The Equality Tribunal
3 Clonmel Street
Dublin2.
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Equal Status Acts 2000-2008
Decision
DEC-S2009- 030
Mary Mongans & Others
(represented by Heather Rosen)
v.
Clare County Council
(represented by Michael Houlihan & Partners Solicitors)
File Reference:ES/2004/0286, 289 -290, 292-293, 437, 440-441, 443-444, ES/2005/149, ES/2005/317, ES/2005/324, ES/2005/326, 328, 330-334, 356, 358-359, 361-365, 532, 534-535, 537-538, 540-541, 790-791, 793-795, 952, ES/2006/006, 022, 0144,
Date of Issue: 13th May 2009
Decision
DEC-S2009- 030
KeyWords
Equal Status Acts, 2000 –2004 - Direct discrimination, Section 3(1) – Traveller community, Section 3(2)(i) - provision of accommodation or services or amenities, Section 6(1)(c) – named respondent, vicarious liability, Section 42(1) – failure to attend hearing – failure to establish discriminatory treatment – failure to establish a prima facie case of discrimination - finding not in favour of complainant – frivolous, vexatious or misconceived, section 22 - failure to pursue complaint, Section 38 – award of expenses, section 37A.
Delegation under Equal Status Acts, 2000-2004
The complainants referred claims to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2004. On 23rd December 2004, 12th October 2006, 13th October 2006 and 17th December 2008, in accordance with her powers under section 75 of the Employment Equality Acts, 1998-2004 and under the Equal Status Acts, 2000-2004 the Director delegated the cases 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, I proceeded to hearing on the on 24th & 25 May 2006, 19th September 2006, 17th October 2006 and 2nd and 3rd of January 2009. The final submissions were received on 3rd March 2009.
Dispute
1.1 The dispute concerns claims by Mrs. Mary Mongans and her daughters, Mary, Rosie, Lisa, & Martina Mongans that they were discriminated against by named officials of Clare County Council and the Council itself on the Traveller community ground. The complainants allege that the respondent discriminated against them in terms of Sections 3(1)(a), and 3(2)(i) of the Equal Status Act, 2000-2004 and contrary to Section 6(1)(c) of that Act. They also allege that they were harassed contrary to section 11 of the Act. The 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. They also allege that the Council harassed them when notices were served on them to move from sites/open spaces where they had parked.
1.2 I am addressing three matters at the outset of this decision, the amalgamation of the referral forms, the named respondent and the statutory time limits. The full reasons for my decision in these matters are set out in the following decisions: Michael Mongans & others v. Clare County Council DEC-S2006-084, Jim Mongans & others v. Clare County Council DEC-S2007-012 and John & Angela Mongans & others v. Clare County Council DEC-2008-039
2.1 Referral Forms
The complainants lodged a large number of referral forms with the Equality Tribunal during the period 2004 to 2006 relating to issues connected with housing/accommodation and alleged harassment. An application was made to the Equality Officer by the respondent’s representative at hearings from 24th to 26th May 2006 to have all the complaints lodged by the same complainants relating to similar issues heard together. The complainants’ representative requested separate hearings for each separate complaint lodged in relation to housing / accommodation needs and related matters.
I ruled that the later complaint forms lodged by the complainants related to ongoing issues and therefore the original complaint forms lodged with the Tribunal encompassed all the issues and subsequent referrals would be treated as ongoing issues and that all these matters would be dealt with together at the one hearing. I informed the parties of this decision.
2.2 Named Respondent
The complainants referred their complaints against four named officials of Clare County Council and the County Council itself. At the commencement of the hearing an application was made by the solicitor for Clare County Council to have the named respondent changed. Having considered the matter and given the provisions of Section 42 of the Equal Status Acts concerning vicarious liability, I find that the named respondent should be Clare County Council and the case herein should proceed against this respondent only and not against the named individuals.
2.3 Statutory Time Limits
The other matter for consideration is, whether the complaints have been referred within the statutory time limits. 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.
3. Summary of the Case
3.1 I held hearings in this case in accordance with Section 25(1) of the Acts in May and September 2006 and the above named complainants attended and gave evidence at these hearings. A further hearing was arranged for 17th October 2006, but the complainants did not attend. Mrs. Mary Mongans subsequently sent in a medical certificate stating that she was ill on the day. I again listed the case for hearing on 29th January 2007 and it was adjourned at the request of both parties. The case was rescheduled for the 2nd December 2008, it was adjourned at the request of the respondent because of the unavailability of the respondent’s witnesses. The case was then rescheduled for 2nd February 2009. The complainants did not attend. Their representative said that she had expected them to attend because she had spoken to them the previous day and they confirmed they would attend. She said that she spoke to one of the complainants by telephone just before the hearing and she said that she was sick. The representative also said that Mrs. Mary Mongans’s husband was ill and consequently Mrs. Mongans was unable to get to the hearing because she does not drive.
3.2 On 3rd of February 2009, the complainants’ representative submitted letters to the Tribunal from four of the complainants. Ms. Rosie Mongans and Ms. Martina Mongans stated that they could not attend because they were ill and had to attend the doctor. Ms Lisa Mongans said that she did not know that the case was at hearing on that day. Ms. Mary Mongans junior stated in the letter that she could not attend because she had no lift and she does not drive. She also said that her father was unwell and could not drive her mother to the hearing in Ennis. A number of further letters was submitted by the complainants’ representative concerning personal family problems and enclosing a doctor certificate on behalf of Ms. Martina Mongans.
3.3 The respondent’s solicitor submitted that the complainant have ceased to pursue their complaints and that they should be dismissed in accordance with section 38 of the Equal Status Act 2000-2004. In support of this submission, Mr. Kieran O’Donnell, Traveller Accommodation Unit, stated that he spoke to Mrs. Mary Mongans on two occasions about two weeks before the date of the hearing on 2nd February 2009 and she stated that she was not attending the hearing because she was no longer interested in pursuing further legal action against the respondent.
The respondent ‘s solicitor further submitted that, in the alternative the complaints should be dismissed under section 22 of the Act on the grounds that the complaints were made in bad faith and /or are frivolous and /or vexatious and /or relate to a trivial matter. The solicitor also submitted that in the alternative the complaints should be dismissed.
4 Conclusions of the Equality Officer
4.1 I am satisfied from the complainants’ representative that the complainants were aware that the Tribunal hearings were scheduled to take place on 2nd and 3rd of February 2009. Likewise I am satisfied that they were aware that they were required to attend. The complainants did not attend the hearing and their representative requested an adjournment. The Tribunal only grants adjournments in exceptional circumstances supported by relevant documentation. A medical certificate stating that Ms. Martina Mongans had an appointment with a doctor was the only supporting documentation received from any of the complainants. I find that the medical certificate produced on behalf of Ms. Martina Mongans was not satisfactory in that the date was incorrect, the doctor’s appointment was scheduled for 10:30, and the hearing of the case was scheduled for 2pm. In my opinion there was sufficient time following the appointment for the complainant to attend the hearing on the 2nd February 2009.
4.2 All the other complainants wrote to the Tribunal giving reasons for their non-attendance and stating that they wished to attend to complete their evidence but no supporting documentation was received. As the complainants provided no satisfactory reasons supported by the relevant documentation for their non-attendance at the Tribunal hearing no further adjournment was granted. I find therefore that the complainants’ failure to attend was unreasonable in the circumstances and I concluded the hearing of the case under section 25 of the Act.
4.3 A person making an allegation of discrimination under the Equal Status Act, 2000 must first establish a prima facie case of discrimination treatment. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination. The complainant’s representative submitted that the complainants, who had attended the hearings in May and September 2006, had established a prima facie case of discrimination.
The complainants in this case gave evidence over 2 days to the Tribunal but they had not completed their evidence. Neither had the respondent completed their evidence nor had the solicitor for the respondent completed the cross examination of the complainants on all the complaints referred. The complainants also continued to lodge complaints about their housing needs and related matters with the Tribunal after the last hearing on 17th September 2006. As I had already ruled that I was hearing all the complaints referred by each family together it was also necessary to have another hearing to complete these matters. The complainants failed to attend the scheduled hearing on 2nd and 3rd February 2009 and to complete their evidence. Therefore I have concluded the investigation under Section 25(1) of the Act.
I find, on the evidence presented, that the complainants have not established a prima facie case of discriminatory treatment and my finding is not in favour of the complainants.
4.4 The solicitor for the respondent submitted that the case should be dismissed because the complainants have failed to pursue their complaints. In support of this contention they asked the Tribunal to take into account a conversation that an official from the respondent had with one of the complainants.
Section 38 of the Equal Status Acts 2000-2004 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.
The complainant’s representative attended the hearing on their behalf and requested an adjournment when they failed to appear. I note that in letters to the Tribunal both Ms. Rosie Mongans and Ms. Martina Mongans said that they had to attend the doctor on the day; Ms. Lisa Mongans said that she did not know the hearing was taking place and Ms. Mary Mongans junior said that she could not attend because she had no lift. I also note that all the complainants asked that the investigation of their complaints continue. Their representative wrote to the Tribunal again on 3rd March 2009 stating that the complainants wished to continue with their case and she requested that the hearing be rescheduled.
4.5 Given the complainants’ letters and the fact that they have requested that their case be rescheduled, on balance I am not satisfied they have ceased to pursue their complaints. Therefore, I find I cannot dismiss the complaints under section 38 of the Acts as it does not appear to me that they have ceased to pursue their reference to the Tribunal.
4.6 I have also considered the respondents request to dismiss the case under section 22 of the Act. I find that the complaints have not been made in bad faith and also I find that the complaints are not frivolous, vexatious, or misconceived nor do they relate to a trivial matter. I cannot therefore dismiss the case under section 22 of the Acts. The full reasons for my decision in this matter are set out in the case of John & Angela Mongans v Clare County Council DEC-S2008-039.
4.7 The respondent’s solicitor submitted that the complainants’ representative handling of the case amounted to obstruction of the investigation contrary to Section 37 of the Acts and they requested that an award of expenses should be made in the respondent’s favour in accordance with section 37A of the Acts. They also submitted that the complainants’ failure to attend the hearing amounted to obstruction and they requested that an award of expenses in the amount of €5,000 under section 37A of the Acts in favour of the respondent.
4.8 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.”
4.9 I am not satisfied that the respondent has provided any evidence to support the contention that the complainants or their representative obstructed or impeded this investigation. The complainants’ failure to attend the hearing, in my opinion, did not amount obstruction nor was it an attempt by them to impede my investigation. While I have found above that it was unreasonable for them not to attend, I made this finding in the context of their failure to provide satisfactory supporting documentation in relation to the reasons put forward by them for not attending, but this does amount to obstructing or impeding my investigation.
The complainants’ representative attended the hearing and, in my opinion, she did not impede or obstruct the investigation. I find therefore, that an award of expenses against either the complainants or their representative under section 37A is not warranted.
5. Decision
On the basis of the foregoing at paragraphs 4.1 to 4.6, I find that the complainants have not established a prima facie case of discrimination. I conclude the investigation and I find under section 25(4) of the Equal Status Acts 2000-2004 against the complainants.
_________________
Marian Duffy
Equality Officer
13th May 2009