Case Number: ADJ-00017470. Workplace Relations Commission

• Judgment Date: 26 January 2022
• Year: 2022
• Date: 26 January 2022
• Docket Number: ADJ-00017470
• Hearing Date: 18 October 2021
• Court: Workplace Relations Commission
• Respondent: Paddy Browne's Pub

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complain 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 complaint.

Background:

This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings. On 15 October 2018, the Complainants Solicitor lodged a complaint of Discrimination on grounds of gender with the WRC. On that day, further complaints were also made on Victimisation, Discriminatory Dismissal, Harassment and Sexual Harassment, where the most recent date of discrimination cited as 25 May 2018. Given the timeline between the submission of the complaint and the hearing date, I checked with the Complainant just prior to hearing whether all matters still stood, and he confirmed that there were no changes on content of the complaint. The Complainant was represented by Sean Ormonde Solicitors and the Respondent by HD Keane Solicitors. The Complainant was the sole witness in her case. The Respondent presented three witnesses with a fourth witness, Ms A absent due to a personal issue. The Respondent submitted four witness statements prior to hearing. The last documentation received in the case was received from the Respondent and dated 9 November 2021. A Preliminary Issue arose regarding the correct legal title of the Respondent, and I explained to the parties that I was obliged to hear both the preliminary and substantive arguments in the case. If the preliminary issue was decided in favour of the complainant, I would then move to a consideration of the substantive case in my decision. In the event, that the preliminary issue was decided in favour of the Respondent, then I was not required to include a consideration of the substantive issue in my outcome report. Refer Section 79(6) of the Act. Both parties would maintain their right of appeal to the Labour Court.

Summary of Complainant’s Case:

Preliminary Issue: The Complaint form lodged with WRC at 10.35 am on 15 October 2018 detailed the name of the Company as Paddy Browne’s Pub. On 18 December 2018, the Complainants Solicitors submitted the following request to WRC We refer to the above matter and wish to confirm that an error was made upon lodging this claim. The correct legal title is Andrew Kiely trading as Paddy Browne’s Pub. We would be obliged if you could amend the Respondents name to reflect the correct legal entity The Respondent Representative came on record on 15 November 2018 and submitted an authorisation from his client cited as Andrew Kiely, Paddy Browne’s Pub and address. On 19 December 2018, the WRC Administrative division responded with Adjudication Services cannot make changes to existing complaint forms, and if you wish to make changes to the name you may submit a new complaint form with new details. The onus is on the complainant to ensure the correct name is given to the respondent. The rules on time limits apply to each individual complaint form. On 3 September 2019 the Complainants representatives submitted a written submission on behalf of the complainant. This submission sought compensation in respect of the alleged acts of discrimination. On 10 October 2019, the Respondent denied the allegations of discrimination. A number of postponements of hearing dates on consent followed until the case was listed for hearing for 18 October 2021. Letters of notification of hearing were sent on 10 September 2021 and carried considerable detail on the changes in WRC procedures following legislative amendments on the passing of the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and the Supreme Court case of Zalewski v Adjudication Officer and Or’s [2021] IESC 24. The issue of legal title lay moot in the interim from 18 December 2018 to some three years later hearing date of 18 October 2018. The Complainant did not submit a new complaint form. I have not identified any inter party correspondence outside the engagements on postponement requests. The Complainants representative submitted that he sought to rely on the legal title submitted on 18 December 2018 that of Andrew Kiely t/a Paddy Browne’s Pub. He contended that the complainant had corrected this title at the first opportunity, within the year and she ought not be disadvantaged. The complainant had not been provided with a contract of employment and she was not made aware of the correct legal title by the Respondent. He argued that the legal entity was a Partnership, joint and severable and one partner was deemed in law to be liable for the other partner. He sought to amend the legal title to reflect the true owners in Partnership law. I brought the P45 attached to the Complainants submission to the party’s attention. This document was not determinative in terms of a name of the Proprietor as Part 1 was missing. Both parties agreed to address this point directly with Revenue and to revert to me. The Complainant did not follow through with this. The Complainant representative referred to a separate complaint to the Data Protection Commissioner had not yielded a reference to the incorrect name of the Respondent. Substantive Issue: On 15 October 2018, the Complainant, through her Solicitor lodged a number of claims to the WRC under the Employment Equality Act, 1998. The Complainant submitted that she had been discriminated on gender grounds in the course of her employment 26 April 2018 to 25 May 2018. The Cessation certificate, raised by Revenue, places the complainant in employment 23 April 2018 to 24 May 2018. The Complainant submitted that she had been discriminated in her conditions of employment, in respect of opposing discrimination, harassed, sexually harassed and dismissed for discriminatory reasons. She cited the most recent date of discrimination as 25 May 2018. The Complainant earned €10.00 per hour in her capacity of Bar Staff. Solicitor for the Complainant outlined that the Complainant had interviewed for a Bar Staff position on 21 April 2018. During her tenure, the Complainant had highlighted her concerns regarding the presence of a particular couple, Ms A and Ms B in the pub and their behaviour while on site. It was the Complainant case that the Respondent did nothing to protect the Complainant against the behaviour of this couple and she was dismissed against pleas made by her for her retention in employment. The Complainant found new work soon after her dismissal, but she carries a residual unease in how she was treated at the business. By way of written submission, the Complainants representative detailed a number of untoward events which occurred on the respondent premises on Friday, 4 May 2018, where the complainant, in the course of her work, experienced hostility and insulting commentary from customers. It was the Complainants understanding that the couple at the centre of the hostility were barred by the Manager on duty. This was subsequently disturbed and overturned by the Respondent which caused the Complainant to become anxious and questioned whether she could continue to work at the premises. The Respondent asked her not to leave and offered to increase her hours to 30 hrs per week. The Complainant continued to question the permission granted for the customers, Mr A and Ms B to attend the Pub. The Respondent advised her to “think about it “. The Complainant returned to work on May 22, 2018, only to be informed that she was not required at the business. The Complainant felt alienated and unheard by the Respondent. What followed was her dismissal by text: We won’t be offering you a contract at Paddy Browns, so therefore, your probation is over. We can’t run a business like this This was confirmed by email dated 27 May 2018 and a request for a p45 followed from the complainant. The Complainant Representative argued that the Respondent failed to protect the Complainant from “overt and hostile sexual harassment “in the workplace. He attributed the dismissal as linked to her gender and a direct result of the complainant raising concerns regarding how she was treated by the customers Mr A and Ms B.

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