Case Number: ADJ-00021266. Workplace Relations Commission

• Docket Number: ADJ-00021266
• Hearing Date: 04 November 2019
• Date: 19 August 2020
• Court: Workplace Relations Commission

Procedure:

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

Background:

The complainant claims that the respondent breached its obligations to him under the Employment Equality Act 1998, on the grounds of race, the Parental Leave Act 1998 and the Criminal Justice Act 2011. The complainant commenced employment with the respondent on 7/8/2018. His employment terminated on 7/12/2018. He worked 40 hours a week. He earned an annual salary of €35,000. He submitted his complaint to the WRC on 12/4/2019.

Preliminary Issue – Incorrectly named respondent. Summary of Respondent’s Case:

The respondent raised the preliminary issue of the incorrectly named respondent. The respondent maintains that the adjudicator has no jurisdiction to hear the complaint. The complainant’s payslips, contract of employment and letter of termination clearly disclose the employer’s correct name. The respondent requests that the adjudicator decide on the preliminary point at the outset of the hearing. The respondent relies in this regard on the decision of the High Court in the Minister for Finance v The Civil and Public Service Union (2006) IEHC 14 concerning the adviseability of deciding on a preliminary point and thus obviating the need for a hearing on the substantive claim.

Summary of Complainant’s Case:

The complainant asked to be permitted to amend the respondent’s name. All his dealings were with the named respondent. The complainant’s representative stated that the complainant had no advice to hand when he submitted his complaint. Advice came later.

Findings and Conclusions on Preliminary Issue.

I undertook to address the preliminary issue in my decision and not at the outset of the hearing. I accept that the correct name of the respondent was on the complainant’s pay slip and contract. The matter of correcting the respondent’s name was addressed in Auto Direct Ltd v Vasile Mateui, DWT1922. While the circumstances of the instant case differ somewhat from those pertaining in the appeal before the Labour Court what they have in common are the following elements which were set out in DWT 1922: “The Court is further fully satisfied that the respondent party that appeared before the Court was the Complainant’s employer. That party was fully aware of the Complainant’s complaints to the WRC. He knew precisely from whom the complaints were and to what the complaints referred. The respondent party has had a full opportunity to be heard and to answer those complaints. The Court is therefore equally satisfied that the employer will suffer no prejudice or injustice by its decision on this preliminary matter…….” In arriving at this conclusion, the Court was also conscious of the High Court Judgment in O’Higgins -v- University College Dublin & Another (2013) 21 MCA wherein Mr Justice Hogan held : “Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be)” …. “In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.” The Labour Court continued “Declining jurisdiction in these circumstances would certainly amount to a “grossly disproportionate response “as envisaged in O’Higgins. Accordingly, the Court considers the erroneous inclusion of ‘Auto Depot Tyres Ltd’ on the WRC complaint form to be no more than a technical error. The Court is fully satisfied that the Respondent’s name can simply be amended on the paperwork to reflect its correct legal title, that of ‘Auto Depot Ltd’. For the reasons cited above, I agree to the complainant’s request to correct the name of the respondent to reflect its correct legal title. It is corrected in this decision.

Substantive Complaint Summary of Complainant’s Case:

CA-00027712-001.Complaint under the Employment Equality Acts 1998-2015. The complainant worked as an IT Lab Analyst with the respondent from 7 August 2018 until his employment was terminated on 7 December 2018. The complainant maintains that the respondent discriminated against him on grounds of race. The last act of discrimination occurred on 13/11/2018 which consisted of accusations of poor performance made against him after his return from force majeure leave. Instances of alleged discrimination on grounds of race. The complainant cites the failure of the employer to provide him with what is called Empower training. His two Irish colleagues doing the same job were sent on this training within a few weeks of taking up employment. The respondent advised him that his low salary of €35,000 per annum was reasonable because the company planned to invest around €10,000 in his training like they had already done for his two Irish colleagues. The complainant states that this training was critical to his advancement and ability to access certain IT programmes and perform certain tasks. The company to whom he was deployed, the Hirer, told the complainant that they would provide him with training but failed to do so. He submitted an email from the Hirer’s IT Regional lead advising him that he could not undertake types of work because he wasn’t Empower trained but that he was exploring training opportunities for him. The complainant states that he did an excellent job and that he was frequently ahead of target. Despite many requests and promises he has not received the training. Discriminating against the complainant in dismissing him because he opposed discrimination. The complainant maintains that the dismissal on 7 December was an act of discrimination on the grounds of race. In an email of the 14 November the complainant accused the respondent of discriminatory action in notifying the complainant on the 13 November of underperformance issues which the complaint states are baseless, and evidence of less favourable treatment as compared to that meted out to Irish colleagues. The complainant maintains that Irish employees were treated differently. The respondent gave him written notice of dismissal on 26 November. Complaint of harassment on the grounds of Race. The complainant states that the respondent account manager and respondent general manager called to his house on the 15 November seeking a return of a laptop and a phone which was not their property but the property of one of the Hirer’s clients. They behaved in a loud and intimidating manner. CA-00027712-002. Complaint under the Parental Leave Acts, 1998-2019. The complainant states that he took force majeure leave on 5,6,7 November 2018. Upon returning to work on 13 November he was called to a meeting with the respondent’s account manager with responsibility for the Hirer. He was not given advance notice of the content of the meeting. The account manager put baseless concerns and accusations of underperformance about his work. He considers this to be penalisation for having taken the leave because as far as he is concerned the accusations are undated and false. CA-00027712-003. Complaint under Schedule 2 of The Criminal Justice Act,2011. The complainant states that he reported a breach of the Act of 2011...