Equal Status Acts 2000 - 2008
Decision DEC-S2009-086
Aine Wellard V Whirlpool Ireland
Key words
Equal Status Acts 2000 - 2008 - Direct discrimination, section 3(1)(a) - Disability ground, section 3(2)(g) - Supply of goods and services, section 5(1) - Provision of a Braille version of a fridge manual
Delegation under the Equal Status Acts 2000 - 2008
The complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 -2004 on 7 November 2007. On the 12 December 2008, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to myself, Brian O'Byrne, 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, 2000-2008 on which date my investigation commenced.
Dispute
The complainant alleged that Whirlpool Ireland had discriminated against her by failing to comply with her request that she be provided with a Braille version of the fridge manual on its delivery. She also complained that the Braille documentation that was delivered to her some weeks later was of a poor quality and had not been transcribed by the company she had recommended.
Arrangement of Hearings
On 16 March 2009 both parties were notified by registered post that the Hearing of the complaint would be heard in the Tribunal's Offices on Monday 20 April 2009. Ms Wellard was also notified by email that same day as this was the manner in which she had originally lodged her complaint with the Tribunal.
On 5 April 2009, the registered letter addressed to Ms Wellard was returned by An Post marked "Refused not in Brail". On 17 April 2009, an officer from the Tribunal phoned Ms Wellard to confirm whether she would be in attendance at the Hearing on 20 April 2009 (on the presumption that she had received the email notification). She told him that she had not received any notification regarding the Hearing and that she would not be attending at such short notice.
As a result of this, the Equality Officer decided, in the interest of fair procedures and natural justice, to postpone the Hearing scheduled for 20 April 2009 and both parties were notified accordingly.
On 24 July 2009, both parties were formally notified that the Hearing of the complaint had been rescheduled for Tuesday 22 September 2009 in the Tribunal's Offices. The Tribunal arranged for Ms Wellard's notification to be translated into Braille format by her preferred company and then sent to her by registered post. Confirmation of the document's delivery was subsequently obtained through An Post's online "track and trace" facility.
On 22 September 2009, the respondents and their representative arrived in good time for the 10.30am Hearing. When Ms Wellard did not arrive for the Hearing at the appointed time, a staff member from the Tribunal's Secretariat phoned Ms Wellard to confirm that she was aware of the Hearing. When he asked her whether she had received the Braille notification she replied that "she had possibly received the letter but could not be sure".
The staff member said that he got the impression from Ms Wellard that she was not surprised to be receiving a call about a Hearing scheduled for that day. He said that she then went on to complain about the Equality Officer assigned to her case and about the Tribunal's Director, eventually saying that if the Hearing went ahead she "would go to the Press". When the staff member tried to establish if she would attend the Hearing that morning if the start time was delayed, he said that she became somewhat belligerent and hung up on him.
When Ms Wellard had not appeared by 11.15am, the Equality Officer convened the Hearing. At the outset of the Hearing, he indicated that, from the evidence before him, he was satisfied that the complainant had received formal notice of the Hearing date. He then went on to explain that, in cases under the Equal Status Acts, the onus was on the complainant to provide evidence establishing a prima facie case and that it was essential, in the interests of natural justice and fair procedures, that such evidence is provided in the presence of the respondents to afford them the opportunity to challenge any allegations made against them.
The Equality Officer then stated that, in the absence of Ms Wellard to give evidence and allow the respondents to cross-examine her, it would be his opinion that her complaint had failed and that a decision to this effect should issue.
At 11.20 am, the Hearing closed with the Equality officer stating that he proposed to issue a decision shortly on the lines of the above.
Decision
In complaints such as this, the onus is on the complainant to establish a prima facie case by appearing at the Hearing to give evidence. As the complainant in this case did not attend on 22 September 2009, and I am satisfied from the evidence to hand that she did receive formal notice of the Hearing date, I find that her complaint fails and I find in favour of the respondent in the matter.
Brian O'Byrne
Equality Officer
16 December 2009