THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC – E2013-136
PARTIES
Krzysztof Kotynski
-V-
I. Maloney & Sons Ltd t/a Centra Supermarket
(represented by Charlotte Simpson B.L. instructed by Liddy Scollan Solicitors,)
File Reference: EE/2011/562
Date of Issue: 1st November 2013
Keywords: Employment Equality Acts 1998-2011, Section 6(1) - less favourable treatment, - Section 6(2)(a)(b)(h) – Gender, Civil Status, Race, Section 8- conditions of employment, Section 14 – harassment, Section 19 and 29 – equal pay, failure to attend hearing - no evidence to support case.
1. Dispute
1.1 This dispute concerns a claim by a complainant that he was discriminated against by the above named respondent on the gender, marital status (now civil status) and race grounds, in terms of Sections 6(1), and 6(2)(a)(b) and (h) of the Employment Equality Acts 1998-2011 and contrary to section 8 in relation to his conditions of employment and Sections 19 and 29 in relation to equal pay. He also alleges harassment contrary to section 14A.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 28th July 2011 alleging that the respondent discriminated against him contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 the Director delegated the case on the 27th September, 2013 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 VII of those Acts This is the date I commenced my investigation. Written submissions were received from the complainant on the 23rd February 2012 and from the respondent on 10th May 2012. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on the 24th October, 2012.
3. Summary of the Case
3.1 On the 9th of August 2013, the Tribunal notified both parties by registered and ordinary post that a hearing of the above complaint would take place on the 24th of October 2013 in the Clanree Hotel, Letterkenny. I sat to hear the case as notified. The respondent together with his solicitor attended the hearing as scheduled but the complainant did not turn up. The respondent’s solicitor, prior to the hearing, notified the Tribunal that the complainant referred other complaints under employment legislation and had not attended these hearings. The registered post delivery was checked and it was confirmed that the letter notifying the date of the hearing was delivered to the complainant’s representative.
4. Conclusions of the Equality Officer
4.1 I am satisfied the complainant’s representative was properly notified that a hearing in his case was scheduled for the 24th of October 2013 and it is matter for the representative to inform the complainant of the hearing. I find therefore, that the complainant's failure to attend the Tribunal hearing was unreasonable in the circumstances and I find against the complainant under Section 79 of the Acts.
The respondent’s counsel asked me to strike out the case under Section 102 for non pursuit because of the complainant’s failure to correspond with the Tribunal. For the following reasons, I have rejected the respondent’s application under section 102: The Tribunal sat to hear the case and I am not satisfied that there is enough evidence before me to determine that the complainant has ceased to pursue his complaints. Furthermore, the complainant has not been notified by the Tribunal that it was proposing to strike out his case under Section 102. It is the practice of the Tribunal to serve such a notification on the complainant and the complainant is then given an appropriate opportunity to respond.
5. Decision
5.1 In the light of the foregoing, and in accordance with Section 79(6) of the Act, I issue the following decision:
As part of my investigation under Section 79 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 obligations under Section 79 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.
_______________________
Marian Duffy
Equality Officer
1st November 2013