Case Number: ADJ-00015823. Workplace Relations Commission

Docket NumberADJ-00015823
Hearing Date12 November 2019
Date10 July 2020
CourtWorkplace Relations Commission
Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015following the referral of the complaints to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

The hearing of these complaints was scheduled for 12 November, 2019. Prior to the commencement of the hearing on this date, the Complainant’s legal representative provided a written submission in support of her complaints under the Organisation of Working Time Act, 1997 and the Employment Equality Acts, 1998 to 2015. This submission was given to the Respondent and the start of the hearing was delayed allowing her the opportunity to consider the said written submissions.

It was noted following perusal of the Complainant’s written submissions in relation to the complaint under the Employment Equality Acts that reference was made therein to a claim of discriminatory dismissal and discriminatory treatment in relation to conditions of employment on the grounds of family status in addition to the complaint of discriminatory dismissal on the grounds of disability which had been outlined on the Complaint Referral Form that was submitted to the WRC on 11 July, 2018. The Complainant’s representative confirmed that the scope of the complaint under the Employment Equality Acts included the claims of discriminatory dismissal and discriminatory treatment contrary to Sections 8(1)(b), 8(4)(a) and (b) and 8(6)(c) of the Acts under both the disability and family status grounds.

Having considered this matter, I invited oral submissions from both parties at the hearing on the issue as to whether the inclusion of the said claims of discriminatory dismissal and discriminatory treatment on the ground of family status constituted a broadening of the scope of the initial complaint and if so, whether such an amendment was permissible at this stage of the proceedings. The Respondent, who was unrepresented at the hearing, sought an adjournment of the proceedings at that juncture in order to obtain legal advice in relation to the matter.

In the circumstances and having regard to the fact that the Complainant’s written submissions was only provided to the Respondent immediately prior to the commencement of the oral hearing, I decided, in the interests of fair procedures, to adjourn the hearing on 12 November, 2019 and allow the Respondent the opportunity to avail of legal advice/representation in relation to the matter. I also informed the parties that I would afford them an opportunity to address the aformentioned issue of jurisdiction by way of written submissions prior to reconvening the oral hearing.

Both parties provided written submissions on the issue of jurisdiction concerning the scope of the complaint under the Employment Equality Acts prior to the reconvened oral hearing on 25 February, 2020. The Respondent, in its written submissions, also raised a further issue of jurisdiction that the Complainant had impleaded the incorrect legal entity as the Respondent to the instant proceedings. A summary of the respective positions of both parties in relation to both of the issues of jurisdiction is set out hereunder.

Background:

The Complainant was employed by the Respondent as a Hair Stylist from 26 April, 2016 to 21 April, 2018 when her employment was terminated. The Complainant claims that she was discriminatorily dismissed from her employment contrary to Section 8(6) of the Employment Equality Acts on the grounds of disability and family status. The Complainant also claims that she was subjected to discriminatory treatment on the grounds of disability and family status contrary to Sections 8(1)(b), 8(4)(a) and (b) and 8(6)(c) of the Acts under both the disability and family status grounds.

The Respondent disputes the claims of discriminatory dismissal and discriminatory treatment under the Employment Equality Acts and contends that the Complainant’s employment was terminated by reason of redundancy.

The Complainant also claims that the Respondent has contravened the provisions of Section 12 of the Organisation of Working Time Act 1997 during her period of employment in relation to rests and intervals at work. The Respondent disputes the claim that it has contravened the aforementioned provision of the Organisation of Working Time Act 1997 in relation to the Complainant’s employment.

Summary of Complainant’s Case:

CA-00020609-001 – Complaint under the Employment Equality Acts

Issue of Jurisdiction - Incorrect Respondent

The Complainant disputes the Respondent’s claim that the Adjudication Officer lacks jurisdiction to investigate the instant complaints under the Employment Equality Acts and the Organisation of Working Time Act, 1997 on the basis that the incorrect legal entity has been impleaded as the Respondent in these proceedings.

The Complainant submits that her employer Ms. Y has been fully aware of the instant proceedings from the outset and that correspondence in relation to this matter was issued by her solicitor on 19 and 25 April, 2018 to Ms. Y prior to the referral of the complaint to the WRC. The Complainant submits that her complaint alleging discrimination contrary to the Employment Equality Acts which named the trading name of the business (namely XXX YYY) was referred to the WRC within the statutory time limits.

It was submitted that Ms. Y has registered XXX YYY as a business name and therefore it was clear that the instant complaints could only relate to Ms. Y as the trading name of the business has no legal existence in and of itself. The Complainant contends that Ms. Y accepted the instant proceedings and communicated with the WRC and has held herself out as the Respondent at all material times in relation to the complaints. The Complainant submits that its position on this matter is further evidenced by the fact that Ms. Y attended the hearing of the complaint on 12 November, 2019 (but which was subsequently adjourned).

The Complainant submitted that in keeping with the spirit of the governing statute, the Complaint Referral Form is a non-statutory form which is not meant to be a technical document but simply one that provides a means of conveying a complaint. It was submitted that it is clear from the judgment of the High Court in County Louth VEC v Brannigan [2011] IEHC 370 that rigidity should not be applied to the form once it has been established that that the Respondent was aware of the claim being made against it.

The Complainant further submits that the County Louth VEC case makes it clear that there is nothing to prohibit an Adjudication Officer from acknowledging that the claim is being made against Ms. Y unless that would introduce a new claim or some unfairness. It was submitted that is not the position in the instant case, given Ms. Y’s involvement and it would be an absurdity (in light of the facts and law) not to acknowledge Ms. Y as the Respondent in the proceedings and apply whatever actions or amendments are necessary in that regard.

Jurisdictional Issue – Scope of the Complaint

The Complainant submits that the inclusion of the family status ground in her submissions dated 12 November 2019 does not give rise to any issue relating to jurisdiction or an additional claim to that filed on foot of the WRC Complaint form on 11 July 2018.

It was submitted that the right to bring and have a claim heard is conferred by Section 77 of the 1998 Act as amended and that this does not require a specific ground to be set out in the WRC Complaint form when filed. Furthermore, there is no jurisdiction to further prescribe this mode of initiating the claim by reference to a non-statutory form and the County Louth VEC and the Equality Tribunal [2009] IEHC 370 and [2016] IESC cases (from both the High Court and the Supreme Court) show that the approach of the Courts and other bodies when determining legal rights should in fact operate conversely when it comes to pleadings provided that no prejudice arises.

It was further submitted that the specific grounds of discrimination are only relevant in two respects:

i. The Respondent is entitled to know the case being made against it;

ii. To succeed the Complainant must show that discrimination arose on foot of one of the nine grounds.

However, it does not follow from the above that the specific ground or grounds (of the nine) must appear on the WRC Complaint form (or other document initiating the claim). lt was submitted that such a proposition would be in conflict with the jurisprudence of the County Louth VEC case.

The issue is therefore one relating to particularisation of the claim of discrimination and not jurisdiction.

It was submitted that a complaint of discrimination was filed via the...

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