Equality Officer’s Decision No: DEC-E/2009/035
Parties
Whelehan
And
Health Service Executive
File No: EE/2007/160
Date of issue 14 May, 2009
Headnotes
Employment Equality Acts, 1998- 2004 sections 6, 8, 14A, 74 and 77 – discriminatory treatment – harassment –victimisation -disability – timelimits – prima facie case – failure to attend Hearing..
1. BACKGROUND
1.1 The complainant referred a complaint under the Employment Equality Acts, 1998 and 2004 to the Equality Tribunal on 28 March, 2007 alleging that he had been (i) harassed by the respondent on grounds of disability, in terms of section 6(2) of the Acts and contrary to section 14A of the Acts and (ii) victimised in terms of section 74(2) of the Acts. In accordance with her powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 15 January, 2009, the date the complaint was delegated to me. The respondent rejected the complainant’s allegations in their entirety and notwithstanding this argument, submitted that the complaint was not validly before the Tribunal for investigation as it had been referred outside of the timelimits prescribed at section 77 of the Acts.
1.2 The Equality Officer decided, on perusal of the documentation submitted by the parties, that a question arose as to whether or not the complaint was validly before the Tribunal for investigation and he decided to deal with this question as a preliminary issue in accordance with section 79(3)A of the Acts. He notified the parties of his decision in this regard by letter dated 23 January, 2009 and advised that he had scheduled a Hearing to deal with this preliminary issue for the Equality Tribunal on Friday 27 March, 2009 commencing at 11am. He wrote to both parties again on 26 January, 2009 advising that date for the Hearing date was changed to Friday 3 April, 2009 (at the same time and in the same venue) because he had a prior engagement on the 27 March, 2009.
1.3 The respondent attended for the Hearing on 3 April, 2009 at 11am. When the complainant had not arrived by 11:10am the Equality Officer informed the respondent that he would arrange to have the complainant contacted and see if he was running later etc. A member of the Tribunal staff contacted the complainant on the telephone number provided by him on the original referral form. The complainant apologised for his non-attendance and advised this staff member that he had forgotten about the Hearing due to a family matter. This information was passed on to the Equality Officer. The Equality Officer opened the Hearing and informed the respondent of the above developments. He added that in the circumstances, he had decided to give the complainant seven days within which to submit the reasons for his non-attendance at the Hearing in writing, that this correspondence would be copied to the respondent for information and response within a similar period and that he would take the comments of both parties into consideration in making his decision on how to proceed. The Equality Officer wrote to the complainant on 3 April, 2009 requesting him to set out, in writing, within seven days, the reasons for his non-attendance at the Hearing. The complainant’s letter in this regard was received by the Equality Officer on 9 April, 2009. It was copied to the respondent on 17 April, 2009 and its response was received on 21 April, 2009. This response was copied to the complainant on 23 April, 2009.
2. SUMMARY OF COMPLAINANT’S CASE
The complainant spoke with a member of the Tribunal staff on the morning of the Hearing. He informed this staff member that he had forgotten about the Hearing due to a serious family accident. Later that day he contacted the same member of staff and informed him that he had no record of receiving the Equality Officer’s letter of 26 January, 2009, which set out the arrangements for the Hearing. In the course of this conversation the complainant added that his mother was unwell and there were other personal reasons (details supplied) which accounted for his failure to attend the Hearing that morning. The complainant restated these latter two reasons in his letter to the Tribunal of 7 April, 2009, adding that he had suffered a head injury earlier this year. He submits that the foregoing constitute valid reasons for his non-attendance at the Hearing and are sufficient to warrant the Tribunal rescheduling the Hearing for some future date.
3. SUMMARY OF RESPONDENT’S CASE
The respondent states that the Equality Officer decided to deal with the timelimit issue as a preliminary matter and notified the parties of the arrangements for the Hearing well in advance. It offers no comment on the reasons advanced by the complainant for his non-attendance
4. CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for consideration by me is whether or not the complainant has advanced reasons which both explain his non-attendance at the Hearing on 3 April, 2009 and are sufficient to warrant the Hearing being rescheduled for some future date. In reaching my Decision I have taken into consideration all of the submissions, oral and written, made by the parties to this Tribunal.
4.2 The complainant, when contacted by the Tribunal on 3 April, 2009, initially contended that he was not aware of the Hearing arrangements. I do not accept his assertion on this point. He confirmed to this Tribunal (by letter dated 26 January, 2009) that he had received my letter of 23 January, 2009 and requested the Tribunal to forward him a copy of his original complaint form. My letter of 23 January, 2009 had advised that the Hearing was scheduled for 27 March, 2009. The complainant did not turn up at the Tribunal on that date and I am satisfied that he did not do so because he had received my letter of 26 January, 2009 changing those arrangements. I am therefore of the opinion that the complainant was on notice of the Hearing scheduled for 3 April, 2009.
4.3 When contacted by this Tribunal on the morning of 3 April, 2009 the complainant’s immediate response was that he had forgotten the Hearing. He subsequently went on to detail other personal reasons for his failure to attend. All of these latter reasons relate to circumstances which were known to the complainant for some time. It was therefore open to him to request an adjournment of the Hearing at any stage between 26 January, 2009 and 2 April, 2009, citing these as the reasons for the application. He did not do so. I note the complainant confirms, in the first paragraph of his letter to this Tribunal dated 7 April, 2009, that he “totally forgot” about the Hearing. I cannot accept that such a reason warrants the Tribunal rescheduling the Hearing for some future date and in effect, granting the complainant an adjournment retrospectively.
4.4 The only issue which was to be addressed at the Hearing on 3 April, 2009 was whether or not the complaint was validly before the Tribunal for investigation, having regard to the respondent’s contention that the complainant had failed to comply with the timelimits prescribed at section 77 of the Acts. The Tribunal can only proceed with an investigation of a complaint where it is satisfied that such a complaint is validly before it. In light of my comments in the preceding paragraphs and the complainant’s failure to attend the Hearing to advance evidence in support of his assertion that his complaint is properly before the Tribunal, I find against the complainant.
5. DECISION OF THE EQUALITY OFFICER.
In accordance with Section 79(6) of the Employment Equality Acts, 1998-2008, I find that as the complainant failed to attend the Hearing as scheduled and advance evidence in support of the assertion that his complaint is properly before this Tribunal for investigation, his complaint on this point cannot succeed.
____________________________
Vivian Jackson
Equality Officer
14 May, 2009