THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
DECISION DEC-S2011-007
Parties
Sahr Yambasu and Francis Ehimare Brave
(represented by Molloy Seymour McLoughlin, Solicitors)
and
Abby Taxis
File Ref: ES/2008/0158
& ES/2008/192
Date of Issue: 15th February, 2011
Decision DEC-S2011-007
Keywords:
Equal Status Acts 2000-2008 - Discrimination, section 3(1) - Race ground, section 3(2)(h) - Disposal of goods and provision of services, section 5(1) - Redress in respect of prohibited conduct, section 21(2)
1. Delegation under the Equal Status Act 2000 to 2008
1.1 These complaints were referred to the Director of the Equality Tribunal under the Equal Status Acts on the 18th August 2008 and the 29th September 2008 respectively. In accordance with her powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the complaint to me, James Kelly, 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 on the 21st January 2010. The hearing of the cases took place on the 16th December 2010 and the final correspondence in relation to these cases was received on the 31st January 2011.
2. Dispute
2.1 This dispute concerns a complaint made by Mr. Sahr Yambasu and Mr. Francis Ehimare Brave, where they both claim that they were discriminated against by the respondent, Abby Taxis, on the Race ground in terms of sections 3(1) and 3(2)(h) and contrary to section 5(1) of the Equal Status Acts in relation to the respondent's refusal to allow them to buy shares into the taxi business known as Abby Taxis of 11A Eyre Street, Galway city.
3. In relation to claim brought by Mr. Sahr Yambasu
3.1. The complainant was not in attendance at the venue on the day of the hearing. The complainant's legal representative was present and confirmed that he did receive notice of the hearing. I allowed additional time for Mr. Yambasu to arrive but he did not. I contacted the Tribunal after the scheduled time for the hearing to establish whether Mr. Yambasu had made contact with it to offer an explanation for his non-attendance. However, I was informed that no contact was received.
3.3 Accordingly, I am satisfied that Mr. Yambasu was notified of the date and time of the hearing. I am also satisfied that no attempt was made to contact the Tribunal to inform it of any delay. Finally, I am satisfied that ample time was provided for him to present himself at the hearing to provide evidence.
4. In relation to claim brought by Mr. Francis Ehimare Brave - Preliminary issue
4.1 An issue of jurisdiction arose as to whether or not the complaint has complied with the provisions of Section 21(2) of the Acts in terms of the requirement to notify the respondent of the alleged act of discrimination.
4.2 Mr. Brave maintains that the date of the first discriminatory act was the 10th June 2008 and that the discrimination was ongoing. I note that the referral of the complaint to the Equality Tribunal was sent under cover of a letter from the complainant's solicitor on the 25th September 2008, received on the 29th September 2008. I note that on the referral form the complainant claims that he sent the notification to the respondent also on the 25th September 2008 and he indicates on the referral form that he had not received a reply to that notification. On the day of the hearing the complainant's solicitor suggested that the notification was sent within the prescribed time limit, which I noted is contrary to the date notified on the referral form. Following the hearing I requested documentary evidence to support the complainant's submission that the notification was sent to the respondent at an earlier date. However, no documentary evidence was furnished to establish same.
4.3 Section 21(2) of the Equal Status Acts puts the onus on the complainant to notify the respondent of the alleged act of discrimination and his/her intention to seek redress under the Acts. Therefore, to avail of the provisions of the Acts, a person who claims that prohibited conduct has been directed against him or her shall, within two months of the alleged incident of prohibited conduct, notify the respondent in writing of the nature of the alleged incident. I am satisfied in this case that the respondent was not notified within the two month time limit of the discriminatory act. I am satisfied that the date the notification was sent to the respondent was the same date as the referral of the complaint to the Equality Tribunal.
4.4 The complainant maintains that the discriminatory treatment he allegedly received is on-going. However, no evidence was provided by the complainant to support this argument. I note the evidence of the complainant where he claims that he did not attempt to engage with the respondent after the 10th June 2008 as he felt that it was futile. Accordingly, I am satisfied that the complaint relates to the date to the act of alleged discrimination of the 10th June 2008 and the complainant has failed to establish facts to support the argument of on-going discrimination.
4.5 Section 21(3) of the Equal Status Acts states that the Director may on application from the complainant extend the notification time period from two months to four months or indeed waive the notification requirement in exceptional circumstances. On referring the complaint to the Equality Tribunal the complainant's legal representative requested "an extension of time for the lodgement of the enclosed complaint on the grounds that the individual is from Africa and his command of the English language is not very good". I am satisfied that there is no question that the referral of this complaint to the Tribunal was made within the prescribed time limits set out in the Acts. The jurisdictional issue that I have to consider in this case is in relation to the time limits on the notification requirement under Section 21(2). Accordingly, I am not satisfied that the complainant has actually made an application to extend the time limits or indeed waive the notification requirement in this case. Notwithstanding the foregoing, I noted on the day of the hearing that Mr. Brave had a very good command of the English language. He informed me that he had been in Ireland since the year 2000 and had been a taxi driver for some eight years. I also note that the complainant is legally represented in this case. That said, I am satisfied that no exceptional circumstances have been brought to my attention for me to consider an application under Section 21(3) to extend or amend the notification requirements. Accordingly, I am satisfied that the complainant has failed to establish that he notified the respondent as required under Section 21(2) of the Acts.
5. Decision
5.1. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2008, I issue the following decision.
5.2 As part of my investigation under Section 25 of the Acts, I am obliged to hold a hearing. I find that the first named complainant, Mr. Sahr Yambasu, 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 I find that the second named complainant, Mr. Francis Ehimare Brave, failed to notify the respondent within the required time limits set out in Section 21(2) of Acts. Therefore, I have no jurisdiction to investigate this complaint.
______________________
James Kelly
Equality Officer
The Equality Tribunal
15th February 2011