THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS, 2000-2008
Decision No. DEC-S2009-077
PARTIES
David Byrne
-v-
Ms A and
the National University of Ireland, Galway
(represented by Peter Ward, B.L.,
instructed by RBJ Glynn, solicitors)
File Reference: ES/2008/0057
Date of Issue: 6 November 2009
Key words
Equal Status Acts - Section 3(2)(a), Gender ground - Section 3(2)(j), Victimisation ground - failure to attend hearing -no prima facie case
1. Delegation under the relevant legislation
1.1. On 29th April, 2008, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. In accordance with her powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the case to me, Gary O'Doherty, 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. This delegation took place on 3rd April, 2009, on which day I commenced my investigation.
1.2. As required by Section 25(1) of the Equal Status Acts, and as part of my investigation, I held an oral hearing of the complaint in Galway on Thursday, 1st October, 2009.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that he was discriminated against by the respondents on the Gender ground, and that the respondents victimised him, contrary to the Equal Status Acts in terms of Sections 3(1)(a) and Sections 3(2)(a) and 3(2)(j) of the Equal Status Acts, and contrary to Section 7(2) of the Equal Status Acts.
3. Attendance at hearing
3.1. This case was assigned to me on 3rd April, 2009. Letters were issued to both parties to the complaint on Friday, 12th June, 2009, notifying them that the hearing of the complaint was scheduled to take place at 10:15 a.m. in Galway on 1st October, 2009. These letters were sent by registered post and I have received confirmation from An Post that the letter to the complainant was signed for by him.
3.2. When I proceeded to open the hearing at 10.15 a.m., the complainant was not in attendance and was not otherwise represented. The respondent was in attendance, along with its representatives and a number of witnesses. I therefore made contact with the Equality Tribunal Offices by telephone to check if any communication had been received from the complainant regarding his failure to attend the hearing. No such communication had been received.
3.3. After the Tribunal made two unsuccessful attempts to contact the complainant by way of the telephone number he had provided, and as I was satisfied that the complainant had been served with valid notification of the hearing, I reconvened the hearing at 10.50 a.m. I outlined that, as the complainant failed to attend the hearing in person, that I was bringing the hearing to a close and a decision would issue shortly. I closed the hearing at 10.55 a.m.
4. Issue of expenses
4.1. Section 37A of the Equal Status Act, 2000, as amended by the Equality Act, 2004, 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."
4.2. The complainant has been provided with every opportunity to present his case and, in that regard, was notified of the oral hearing of the matter over three months before the hearing took place. I am concerned that the respondents turned up with their legal representatives and also brought a number of witnesses to the hearing, thereby incurring significant legal and other costs and expenses. The complainant was aware of this. I am also conscious that there has been a significant cost to the public, in terms of the resources and expenses incurred by the Tribunal that were spent on this matter. The non-attendance of the complainant at the hearing, without any valid explanation, has meant that this time and these resources have been wasted. It is clear to me that, in all the circumstances of the present case, the non-attendance of the complainant amounted to a wilful abuse of the opportunity provided to him to present his case.
4.3. I find that the complainant's behaviour and actions obstructed and impeded my investigation and an award of expenses to the respondent is warranted. I cannot make an award in respect of expenses in connection with representatives. However, the second-named respondent has submitted, inter alia, that travelling expenses of €247 were incurred in relation to one of its witnesses, and I am therefore making an award of that amount under Section 37A of the Acts.
5. Decision
5.1. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
5.2. As part of my investigation under Section 25 of the Act, I am obliged to hold a hearing. I find that the complainant's 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 given at the hearing in support of the allegation of discrimination, I conclude the investigation and find against the complainant.
5.3. In accordance with Section 37A of the Equal Status Acts, I order the complainant, Mr. David Byrne, to pay to the National University of Ireland, Galway, a total sum of €247 (two hundred and forty-seven euro) expenses.
___________
Gary O'Doherty
Equality Officer
6 November 2009