ADJ-00010276

Complainant

Respondent

Anonymised Parties

A Complainant

A Named Council Official

Representatives

Heather Rosen

Michael Houlihan & Partners Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00013518-001

16/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00013526-001

16/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00013533-001

16/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00013536-001

16/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00013540-001

16/08/2017

These complaints concern five claims by the complainants Mr. M and Ms. C and their 3 children that they were discriminated against and harassed by the respondent on the grounds of their race (ethnic origins) and membership of the Traveller community in terms of Sections 3 and contrary to Section 5 and Section 11 of the Equal Status Acts in relation to the serving of eviction notices in respect of their temporary caravan dwelling.    

The complaint was referred to the WRC under the Equal Status Acts on the 16th of August 2017. On the Complainant Referral Forms the complainants were named as Mr. M and Ms. C and their 3 children and the complaints were referred against a named Council official who was employed by the relevant County Council at the material time in question.

The complaint forms cite the time period of the discrimination as dating from 23rd of August 2016 to end of October 2016.     The within complaints were referred to the WRC under the Equal Status Acts on the 16th of August 2017.

This Adjudication file is made up of five complaint forms. In total there are twelve Adjudication files associated with these complaints. Two of these Adjudications files relate to claims against named officials of a Government Department (Adj-00010232 & Adj-00010240) and the other ten Adjudication files contain claims lodged against named officials of a County Council (Adj-00010251, Adj-00010262, Adj-00010273, Adj-00010274, Adj-00010276, Adj-00010277, Adj-00010278, Adj-00010279, Adj-00010512 & Adj-00011382).

Given the large number of related complaints, 52 in total, a decision was taken by the WRC to conduct a ‘call over type’ hearing for all of these claims in order to clarify the complaints and to ascertain whether all 52 complaints were to proceed against all five named respondents.   This was also an opportunity to clarify any preliminary or jurisdictional issues. This hearing took place on the 28th of February 2020.  

The parties were notified of the arrangements for the hearing by letter dated 24th of January 2020. There was no attendance on that date by or on behalf of the complainants or their representative.

Given that a number of these claims involve minors I have decided to exercise my discretion to anonymise the parties.

There was no attendance on the day of the hearing by or on behalf of the complainants or their representative. The respondents and their legal representatives were in attendance. A postponement of the hearing had been sought by the complainants representative, this application had been refused.

The complainants representative, Ms. Rosen advised the Adjudicator the previous week on 21st of February 2020 at an unrelated hearing of other cases, that she would have a difficulty in attending the hearing the following week as she stated that she was also required to attend at Ennis District Court on that date. No documentary evidence was produced in support of this assertion on that date. Ms Rosen went on to state that she had also previously notified Mr. Jackson of the WRC of this fact.

In response, the Adjudicator advised Ms. Rosen, that she was not aware of any postponement of the matter scheduled for the 28th of February and as far as she was concerned the hearing in question was proceeding as scheduled on the 28th of February 2020.

It is evident that Ms. Rosen later contacted the WRC on 27th of February, the day before the hearing seeking a postponement of the hearing scheduled for the 28th of February 2020, on the basis that she was unable to attend the hearing due to her involvement in a Case that was scheduled to be heard in the Ennis District Court on the same date.  

This postponement request was dealt with by the WRC’s Postponements unit and Ms. Rosen was advised that the request was refused, and the hearing was proceeding as scheduled. The Postponements officer advised Ms. Rosen as follows:

“The Commission has declined your Request for a Postponement and the Hearing will proceed as listed. Any appeals must be made in Person as per our Guidelines which in this case will be at the Hearing due to the late Application”.

The complainants representative, Ms. Rosen in support of her application for a postponement on the day before the hearing, submitted a photograph of part of a letter addressed to her from a Tipperary based solicitor which indicated that a case involving a Mr. S was taking place in Ennis District Court on the 28th of February, there was no indication on the portion of the letter submitted to suggest that Ms. R herself was required to be in attendance in Ennis District Court on that date.

The complainants representative Ms. Rosen, on 3rd of March 2020 sent a further letter to the WRC, post the hearing of 28th of February, stating that she had in fact not attended Ennis District Court on the hearing date of 28th of February but that she had instead attended a different case being heard in the Court of Appeal in Dublin on the same date. Ms. R did not provide any documentation before or after the hearing date in support of her assertion that she was required to attend the Court of Appeal hearing in Dublin on the WRC hearing date or that she was acting as representative for any party whose attendance was required at the Court of Appeal hearing in Dublin on that date.

The complainants representative Ms. Rosen was advised prior to the hearing that her application for a postponement was refused and that the hearing would proceed as scheduled on the 28th of February 2020 where an appeal of that decision could be made in person at the hearing due to the late application. The initial postponement application was based on an assertion by Ms. Rosen that she was required to attend at Ennis District Court on the date in question. Ms. Rosen did not attend the WRC hearing on the 28th of February and submitted further correspondence post hearing in support of her application for a postponement, this time stating that her attendance had been required at a Court of Appeal hearing in Dublin on the date in question.

I have carefully considered this matter and having examined all of the information and documentation submitted both pre and post the hearing and having regard to all of the circumstances, I am satisfied that the complainants application does not satisfy the WRC’s requirements for the granting of a postponement.

In arriving at my decision in this matter, I have taken into consideration that the WRC has a clear procedure for postponements. It states that postponements will only be granted in exceptional circumstances and for substantial reasons. The application must also be accompanied by relevant supporting documentation within the required timeframes.

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 body, the Equality Tribunal.

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 28th of February 2020. 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 the complainants did not attend the hearing in order to pursue their complaints of discrimination, I conclude the investigation and find against the complainants.

As the complainants did not attend the hearing in order to pursue their complaints of discrimination, I conclude the investigation and find against the complainants.