DEC-S2019-007

EQUAL STATUS ACTS, 2000 to 2015

DECISION NO. DEC-S2019-007

PARTIES:

Caroline Sherlock, John Sherlock & their seven children

(represented by Ms. Heather Rosen)

-v-

The Minister for Employment Affairs and Social Protection

(represented by Mr. Mark Finan B.L. on the

instructions of the Chief State Solicitor)

File reference: et-157069-es-15 & others

(see Appendix for details)

 Date of issue: 7th May, 2019

1. Complaint

1.1       This complaint concerns a claim by the Complainants that they were discriminated against by the Respondent on the grounds of their race (ethnic origins) and membership of the Traveller community in terms of Sections 3(1)(a), 3(2)(h) and 3(2)(i) contrary to Section 5 of the Equal Status Acts in relation to the manner in which their application for an Exceptional Needs Payment for homelessness assistance was dealt with.

•       Background to the Claim

1.1      The instant complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts on the 22nd June, 2015. On the Complainant Referral Form the list of Complainants were named as Mr. John Sherlock, Ms. Caroline Sherlock and their seven children and the complaint was referred against four named officials who were employed by the Minister for Employment Affairs and Social Protection at the material time in question. The WRC, for administrative purposes, registered a single complaint in respect of each of the Complainants against each of the named officials (details of the complaint reference numbers allocated to the complaint are set out in the Appendix).

1.2   On the 27th March, 2017, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 the Director General delegated the case to me, Enda Murphy, an Equality Officer/Adjudication Officer, under Part III of the Equal Status Act, 2000 on which date my investigation commenced.

1.3       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 84(3) of the Workplace Relations Act, 2015.

2. Applications for Postponement of the Hearing

2.1       As required by Section 25(1) and as part of my investigation, I scheduled a hearing in relation to these complaints on the following dates namely: 20th September, 2018, 8th November, 2018 and 14th March, 2019. The Complainants sought and were granted postponements on medical grounds of the hearings that were scheduled to be held on each of these dates. Following the postponement of the hearing on 14th March, 2019, I wrote to the Complainant’s representative, Ms. Heather Rosen, and notified her that a further hearing date was being scheduled for 17th April, 2019. I informed Ms. Heather Rosen in this letter that it was noted the Complainants had already been granted a number of postponements of the hearing in relation to these complaints, and in the circumstances, no further applications for a postponement by them could be granted.

2.2       The Complainants’ representative, Ms. Rosen, sent a letter to the WRC’s Post Registration Unit dated 8th April, 2019 seeking a further postponement of the hearing which was scheduled for 17th April, 2019 on the basis that one of Mr. and Mrs. Sherlock’s children had an urgent dental appointment and that another of their children had a different appointment on that date. Ms. Rosen indicated in her letter that she would submit relevant documentation in support of the application for a postponement. However, Ms. Rosen failed to submit the relevant documentation in support of the application for a postponement and the WRC informed her on 15th April, 2019 that the application was refused and the hearing would proceed as scheduled on 17th April, 2019.

2.3       The WRC received further correspondence from Ms. Rosen by e-mail on 15th April, 2019 and 16th April, 2019 relating to the WRC’s decision to refuse her application for a postponement of the hearing. In this correspondence, Ms. Rosen sought a review of the decision to refuse the initial application for a postponement of the hearing and also cited an additional reason in support of the request, namely, that a key witness was unavailable to attend the hearing on 17th April, 2019. Following the completion of an independent review of the decision concerning the initial application, by a different and higher ranking official within the WRC, Ms. Rosen was informed on 16th April, 2019 that she had not provided the relevant supporting documentation underpinning the application and that there was no reason to disturb the original decision to refuse the application for a postponement. The WRC also informed Ms. Rosen that it had not been established from the documentation/submissions available that the named witness was a central witness to the proceedings. Ms. Rosen was informed that in the circumstances, the hearing would proceed as scheduled on 17th April, 2019.

4. Failure of the Complainants to Attend the Hearing on 17th April, 2019

4.1       The Complainants’ representative, Ms. Rosen, was in attendance at the hearing on 17th April, 2019 but the Complainants did not attend. The Respondent and its legal representatives were in attendance together with four witnesses and was ready to proceed with the hearing.

 4.2       Ms. Rosen indicated that it was not possible for Mr. and Mrs. Sherlock to be in attendance and she made a further application for a postponement of the hearing, on their behalf, on the following grounds:

• The Complainants, Ms. Caroline Sherlock and Mr. John Sherlock, could not attend the hearing as they had to bring their son to an important dental appointment on the morning of the hearing and their daughter had a separate appointment in the afternoon on that date.
• One of Mr. and Mrs. Sherlock’s children had suffered a medical episode a couple of nights prior to the hearing and required medical treatment in the Emergency Department of the local hospital. Ms. Rosen indicated that it had not been possible to obtain relevant supporting documentation within the required timeframes to confirm the medical condition in relation to the Complainants’ child.  
• A key witness for the Complainants was ill and unable to attend the hearing.      

 4.3  Ms. Rosen also submitted that the rules enforced by the WRC which require a person to submit relevant documentation from a medical practitioner in support of an application for a postponement are overly stringent when applied to members of the Traveller community. Ms. Rosen submitted that these rules should be dispensed with or modified in circumstances where a member of the Traveller community is seeking a postponement on medical grounds given the conditions of deprivation which apply to Travellers and the obvious difficulties encountered by them in terms of compliance with such requirements.

4.4       The Respondent strenuously opposed the application for a further postponement of the hearing and submitted that the Complainants had already been granted three postponements of the hearing in relation to this matter. The Respondent submitted that the WRC is obliged to apply fair procedures to both parties in relation to the manner in which the proceedings are conducted. In this regard, it was submitted that the Respondent had made arrangements for the attendance of legal representation and relevant witnesses (one of whom is retired) on all previous occasions that the complaint has been scheduled for hearing only for the matter to be postponed at short notice. The Respondent submitted that the Complainants have made scurrilous allegations against the named officials from the Department which will continue to hang over them until the complaints are eventually heard. It was submitted, however, at this point in time, it is unclear if the Complainants will ever be in a position to attend any rescheduled hearing. The Respondent submitted that the complaint should be struck out at this juncture for want of prosecution in light of the Complainants’ failure to attend the hearing.

5.     Application to proceed with the Hearing in the Complainants' Absence

5.1       Ms. Rosen also submitted that the hearing should be allowed to proceed in the absence of the Complainants. In this regard, Ms. Rosen submitted that the provisions of Section 25A of the Equal Status Acts confer the right upon her, as the Complainant’s representative, to present their case and adduce evidence on their behalf, in support of their complaint, in circumstances where they are unable to attend the hearing.

5.2       The Respondent disputes the contentions made by Ms. Rosen in relation to the application of the provisions of Section 25A of the Equal Status Acts and submitted that the hearing cannot proceed in the absence of the Complainants. The Respondent submitted that provisions of Section 38A clearly set out the burden of proof which applies in relation to complaints of discrimination under the Equal Status Acts. This provision provides that the onus rests with the Complainants in the first instance to establish facts from which it may be presumed that discrimination has occurred in relation to them. The Respondent submitted that the Complainants can only establish such facts if they attend an oral hearing to adduce evidence in support of their complaint. It was also submitted that fair procedures require that the Respondent should be afforded the opportunity to cross-examine and challenge any assertions relating to discriminatory treatment which have been made by the Complainants and this could only be achieved if they attend a hearing in relation to the matter.  

6. Conclusions of Equality Officer/Adjudication Officer

Requirement to attend a Hearing

6.1       I will firstly address the issue raised by Ms. Rosen in relation to the provisions of Section 25A of the Equal Status Acts and her contention that it should be permissible for the hearing to proceed in the absence of the Complainants. Section 25A of the Acts provide that: “A party (whether complainant or respondent) to proceedings under section 24 or 25 may be represented by any individual or body authorised by the party in that behalf”. It is well established in law that a Complainant is entitled to instruct his/her legal representative or other agent to act on his/her behalf in proceedings before a quasi-judicial body such as the WRC: for example, to submit a complaint form on the claimant’s instructions. I am satisfied that the provisions of Section 25A clearly provide that a party in proceedings may avail of representation in proceedings under the Acts, including representation by a lay representative such as Ms. Rosen. However, I cannot accept the contention put forward by Ms. Rosen that this provision confers the power on any such representative to adduce evidence or establish the material facts in relation to a complaint in circumstances where the complainant has failed to attend the hearing.

6.2       I would also point out that the burden of proof which applies in relation to complaints under the legislation is set out in Section 38A of the Acts which provides that: “(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary”. This provision requires a Complainant to establish, in the first instance, facts upon which s/he can rely in asserting that prohibited conduct has occurred in relation to him/her. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. It is a well-established principle in the prosecution of complaints under equality legislation that the Complainant is required to attend the oral hearing to establish the primary facts underpinning the claims of discrimination. It is also clear that the principles of fair procedures and natural justice require that a Respondent should be afforded the opportunity to cross-examine and challenge any assertions relating to discriminatory treatment which have been made by a Complainant and that this can only be achieved if they attend a hearing in relation to the matter.

6.3       I would also note that the provisions of Section 25(2) of the Equal Status Acts provide that the Director General (or an Adjudication Officer having been delegated the relevant powers) may form the view that the investigation of certain complaints can be dealt with by written procedure without the requirement to have an oral hearing with the agreement of the parties. However, I am satisfied that the conditions which would be necessary to invoke the provisions of Section 25(2) do not exist in the circumstances of the present complaint and therefore, are not applicable to the instant proceedings.

6.4       Having regard to the foregoing, I am satisfied that there is a requirement on the Complainants in the instant complaint to attend the oral hearing to establish the material facts in relation to their claim of discrimination contrary the Equal Status Acts.

Application for Postponement

6.5       I will next address the further application for a postponement of the hearing which was made by Ms. Rosen at the outset of the hearing on 17th April, 2019. I note that this was the fourth occasion that a hearing date had been scheduled by the WRC in relation to this matter. The Complainants have already been granted three postponements of the hearing prior to the most recent hearing date on 17th April, 2019.

6.6       Having carefully considered this matter and the submissions of both parties, I have decided not to accede to the Complainants’ latest application for a postponement of the hearing in relation to this complaint. In arriving at my decision in this matter, I have taken the following points into consideration:

• The Complainants have already been afforded three postponements of the hearing in relation to this complaint. The WRC has deferred the rescheduling of the hearing to take into account periods of unavailability identified by Ms. Rosen and the Complainants in order to facilitate their attendance at an oral hearing in this matter. However, Ms. Rosen continues to seek postponements on behalf of the Complainants and they have not made themselves available to attend a hearing.
• The Complainant’s representative, Ms. Rosen, was informed by the WRC by letter dated 25th March, 2019 (after the Complainants been granted the third postponement) that a further hearing date was being scheduled for 17th April, 2019. I informed Ms. Rosen in this letter, having regard to the WRC’s obligation to ensure procedural fairness to both parties, that the hearing date of 17th April, 2019 was peremptory against the Complainants and that no further applications for a postponement by the Complainants could be granted. Notwithstanding this direction, Ms. Rosen sought a further postponement by letter dated 8th April, 2019 to the WRC.
• The WRC has a clear procedure for postponements. It states that postponements will only be granted in exceptional circumstances and for substantial reasons. The written application must also be accompanied by relevant supporting documentation. The WRC applies this test to all requests for a postponement. This procedure is clearly set out in the hearing notification letters and would be well known to a representative such as Ms. Rosen, who is familiar with the procedures of the WRC and its predecessor, the Equality Tribunal. I am satisfied that Ms. Rosen failed to comply with the WRC’s procedure in relation to the application for a postponement of the hearing on 17th April, 2019 and did not provide the relevant supporting documentation underpinning the application within the required timeframes. Ms. Rosen did not provide any additional relevant documentation at the oral hearing on 17th April, 2019 in support of the reasons propounded for the postponement.
• I note that one of the reasons put forward by Ms. Rosen for the application for a postponement is the unavailability of a key witness to attend the hearing on 17th April, 2019. However, I am satisfied that the unavailability of a witness does not constitute exceptional circumstances or a valid reason to grant a postponement in circumstances where the Complainants themselves have failed to attend the hearing in order to adduce evidence in relation to the material facts concerning their complaint.
• Article 6 of the European Convention on Human Rights provides that a person is entitled to have their civil rights determined within a reasonable timeframe by an independent and impartial tribunal. In this regard, the WRC’s Adjudication Service is obliged to adhere to the principles of natural justice which means that it must ensure fairness for both parties in relation to its procedures. I am satisfied that if the WRC was to grant any further postponements on the basis of the prevailing circumstances in this case, it may be construed as an infringement upon the Respondent’s rights to have this matter determined within a reasonable timeframe.
• Having regard to the foregoing, I am satisfied that the WRC has made all reasonable attempts to proceed with the determination of this complaint in a timely and efficient manner.
•  
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7. Decision

7.1       As part of my investigation under Section 25 of the Equal Status Acts, I am obliged to hold a hearing. I am satisfied that the Complainants were notified of the arrangements for the hearing on 17th April, 2019. I find that the Complainants’ failure to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 25 has ceased. As no evidence was given at the hearing in support of the allegations of discrimination, I conclude the investigation and find against the Complainants.

_________________

Enda Murphy

Equality Officer/Adjudication Officer

7th May, 2019

Appendix – Complaint Reference Numbers