THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC-E2013-125
PARTIES
Mr Siavash Sefidvash (represented by Gandon Solicitors)
and
SeaChange International (Ireland) Ltd (represented by A&L Goodbody Solicitors)
File References: EE/2008/837
Date of Issue: 1st October 2013
1. Claim
1.1. The case concerns a claim by Mr Siavash Sefidvash that SeaChange International (Ireland) Ltd victimised him and victimisatorily dismissed him contrary to Section 74(2) of the Employment Equality Acts 1998 to 2008.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 4 December 2008. The alleged unlawful conduct of the respondent was set out on the complaint form. A submission was received from the respondent on 4 September 2009. On 17 June 2011, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. The complainant had also complained of discrimination, which complaint I dismissed on the ground of misconceived jurisdiction on 16 September 2011. (ND-2011-035). The complainant appealed that dismissal to the Labour Court. I understand that the complainant's appeal has been dismissed by that court. Therefore, and as required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of his complaint of victimisation on 20 September 2013. The hearing was set to start at 11am. The complainant's solicitor had been made aware by myself that the respondent had witnesses who would be travelling to the hearing.
1.3. On the morning of the hearing, at 10:15am, the complainant's representative telephoned me to advise that his client would not be in attendance. When questioned, he advised that no sudden emergency had occurred that prevented his client from attending, and accepted that his client would lose his case under those circumstances for lack of prosecution. I attempted to reach the respondent's representative by telephone to advise her, but she had already left her office premises to go to the Tribunal. Accordingly, the respondent was in attendance for the hearing. I opened the hearing fifteen minutes after the time it was set to start, that is, at 11:15am, and noted the non-appearance of the complainant accordingly.
1.4. The representative of the respondent made an application for the award of expenses pursuant to my power under S. 99A of the Acts. I requested that she submit a brief written statement and photocopies of the relevant travel expenses for her witness. These were received on 24 September 2013.
1.5. The respondent's representative noted that her client had expended considerable time and expense in defending the complaint, whereas the complainant, according to the Tribunal's database of decisions, has failed to appear and make his case not only in the above matter, but in two other complaints as well [DEC-E2011-145 and DEC-S2011-029]. It was submitted that in the light of the complainant's pattern of wasting the Tribunal's time and putting the respondents to his various claims to considerable inconvenience, it would be only fair to make an order for re-imbursement of travel costs to the respondent's witness, who had travelled from Co. Mayo to be in attendance for the hearing.
2. Issue of Expenses
2.1. Section 99A of the Employment Equality Acts 1998-2011, provides that:
(1) Without prejudice to section 99, the Labour Court or the Director may, if of the opinion that a person is obstructing or impeding an investigation or appeal under this Act, order that the person pay another person a specified amount in respect of travelling or other expenses reasonably incurred by that other person in connection with the investigation or appeal.
(2) Notwithstanding subsection (1), expenses shall not be payable in respect of the attendance at the investigation or appeal of any person representing a complainant or respondent.
(3) The amount of any expenses ordered to be paid under this section may be recovered as a simple contract debt.
2.2. The hearing of any complaint is at the heart of an investigation by an Equality Officer. Its purpose is to give the complainant an opportunity to present his case and any evidence he may have to support his allegations. Therefore every effort is made by the Tribunal to accommodate complainants who may experience difficulties about their attendance at short notice, to enable the hearing to go ahead, mostly by adjournment to a later time on the same day or to another day. However, any such emergency must be notified to the Tribunal at the complainant's earliest convenience and be appropriately documented once such documents are to hand. In this context, for a complainant to have his representative simply notify the Tribunal of his non-attendance 45 minutes before the hearing is to start, without reasons except to say they do not constitute an emergency, must rate as an obstruction of the investigation within the meaning of the Acts.
2.3. Accordingly, I find that the complainant's behaviour obstructed and impeded my investigation and that an award of expenses to the respondent is warranted. The respondent has submitted that vouched travelling expenses of €62.10 were incurred in relation to its witness, and I am therefore making an award of that amount under S. 99A of the Acts.
3. Decision
3.1. In the light of the foregoing, and in accordance with Section 79(6) of the Employment Equality Acts 1998 to 2008, I issue the following decision on the complainant's complaint of victimisation and victimisatory dismissal. As part of my investigation under Section 79 of the Act, I am obliged to hold a hearing into the matter. I find that the complainant's failure to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 79 has ceased. As no evidence was given at the hearing in support of the allegation of victimisation and victimisatory dismissal I conclude the investigation of this complaint and find against the complainant.
3.2. In accordance with S. 99A of the Employment Equality Acts, I also order the complainant, Mr Siavash Sefidvash, to pay SeaChange International Ireland Ltd. the total sum of €62.10 (Sixty-two euro and ten cent) expenses.
______________________
Stephen Bonnlander
Equality Officer
1 October 2013