The Equality Tribunal
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Dublin2.
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Equal Status Acts 2000-2008
Decision
DEC-S2009- 032
Martin & Heleena Mongans
(represented by Heather Rosen)
v.
Clare County Council
(represented by Michael Houlihan & Partners Solicitors)
File Reference: ES/2004/0356-357,
ES/2004/538-539
Date of Issue: 14th May 2009
Decision
DEC-S2009- 032
Martin & Heleena Mongans
(represented by Heather Rosen)
v.
Clare County Council
(represented by Michael Houlihan & Partners Solicitors)
Key Words
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 - failure to pursue complaint, Section 38.
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, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 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 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 May 2006, 15th January 2007, 26th & 27th February 2007. The final submission was received on 6th May 2009.
Dispute
1.1 The dispute concerns claims by Martin and Heleena 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 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 2004 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 by initiated prosecutions against them and serving notices on them to move from sites/open spaces where they had parked.
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 two referral forms with the Equality Tribunal during the 2004 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 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, 2000-2004.
3. Summary of the Case
3.1 I held hearings in this case in accordance with Section 25(1) of the Acts in January and February 2007 and the above named complainants attended and gave evidence at these hearings. The case was scheduled for a further hearing on the 2nd December 2008 but was adjourned at the request of the respondent because of the unavailability of the respondent’s witnesses. The case was then rescheduled for 5th February 2009. The complainants’ representative requested an adjournment and it was not granted. The complainants did not attend. Their representative said that they had some personal difficulties and that she was unable to notify Mr. Mongans about the hearing.
3.2 I decided to rescheduled the hearing because of the complainants personal difficulties and because I was not satisfied that the complainants had been notified of the hearing. The case was listed on 24th April 2009. Their representative applied for an adjournment which was refused. The complainants failed to attend the scheduled hearing. Their representative said that Ms. Mongans was in Cork with her family recovering from personal family circumstances and that Mr. Mongans was in England.
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 Ms. Mongans the previous day. He said that she was in Clare and that she told him that she knew about the hearing but she was not going to attend.
4 Conclusions of the Equality Officer
4.1 I am satisfied that the complainants’ representative was aware that the Tribunal hearing was scheduled to take place on 24th April 2009. It is the responsibility of the representative to inform their clients of the date of the hearing. Once a representative is notified of the hearing the Tribunal deems that the complainants are also on notice of the hearing and on notice of the requirement to attend. The complainants did not attend the hearing and their representative requested an adjournment. An adjournment had already been granted following the failure of the complainants to attend the hearing in February 2009. I note that their representative put forward the same reasons for an adjournment on this occasion. The Tribunal only grants adjournments in exceptional circumstances supported by relevant documentation. 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.
4.2 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 complainants in this case gave evidence to the Tribunal over 2 days in February 2007, but they had not completed their evidence and neither had the respondent completed their evidence, nor had the solicitor for the respondent completed the cross examination of the complainants. The complainants failed to attend the scheduled hearing on the 24th April 2009 to complete their evidence. Therefore I 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. I concluded the investigation and I find against the complainants.
4.3 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. In a letter from their representative dated the 6th May 2009, she requested that the hearing of the case be deferred to allow them to recover from some personal family matters. The representative also stated that the complainant would write directly to the Tribunal about their case.
4.4 Given the letter from the complainants’ representative and the request to defer the hearing of the case to allow them to recover from personal matters, 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.
5. Decision
On the basis of the foregoing at paragraphs, I find that the complainants have not established a prima facie case of discrimination. I have concluded the investigation and I find under section 25(1) of the Equal Status Acts 2000-2004 against the complainants
_________________
Marian Duffy
Equality Officer
14th May 2009