DEC-S2017-047

Equal Status Acts

DECISION NO: DEC-S2017-047

Patrick and Bernadette McDonagh and 19 others.

(Represented by Heather Rosen)

V

Clare County Council.

(Represented by Michael Houlihan and Partners Solicitors)

File Nos. Es/2006/0148

Date of Issue: 4th December 2017

1 Delegation under the Equal Status Acts 2000 to 2004

1.1 Patrick and Bernadette McDonagh and 19 others (the complainants) referred claims to the Director of the Equality Tribunal under the Equal Status Acts (hereinafter referred to as “the Acts”) on the 10th November 2005. These were among some 1,300 complaints referred to the Equality Tribunal concerning some 450 individuals from 96 families against the same Respondent all lodged by the same representative. Most of the complainants were heard by an Equality Officer between 2005 and June 2009 when leave to apply for judicial review was granted to the respondents. In the leave application, the respondents sought and were granted a stay preventing the continued investigation and hearing of the remaining complaints which included the above complainants. The judgement of the High Court issued in July 2011 [2011] IEHC 303. The judgement was subsequently appealed to the Supreme Court by the Respondents and was withdrawn in October 2016. On 6th December 2016, in accordance with her powers under section 75 of the Equal Status Acts, the Director General of the Workplace Relations Commission delegated the case to me, Peter Healy, an Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under section 25 of the Acts, on which date my investigation commenced. A hearing if this complaint was scheduled for the 16th of November 2017 as part of a series of 4 hearings of similar complaints by other complainants held on the 9th, 10th, 16th and 17th. The representative for the complainants made a series of objections to all of the hearings which were not accepted. The representative was informed repeatedly that the hearings would commence. None of the complainants attended their hearings. The respondent was in attendance.

1.2 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.

2 Background to the Complaint.

2.1 This case is one of a number of complaints referred to the Equality Tribunal during the period 2004-2006, on behalf of a large number of complainants, against the same respondents alleging discrimination on the Traveller community ground, in relation to housing, accommodation needs and related matters. Several complaint forms with a list of complainants attached were lodged with the Tribunal on behalf of each individual complainant. All the complainants have the same representative, Ms Heather Rosen. I commenced my investigation when the cases were assigned to me in December 2016. I have adopted the same procedure as used by the Equality Tribunal in relation to similar numbers of complaints in similar circumstances. I decided to associate the complaint forms by family groups so that each complainant family would have a separate hearing before the Adjudication Officer, as the same set of circumstances pertained to each family group. I also decided in the interest of the efficient management of the cases to arrange an initial call over. This approach has been addressed in Clare  County  Council v The Director of Equality Investigations and the Equality Tribunal v Mongan & Anors [2011] IEHC 303.

This call over was arranged for the 5th and 6th January 2017 and the WRC notified the Ms Rosen of these dates. The purpose of the call over was set out as in a letter to Ms Rosen on the 1st December 2016 as Follows

“I am concerned that due to the passage of time the complainants may no longer be interested in pursuing their complaints. However, it is my intention to give them an opportunity to do so and therefore I require them to be in attendance on 5 and 6 January to confirm only that they wish to pursue the complaints. I wish also to explain to the parties the parameters of my investigation and I will only be dealing with the specific complaints set out in the appendix; ie the complaints that were stayed by order of the Court. If further complaints were submitted at a later date by the complainants concerned, they will be dealt with at a later date. There may be other matters I can decide on the day regarding the running of the cases, the witnesses required and other issues you and the respondents may wish to bring to my attention.

As you are the representative on record it is important to note that it is your responsibility to notify the complainants directly of the call over. The Workplace Relations Commission does not notify complainants of dates where a representative is on record. If you are no longer representing any or all of the complainants, please provide me with their up to date contact details immediately and I will notify them directly. If I do not hear to the contrary, I will take it that you have notified all the complainants of the call over.

It is important to note that the Workplace Relations Commission does not grant adjournments of hearing date other than in exceptional circumstances and, while I will not be hearing the cases but calling over the cases, the same policy will apply. I refer you to Procedures in the Investigation and Adjudication of Employment and Equality Complaints (copy of which is enclosed) It states “A postponement of the hearing will be given in exceptional circumstances and only for substantial reasons. All requests must be made in writing as soon as possible to the WRC. The requesting party must give details of the reasons along with all relevant documentation.” Please note it is very important you tell the complainants that they need to attend in person on the days set out in this letter. If they do not attend and do not have a documented valid reason for their non-attendance, I can decide to dismiss the case under sections 22 or 25 of the Act. While I note it is seven years since the complaints were stayed it is my priority to ensure they are dealt with as quickly as possible while adhering to fair procedures.”

2.2 A relevant complainant attended the call over despite repeated written statements from Ms Rosen that it would not be possible for anyone to attend. I must point out that I wrote to Ms Rosen on the 9th January 2017 that further to my instructions on both days of the call over that all adjournments must be made in writing with supporting documentation as set out in the notice of the call over.

Ms Rosen has at all times objected to the fact of the call over process and has issued extensive uncalled for documentation objecting to every aspect of it. It is her position that she would not acknowledge the High Court ruling on appropriateness of the call over process and she made repeated statements at the hearing that it was “unlawful” and has refused to comply with many aspects of its administration.

Ms Rosens personal behaviour at the call over was unacceptable and almost unmanageable. Extreme patience and flexibility was required to conclude the call over and process the large number of objections.

2.3 Obstructing and Impeding the Investigation

A number of issues have arisen in relation to the conduct of these cases by the complainants’ representative, Ms Rosen. Following Ms Rosen’s response to the notification of the call over the WRC had to write to Ms Rosen stating the following,

“I am concerned that you state in your email you will not be contacting those whom you purport to represent until after the new year. I will write to all seventeen families to at the letter As you have stated in your correspondence you will not contact them until after the new year I would ask that as a matter of urgency you immediately send any changes of address of any of the 17 families detailed in my letter.”

I therefore wrote to all of the parties directly. Further, Ms Rosen encouraged uninvited parties with complaints that had been dismissed some years ago to attend the call over. She repeatedly refused to follow any instructions from this adjudicator, on one occasion she was instructed to put away a video camera at least six times before she relented.

I have made it clear to Ms Rosen on the day of the call over that I will not accept or look at video interviews of the parties who have not turned up for the call over. Ms Rosen has refused to accept this.

In relation to the call over, Ms Rosen had four weeks to contact the complainants and inform them of a meeting date. Given the number of complainants who turned up in relation to other complaints following the direct intervention of the WRC (some 24 individuals including the complainant) I am satisfied that this was a reasonable approach. At the conclusion of the call over Ms Rosen was informed that the hearing the complainants case would be scheduled later in 2017.

On the 6th October 2017, official notification was sent to Ms Rosen advising the hearing of the above complaints would proceed on the 16th November 2017. The first in a series of written objections was received from Ms Rosen on the 11 October 2017, it was a hand written fax and parts of it were not legible. It alluded to a medical appointment for Ms Rosen that had no connection with the hearing date and no relevant medical certs were provided. Ms Rosen was informed in writing that the hearing would proceed. A series of further objections from Ms Rosen ensued stating that it would be impossible for the hearing to proceed.

2.4 On the day of the hearing, in full knowledge that the hearing was to commence and that this Adjudicator and the respondent would be in attendance, Ms Rosen sent an E-Mail to the Respondents solicitors telling them that “there is no need to attend” the hearing of this complaint. I find that this final act of obstruction is completely inexcusable and indicative of the attitude of Ms Rosen.

3. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER

3.1 This complaint is one of a series of connected complaints which have a long legal history as outlined above. A special procedure was put in place in February of 2017 simply to establish if the complainants wished to proceed with their complaints. The complainant’s representative did everything possible to prevent this procedure from going ahead. The administrative burden placed on the WRC in dealing with the endless groundless objections go well beyond the flexibility and time allocated to deal with other complaints. Despite repeated claims from Ms Rosen that it would be impossible for the complainants to attend the call over, they did. I must note that other members of the Travelling community present, thanked this Adjudicator for the convenience of the location.

3.2 The procedure to obtain an adjournment of a hearing on medical grounds is well known to Ms Rosen. I myself explained this to Ms Rosen at the call over, but she refuses to accept this procedure or any direction from myself. I am satisfied that Ms Rosen has deliberately chosen to ignore this simple procedure, and instead has bombarded the WRC with unwanted miscellaneous medical literature that allude to various medical complaints she has had, unconnected with the date of the hearing. Ms Rosen wrote to the WRC stating that she was on a bus travelling to Dublin on the day of the first hearing on the 9th November. It is clear that she was well enough to attend the hearings.

3.3 On the 3rd of November Ms Rosen sent a letter to the “Director General of the WRC (clearly written by Ms Rosen but purporting to be signed by one member of the extended family) seeking a postponement on the basis of reasons already submitted. Ms Rosen has been advised at the call over that I am a statutorily independent Adjudication officer and that direct requests sent to the Director in such circumstances will be interpreted as further obstruction. I take this letter as evidence that the complainants were well aware of the hearing date and the fact that all previous adjournment requests had been declined.

3.4 In the lead up to the hearing of these complaints Ms Rosen was written to on five occasions confirming that the hearing was proceeding. Each affirmation of the hearing resulted in a request from Ms Rosen for a postponement. On the 8th November Ms Rosen sent an E-mail to the WRC advising that “I am trying to reach the high court today to ask for an Injunction of the Hearings of the next few weeks”. A response was issued to Ms Rosen stating that all hearings would proceed and failure for complainants to attend without good reason may well result in their claims being dismissed for non-pursuit. The complainants did not attend. I sincerely believe that there is nothing that can be done to get the complainants to attend the hearing of their complaints. The respondent has acted in good faith and attended both the call over and the hearing.

3.5 Ms Rosen also objected to the hearing of the complaint on the basis that she has not had enough time to prepare. This argument is not credible. Ignoring for a moment the long history of the case before my own involvement, at the call over in January 2017, Ms Rosen was informed that the complaint would be scheduled for hearing later in the year, probably July or August. It transpired that the hearing was scheduled for November. Ms Rosen has had at least eight months advance notification of the hearing and five weeks notification of the exact date. This is far more then would be given to any other complainant.

3.6 Despite the lack of cooperation from Ms Rosen, careful consideration had been given to all of the reasons she put forward for an adjournment. None of them come close to the exceptional circumstances required to grant such an adjournment.

4. Conclusions of the Equality Officer

4.1 I am satisfied that the complainants were on notice that a hearing of their case was scheduled for the 9th November 2017. I am satisfied that the WRC has gone far beyond what is normally expected to provide for the complainant’s attendance at a hearing of their complaints.

4.2 Relevant provisions of section 38 of the Equal Status Acts 2000 to 2015

Section 38 provides that -

(1) "Where a case is referred to the Director and, at any time after the expiry of one year from the date of the reference, it appears to the Director that the complainant has not pursued, or has ceased to pursue, the reference, the Director may dismiss the reference.

(2) As soon as practicable after dismissing a reference, the Director shall give notice in writing of that fact to the complainant and the respondent.

(3) Where a reference is dismissed under this section, no further proceedings may be taken in relation to that reference....”

4.3 For the reasons outlined above I find that Ms. Rosen’s behaviour and actions have obstructed and impeded my investigation and an award of expenses to the respondent is warranted. In considering section 37A(2) of the Acts I note the approach applied in previous Equality Tribunal decisions specifically DEC-S2008-067. I cannot make an award of expenses in respect of a representative attending the investigation. I am of the view that “the attendance at the investigation” would exclude giving expenses to a representative attending a hearing but other expenses incurred by the respondents, other than legal expenses, such as pre-hearing preparatory work is not excluded. This could include the costs of extra clerical assistance required by the respondent to carry out tasks in preparation for the hearings. I note that there were four officials from Clare County Council present at the first hearing on the 9th ( to give evidence in relation to the all of the connected complaints) and I am satisfied that they would qualify under the Act for expenses in connection with the investigation and attendance at the hearings. Due to the continuing obstruction by Ms Rosen all four officials were advised to be on standby to attend further hearings. Because the officials did not incur travelling expenses, I am not making an award under this heading. I can make an award in relation to other expenses which could include time spent by the officials in collating the material for the case, salaries paid by the respondent in respect of their time spent preparing for the hearing or carrying out work in connection with the investigation, meals, telephone calls, photocopying and other offices expenses incurred in connection with the investigation. Taking into account the complete absence of co-operation from Ms Rosen and the significant time and effort committed by the respondent, I must conclude that an appropriate award of expenses against Ms. Rosen is warranted. Having regard to the factors above which I have taken into account in relation to expenses, I have concluded that an award of €500 expenses to the respondents in this case would be appropriate in the circumstances.

Decision

5.1 More than one year expired from the referral of the complaint. In relation to this complaint the WRC and this Adjudicator have exercised extraordinary efforts to get the complainants to attend the call over and hearing of their complaints. At every step the complainant’s representative has obstructed those efforts. I am of the opinion that there is nothing that can be done to get the complainant to attend any further proceedings relevant to the complainants. Therefore, the complainants have ceased to pursue their claims I hereby exercise the power under section 38 to dismiss these complaints.

5.2 I order Ms Heather Rosen, in accordance with section 37a of the Equal Status Acts, to pay Clare County Council the sum of €500 (five hundred euro) for obstructing and impeding this investigation.

______________

Peter Healy

Adjudication Officer

4th December 2017