DECISION NO: DEC-E/2013/038
PARTIES
BROPHY
(REPRESENTED BY IMPACT)
-V-
IRISH AVIATION AUTHORITY
(REPRESENTED BY A&L GOODBODY - SOLICITORS)
File No: EE/2010/874
Date of issue: 10 May, 2013
Headnotes: Employment Equality Acts 1998- 2008 - sections 6, 13 & 16 - disability - discriminatory treatment - regulatory body - reasonable accommodation
1. DISPUTE
This dispute involves a claim by Mr. Brian Brophy, (hereafter called "the complainant"), that (i) he was discriminated against by the Irish Aviation Authority (hereafter called "the respondent") on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998-2008 and contrary to section 13 of those Acts when it failed to certify him as suitable for appointment to the position of Flight Operations Manager with a company in the aviation sector (details supplied) and (ii) that the respondent failed to provide him with reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2008.
2. BACKGROUND
2.1 The complainant states that he has been a professional pilot since August, 1991 and has held a variety of posts in the aviation sector, in both operational and managerial capacities, since that time. He adds that in April, 2009 he experienced a mild cerebral haemorrhage as a consequence of which his pilot's medical certificate (without which he cannot legally fly) was revoked. The complainant submits that this amounts to a disability in terms of section 2 of the Employment Equality Acts, 1998-2008. He states that in May, 2010 a company in the aviation sector (details supplied) nominated him for the role of its Flight Operations Manager to the respondent. The complainant states that the respondent refused to certify his suitability for this post and submit that this treatment amounts to discrimination of him on grounds of disability contrary to the Acts. In this regard he submits that the respondent is a body which falls within the purview of section 13(c) of those Acts. The respondent rejects the complainant's assertions in their entirety.
2.2 On 19 November, 2010, the complainant's legal representative at that time referred a complaint under the Employment Equality Acts, 1998 - 2008 to this Tribunal. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, 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 19 January, 2013 - the date it was delegated to me.
2.3 Submissions had been received from both parties and I wrote to the respective representatives on 1 February, 2013 advising them the complaint had been delegated to me and that I had scheduled it for Hearing at the Tribunal's Offices in Dublin on 27 March, 2007 commencing at 10:30am. This correspondence was sent by registered post. The Tribunal heard nothing further from the parties until 25 March, 2013 when it received a telephone call from a person in IMPACT Trade Union advising that the official who was originally representing the complainant was ill and that the complainant would be accompanied by another official (Mr. Landers) at the Hearing on 27 March, 2013. As IMPACT was not on record for the complainant the Tribunal immediately contacted the firm of solicitors on record (by telephone) seeking clarification on the matter. The solicitors involved advised the Tribunal it was no longer instructed in the matter and that he was now represented by Mr. Landers (IMPACT). This position was subsequently confirmed in writing by the solicitor.
2.4 On the afternoon of 26 March, 2013 the Tribunal received an e-mail on behalf of Mr. Landers advising that the complainant was out of the country and would not be available to attend the Hearing the next day. The e-mail requested an adjournment in the circumstances. The Tribunal responded immediately advising that the information contained in the e-mail was insufficient to enable the Equality Officer make a decision on the adjournment request. The attention of the complainant's representative was drawn to the contents of the Tribunal's letter of 1 February, 2013 and it was requested to revert to the Tribunal setting out more particular details of the complainant's travel arrangements and to furnish all relevant supporting documentation. The Tribunal advised that this information/documentation should be submitted by 6pm that evening to enable consideration of the application and that in the event this deadline was not complied with the Hearing scheduled for the next day would proceed. The complainant's representative did not comply with the deadline indicated.
2.5 The respondent and its representatives attended the hearing at the designated time on 27 March, 2013. The complainant did not attend but Mr. Landers was present. He apologised for the complainant's non-attendance and made all efforts to apprise the Tribunal of why the complainant was not present. He formally requested that the matter be adjourned in the circumstances. Mr. Walsh, the respondent's legal representative, objected to the application. After some consideration I decided to afford Mr. Landers until 5pm the following day (28 March, 2013) to consult with the complainant and furnish the full reasons for the application and to provide all relevant documentary evidence in support of same. Mr. Landers complied with this deadline and the material received was copied to the respondent's representative for comment. This response was received on 4 April, 2013. A summary of each party's arguments, both at the Hearing and in their respective written comments are set out in the subsequent sections of this Decision.
3. SUMMARY OF COMPLAINANT'S ARGUMENTS IN RESPECT OF ADJOURNMENT
3.1 On the day of the Hearing Mr. Landers stated that he had only taken on the case on Monday 25 March, 2013 as a colleague had been handling it prior to then. He added that he only became aware the complainant was in Holland on business on 26 March, 2013 and he immediately contacted the Tribunal seeking an adjournment. Mr. Landers stated was unable to furnish any details of when the complainant's trip abroad had been arranged. In response to a question from the Equality Officer Mr. Landers stated that the complainant "was unable to return to Ireland due to work commitments" and "he [the complainant] did not think he had to attend the Hearing". Mr. Landers added that the solicitor on record was involved in representing the complainant from the outset and he speculated that there was a breakdown in communication between all concerned.
3.2 Mr. Landers filed a submission, as requested, on 28 March, 2013. He states that the complainant was out of the country on the date of the Hearing for business reasons and furnished copies of the complainant's boarding passes in this regard. He adds that the complainant departed Dublin for Amsterdam on the afternoon of 25 March, 2013 and did not return until the evening of 27 March, 2013. Mr. Landers states that the complainant's presence in Amsterdam was required to deliver a training course on foot of a contract he has with a particular organisation (details supplied) and that the arrangements for the training course were entered into some weeks ago. He further states that the complainant was not aware of the Hearing scheduled for 27 March, 2013. He adds that this arose due to a misunderstanding in IMPACT following transfer of the file to IMPACT from the solicitor previously on record. Mr. Landers confirmed that the solicitor in question received notification of the Hearing from the Tribunal and passed this on to IMPACT without delay. He states that IMPACT incorrectly believed that the solicitor in question had sent a copy of this notification to the complainant and consequently it did not do so. Mr. Landers states that this oversight only came to his attention when he made contact with the complainant on 26 March, 2013, when he immediately sought an adjournment.
4. SUMMARY OF RESPONDENT'S ARGUMENTS IN RESPECT OF ADJOURNMENT
4.1 The respondent opposes the application for an adjournment. Its representative states that the e-mail of 26 March, 2013 makes no suggestion the complainant was not aware of the Hearing arrangements but instead makes a general statement that the complainant is unable to attend the Hearing because he is out of the country. The respondent's representative notes that at the Hearing on 27 March, 2013 the complainant's representative again made no express suggestion that the complainant did not receive notification of the Hearing rather Mr. Landers said the complainant did not believe he needed to attend the Hearing. The respondent's representative states that the first occasion it is suggested the complainant did not receive notification of the Hearing was in the correspondence of 28 March, 2013. It is submitted on behalf of the respondent that there is inconsistency in the reasons advanced on behalf of the respondent.
4.2 The respondent's representative further notes that the complainant has not furnished any personal written explanation for his absence nor has there been any similar documentation from the solicitor involved. It states that the Tribunal notified the nominated representative on record at that time of the Hearing arrangements and this should be considered sufficient to consider the complainant put on notice. In light of the foregoing it is submitted on behalf of the respondent that the complainant has failed to establish any exceptional circumstances which would justify the granting of an adjournment, especially at such short notice to the Hearing.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the complainant's failure to attend the Hearing is reasonable and my obligations under section 79(1) of the Employment Equality Acts, 1998-2008 remain and in those circumstances should he be granted an adjournment of the Hearing scheduled for 27 March, 2013 and the matter be reconvened at some future date. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 It is the standard practice in the Tribunal that all correspondence in respect of a complaint is addressed to a representative once the Tribunal has been advised of same. It does not simultaneously correspond direct with the complainant or respondent in the matter. My letter of 1 February, 2013 was addressed to the firm of solicitors on record for the complainant at that time. This letter, inter alia, informed the complainant's representative of the Hearing arrangements for 27 March, 2013. It was sent by registered post and I am satisfied that it was received by the solicitors in question on 5 February, 2013. The Tribunal received a phone call from a colleague of Mr. Landers (IMPACT) on 25 March, 2013. This phone call was received just after 10am and advised the Tribunal that Mr. Landers would accompany the complainant as his representative at the Hearing on 27 March, 2013. This was the first occasion the Tribunal was aware there was a possible change to the complainant's representative and it contacted the solicitor on record at the referral of the complaint seeking clarification on this matter. The solicitor in question confirmed it was no longer acting for the complainant by faxed letter received in the afternoon of 25 March, 2013. Moreover, Mr. Landers confirmed that the solicitor in question passed on my letter of 1 February, 2013 to IMPACT without delay. In light of the foregoing I am satisfied that the complainant's representative, whether it was the firm of solicitors originally on record or IMPACT, was on notice in adequate time that the Hearing was scheduled for 27 March, 2013.
5.3 In late afternoon on 26 March, 2013 the same IMPACT official who had telephoned the previous day e-mailed the Tribunal (on behalf of Mr. Landers) seeking an adjournment of the Hearing because the complainant was out of the country. This e-mail gave no further details for the request. The Tribunal replied immediately (by e-mail) making reference to my letter of 1 February, 2013 to the solicitors, in particular the sentence therein that "adjournments are granted only in exceptional circumstances and applications for same must be submitted, in writing, at the earliest possible date setting out the reasons for the request and be accompanied by the relevant supporting documentation" and requested IMPACT to furnish these details/documentation by close of business so that the Equality Officer could properly consider the application. The Tribunal received no response by the deadline. Indeed despite three requests for this information/documentation - my letter of 1 February, 2013, the Tribunal's e-mail of 26 March, 2013 and my e-mail of 27 March, 2013 (following confirmation of the requirements at the Hearing) - it was never furnished to the Tribunal, although Mr. Landers attended at the Hearing on 27 March, 2013 to personally advance the application.
5.4 Late or last minute requests for adjournments of Hearings cause considerable disruption to the Tribunal and unnecessary expense to all involved. Therefore it is the practice of the Tribunal only to grant adjournments in exceptional circumstances. In doing so the Tribunal has adopted the approach that once notification of the Hearing issues to the parties the closer it gets to the date of Hearing the reasons advanced for such applications must be something urgent, unexpected or unforeseen. In the instant case the Tribunal gave the complainant's representative almost eight weeks' notice of the Hearing. The application was received the day before the Hearing. It is clear that Mr. Landers was in contact with the complainant on 26 March, 2013. He was advised by the Tribunal of what was required to support the application by e-mail later that same day. Yet on the morning of the Hearing he never offered the explanation that the complainant was unaware of the Hearing. Rather he stated that the complainant "did not think he had to attend the Hearing". I find this omission inexplicable in the circumstances. If the complainant was not on notice of the Hearing as alleged one might expect that this would be to the forefront of any explanation offered to the Tribunal for his non-attendance. Having carefully considered this issue I find, on balance, that the complainant was aware that the Hearing was scheduled for 27 March, 2013 and chose not to attend.
5.5 It is clear that the complainant was in Holland from 25 March, 2013 to 27 March, 2013. It is asserted on behalf of the complainant that this was for business purposes and a contract between the complainant and a particular organisation (details supplied) for the delivery of training was furnished to the Tribunal. I have carefully examined this documentation and it makes no reference to the dates on which the complainant was required to deliver training on foot of it. The complainant offered no other evidence which would indicate when his travel arrangements in respect of the trip in question were made other than Mr. Lander's comment that "they were entered into some weeks ago". I am therefore not satisfied that there were urgent, unexpected or unforeseen reasons which explain the complainant's absence from the Hearing.
5.6 Having carefully considered the evidence adduced by the parties I find that the complainant's failure to attend the Hearing on 27 March, 2013 is unreasonable and that any obligation I have under section 79(1) of the Acts has ceased.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998 - 2011 I issue the following decision. I find that the complainant's failure to attend the Hearing on 27 March, 2013 as required is unreasonable and that any obligation I have under section 79(1) of the Acts has ceased. As no evidence was presented at the Hearing in support of the allegation of discrimination I conclude the investigation and find against the complainant.
_______________________________________
Vivian Jackson
Equality Officer
10 May, 2013