EDA2420

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00038076 (CA-00043352-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 2 February 2021. Labour Court hearings took place on 9 April 2024.

The following is the Determination of the Court.

DETERMINATION:

This is an appeal by Dolores Linehan (the Appellant) against a decision of an Adjudication Officer given under the Employment Equality Acts, 1998 to 2021 concerning a complaint of discriminatory treatment on the ground of disability against her former employer, Pfizer Ireland Pharmaceuticals Private Unlimited Company (the Respondent). 

The complaint was made to the Workplace Relations Commission (WRC) on 01 April 2021 and the decision of the Adjudication Officer giving rise to the within appeal issued on 20 January 2023. The Adjudication Officer found that the complaints of Discrimination on the grounds of Reasonable Accommodation, Victimisation, Harassment and Access to Training failed.

An appeal of that decision was received by the Court on 24 February 2023.

This Decision is linked to a related complaint under the Employment Equality Acts, 1998 to 2021 EDA2421. Both appeals were scheduled to be heard together.

Background

A hearing set for 15 August 2023 were postponed by the Court due to the unavailability of a witness for the Appellant.

A hearing set for 6 September 2023 were postponed by the Court due to the unavailability of a witness for the Respondent.

The appeals were relisted for hearing on 21 November 2023. The Court conducted a case management meeting on that day given the extensive correspondence and submissions on file, and it was agreed that both appeals would be scheduled together and set down for hearing over three days.

The appeals were subsequently scheduled for hearing on 9, 10, and 11 April 2024.

The Appellant failed to attend the scheduled hearing on 9 April 2024 to move her appeal.

The Hearing on 9 April 2024

The Appellant did not respond to efforts by the Secretary to contact her in advance of the hearing date to ascertain if she was attending the hearing.

The hearing was scheduled to start on Tuesday 9 April 2024 at 10.00am. The Respondent attended with its legal representatives and several witnesses, including one witness who attended by video-link.  There was no appearance by the Appellant in the Court room at the allocated start time.

The commencement of the hearing was delayed for a period, during which time the Court Secretary attempted to contact the Appellant to ascertain if she was attending the hearing and/or if she was delayed en route.

The hearing opened at 10.20am. The Court noted that, in circumstances where the Appellant was not in attendance, it was open to it, having heard from the Respondent, to either adjourn the hearing to an alternative date on the basis of the Appellant’s non-attendance, or to regard the Appellant’s non-attendance at the hearing as a failure to advance her appeal.

Ms Rosemary Mallon BL, on behalf of the Respondent, advised that her client opposed adjourning the hearing to another date. She referred to correspondence from the Appellant dated 3 April 2024, addressed to the Court and copied to the Respondent’s solicitor, in which the Appellant stated her intention not to attend the hearing and to seek a judicial review of the proceedings. On foot of that correspondence, the Respondent confirmed to the Court that it was ready to proceed and defend the appeals scheduled for hearing on three consecutive days.

Ms Mallon noted that on 4 April 2024 the Court refused the Appellant’s request to postpone the hearing, and she was advised that the appeals would proceed as scheduled. The Appellant was forewarned by the Court of the possibility that her appeals may be struck out for want of prosecution.

Ms Mallon noted that in a subsequent letter to the Court on Friday 5 April 2024, the Appellant did not restate her intention not to attend the hearing, and instead re-iterated matters previously raised. Ms Mallon proposed, for the abundance of caution, that the hearing be adjourned for a short period of ten or fifteen minutes in case the Appellant was delayed in traffic, as she was aware that several attendees experienced traffic difficulties that morning.

The Court hearing was adjourned for a short period to ascertain whether the Appellant had been in contact with the Court.  During that time the Appellant did not make contact with the Court or the other side.

The Court reconvened at 11.05 am. Ms Mallon submitted that the Respondent was present at the hearing and prepared to defend the appeals, which were lodged by the Appellant. Ms Mallon requested that the Court find the appeals not well founded as the Appellant had failed to attend and move her appeals.

The Court closed the hearing, and advised that it would consider the matter further, and communicate its decision to both parties in due course.

After the hearing closed, the Court wrote to both parties and advise that the hearing which opened as scheduled, had not been adjourned. The parties were advised that the hearing was closed, that the Court was now engaged in its statutory deliberative process and that no further communications or submissions should be made.

Deliberation

Rule 20 of the Labour Court Rules 2024, states:

20. Where the Appellant does not turn up for the hearing and, no satisfactory explanation is given to the Court for the failure of the Appellant to appear, the Court may determine that the appeal has not been upheld.

In this case the Court was satisfied that the Appellant was on notice of the hearing date and time.

The Appellant was in attendance on the 21 November 2023 at the case management meeting when it was decided that the appeals would be set down for hearing over three days. Since that time there has been considerable correspondence between the Appellant and the Court, including a request by the Appellant that the case be adjourned. That request was refused by the Court on 15 March 2024.

On 26 March 2024, the Appellant again wrote requesting that the hearing be adjourned and relisted when Respondent’s witness was available for a face-to-face hearing rather than give evidence by video link.

On 2 April 2024, the Court confirmed that the appeals remained scheduled to proceed on the dates as notified, and that any matters of concern in relation to witness evidence or any other matters could be raised with the division at the hearing.

On 3 April 2024, the Appellant wrote to “demand” that new hearing dates be scheduled where the Respondent’s main witness would physically be in attendance or failing that it was her absolute intention to bring judicial review proceedings.

On 4 April 2024, the Court confirmed that the Appellant’s request for a postponement of the hearing was refused and that the hearing would proceed as scheduled on 9, 10 and 11 April 2024. The Appellant was advised that if she had any concerns on the day that the giving of witness evidence by remote video link was resulting in an injustice to her the Court would intervene in whatever way it considered necessary to rectify that matter. Finally, the Appellant was advised that should she fail to attend the scheduled hearing, the Court may consider her non-attendance as a failure on her part to prosecute her appeal, and in those circumstances the decision of the adjudication officer would stand.

On 5 April 2024 the Appellant sent a four-page letter to the Court in which she stated, inter alia, that she reserved her rights in relation to threats and attempts to coerce her into acting in a manner which most likely was prejudicial to her and her appeals.

The Appellant did not respond to efforts by the Court Secretary to contact her by email and by phone in advance of the hearing to confirm her attendance at the scheduled hearing.

Where an Appellant does not turn up for the hearing and, no satisfactory explanation is given to the Court for the failure of the Appellant to appear, the Court may determine that the appeal has not been upheld.

In coming to the decision in relation to that matter the Court took account of the following:

1. The Court was fully satisfied that the Appellant was aware that the hearing was scheduled to proceed as scheduled on 9, 10 and 11 April 2024, and that her requests for a postponement of the hearing were refused.
2. In advance of the hearing, the Appellant raised various matters relating to her appeal in correspondence to the Court.
3. The Appellant was advised that she could raise any matters of concern about her appeal, with the division at the hearing.
4. The Appellant was advised that if she had any concerns on the day about the giving of evidence and cross examination of that evidence by remote video link was resulting in an injustice to her the Court would intervene in whatever way it considered necessary to rectify that matter.
5. The Appellant was on notice that if she failed to attend the scheduled hearing that the Court may consider her non-attendance as a failure on her part to prosecute her appeal, and in those circumstances the decision of the adjudication officer would stand.
6. The Appellant made no contact with the Court following her letter of 5 April 2024 in which she stated that she reserved her rights in relation to threats and attempts to coerce her into acting in a manner which most likely was prejudicial to her and her appeals.
7. The Appellant did not respond to efforts by the Court Secretary to contact her in advance of the hearing.
8. The Appellant provided no satisfactory explanation for not appearing at the scheduled hearing of the appeal.
9. The Respondent was present at the hearing, was represented at the hearing, and had a number of witnesses in attendance.
10. The Respondent submitted that the hearing should not be postponed or adjourned and that the appeal be adjudicated by the Court as not well found for want of prosecution.

To Court noted the obiter comments from Barrett J in David Mc Cormack and Ashford Castle Hotel Ltd [2022] IEHC 188 at paragraph 17.

“Mr Lawless touches on an important point in this regard. Courts too have a tendency to be more lenient with self-represented litigants than other litigants. However, a question does arise as to whether such systemic indulgence is always entirely fair to the parties who are not shown such indulgence. Justice has to be done in an even-handed manner; certainly, the extension of any indulgence in any one case has to be carefully weighed by a court, or other decision-making body minded to extend such indulgence, against any time and /or financial and /or costs that it raises for the other side in proceedings, not least in ensuring that proceedings are brought to a conclusion in as timely a manner as justice allows”.

The Court having considered all of the above did not believe that justice would be served by postponing the hearing. The Court decided to proceed with the hearing as scheduled.

An appeal to the Labour Court is heard as a de novo appeal. As the Appellant did not attend the hearing to move her appeal, the appeal fails, and the Court finds that her complaints under the Act are not well founded.

Determination.

The Appellant was not present to move his appeal. Her appeal fails.

The complaints under the Act are not well founded.

The decision of the Adjudication Officer is upheld.

	Signed on behalf of the Labour Court
	Katie Connolly
AR	______________________
16 May 2024	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Aidan Ralph, Court Secretary.