performance of functions. It is entirely inappropriate therefore for either party to request the Director to intervene in the process where she has delegated the powers to an Equality Officer. 

9.          Decision

9.1        In accordance with Section 25(4) of the Equal Status Acts, 2000 – 2004, I issue the following decision: as part of my investigation under Section 25 of the Act, I am obliged to hear all interested persons, I find that the complainants’ (John & Angela Mongans and their children Mary Anne, Margaret, Martina, Rosalena & Michael (ES/2005/151, ES/2005/341-347, ES/2005/372-378, ES/2005/548-554, ES/2005/804-811, ES/2005/954, ES/2006/146) failure to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 25(1) has ceased .  As no evidence was presented in support of the allegation of discrimination at the hearing, I conclude the investigation and I find against the complainants.

9.2       I order Ms. Heather Rosen, in accordance with section 37A of the Equal Status Acts 2000-2004, to pay to Clare County Council the sum of €200 (two hundred euro) for obstructing and impeding this investigation.

___________________

Marian Duffy

Equality Officer

   September, 2008