The Equality Tribunal
Employment Equality Acts 2000 to 2011
DECISION NO: DEC-E2013-102
Dr. James McKernan
v
St. Patrick's College
(John P. Carrigan & Co. Solicitors)
Date of Issue: 5 September 2013
File No. EE/2010/786
Keywords: Employment Equality Acts - discriminatory treatment - gender - age - access to employment - prima facie case - failure to attend an oral hearing
1. Dispute and delegation
1.1 This dispute concerns a claim by Dr. James McKernan (hereafter "the complainant") that he was discriminated against on the grounds of his gender and age in relation to access to the position of Head of Education with St. Patrick's College (hereafter "the respondent"). The complainant alleges that the respondent treated him less favourably on grounds of gender and age, in that, he was the most suitable person for the position but a younger less qualified female was successful in her application for the post.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 26 October 2010 under the Employment Equality Acts. On 16 January 2013, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh- 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 which date my investigation commenced. The case was originally proposed for a scheduled date in March 2013. The complainant stated that he was resident in the U.S. and could only attend for a hearing during summer recess from college in July/August. His request was facilitated and the hearing was scheduled for Tuesday 9 July 2013.
2. Hearing
2.1 On 8th July at around 2.00 pm, I was advised by a member of staff that the complainant had contacted the office by telephone stating that he was in an accident and could not attend the hearing on the following day, Tuesday 9th July. The complainant was requested to provide medical documentation in this regard. Later in the day, after many efforts by the secretariat to make contact with him by telephone, a staff member managed to get through to the complainant and he stated that the reason he could not attend the hearing was because he had gout. He was requested to furnish a medical report in this regard, however, no report was forthcoming. Although medical documentation is required prior to granting an adjournment, on this occasion I made all efforts to accommodate his request and accordingly, I granted his adjournment request on the basis that he was sending in medical documentary to substantiate his reason for not being medically fit to attend the hearing. However, to date I have received no such documentation.
2.2 The complainant then requested that the hearing be re-scheduled for a date within 3 weeks or so following the 9th July date of hearing. A staff member in Secretariat division made efforts to reconvene the hearing over the following weeks. However, many of the respondent's main witnesses were unavailable due to holiday commitments and travel arrangements and therefore the hearing was scheduled for the first available date thereafter which was Tuesday 3rd September 2013. Notification of the re-scheduled hearing was given to him by telephone and sent by letter dated 8th July to his e-mail address. This correspondence was also forwarded to the address the complainant gave in Waterville, Co. Kerry. In the letter the complainant was advised that no further adjournments would be granted and that the date of the hearing of 3rd September was peremptory against him. The complainant had requested the Tribunal to arrange a satellite Skype type connection in order to hear his case, however the respondent's solicitor strenuously objected to same on the basis that this case was unsuitable for same and requested that the complainant be present in person to present his case. Having taken into account the request and the response to same, I was of the view that in these circumstances, it was inappropriate. The Tribunal has made every effort to hear the complainant's case. The complainant contacted this office less than 24 hours prior to the 9th July hearing to state that he could not attend, however to date I have received no medical documentary evidence to substantiate his reasons for non-attendance. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 3rd September, 2013. The complainant did not attend the hearing and the Tribunal has not been informed of any exceptional circumstances excusing his failure to attend. I am satisfied that section 85A clearly places an onus on the complainant to establish a prima facie case of discrimination before an investigation can proceed.
3. Decision
3.1. In accordance with Section 79(6) of the Employment Equality Acts 1998-2008, 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 obligation 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.
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Valerie Murtagh
Equality Officer
5 September 2013