Case Number: DEC-E2016-045. Workplace Relations Commission

• Docket Number: DEC-E2016-045
• Date: 01 March 2016
• Court: Workplace Relations Commission
• Parties: Slywia Wach -V- Smorgs ROI Management Limited t/a Travelodge Waterford

EMPLOYMENT EQUALITY ACTS 1998-2011 Decision - DEC–E2016-045 PARTIES Slywia Wach (represented by SIPTU) and Smorgs ROI Management Limited t/a Travelodge Waterford (represented by Mr. Conor Bowman B.L. instructed by McCartan & Burke Solicitors) File References: et-152606-ee-14 Date of Issue: 9th March, 2016 1. Dispute

1.1 This case concerns a complaint by the complainant that she was discriminated against by the respondent on the grounds of gender, family status and race contrary to sections 6(2)(a), (c) and (h) of the Employment Equality Acts, 1998 to 2011 in relation to her conditions of employment. The complainant also claims that she was subjected to harassment contrary to section 14A of the Acts and victimisation contrary to section 74 of the Acts.

2. Background

2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 to 2011 to the Director of the Equality Tribunal on 17th December, 2014. In accordance with his powers under section 75 of the Employment Equality Acts, the Director General delegated the case on 30th October, 2015 to me, Enda Murphy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2011. This is the date I commenced my investigation. A written submission was received from the complainant on 21st May, 2015 and from the respondent on 29th July, 2015. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 9th December, 2015.

2.2 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.

3. Jurisdictional Issue in relation to Time Limits

3.1 The respondent has submitted that the present complaint is out of time and does not comply with the required time limits for the referral of a complaint within the meaning of section 77 of the Employment Equality Acts. Therefore, before making a decision on the substantive issue I must be satisfied that the complaint is properly and validly before the Tribunal.

Summary of Complainant’s Case on Jurisdictional Issue

3.2 The complainant accepts that the present claim was not referred within the prescribed time limits provided for in section 77(5) of the Acts. However, it is the complainant’s position that the delay in referring the complaint within the prescribed time limits was due to a misrepresentation by the respondent within the meaning of section 77(6) of the Acts. The complainant initially referred a complaint to the Director of the Equality Tribunal under the Employment Equality Acts on 1st March, 2012 against Travelodge Management Limited t/a Travelodge Waterford. However, it subsequently transpired that the incorrect respondent was named in these proceedings and the complainant contends that this error arose as a result of the respondent having misrepresented its true identity.

3.3 The complainant’s submissions on the jurisdictional issue can be summarised as follows:

· Over the course of the complainant’s employment she has been issued with employment related documentation (including a Statement of her Terms and Conditions of Employment, payslips, P60’s and Income Levy Certificates) which identified her employer as “Travelodge” or “Travel Lodge”. When the initial complaint was being referred to the Equality Tribunal in 2012 all of these documents were considered and following a search of the Companies Registration Office website the complainant’s representative identified a company named Travelodge Management Limited which she assumed was the correct legal identity of the respondent.

· A colleague of the complainant, in the same employment, initiated proceedings against Travelodge Management Limited t/a Travelodge Waterford under the Organisation of Working Time Act 1997 and the named respondent engaged with the Rights Commissioner Service and attended a hearing in that complaint without objection. The matter was subsequently settled between the named respondent and the complainant in those proceedings.

· The complainant initiated proceedings against Travelodge Management Limited t/a Travelodge Waterford under the Maternity Protection Act 1994 and the Organisation of Working Time Act 1997. The respondent in those proceedings was professionally represented and the representative engaged with the complainant’s representative, the Rights Commissioner Service and on behalf of the respondent without objection. A settlement was reached in these cases and the written settlement agreement between the parties in this matter was headed “Settlement Agreement between Travelodge Management Limited and Slywia Wach”. The terms of this agreement went on to record that Travelodge Management Limited agreed to pay the complainant a sum of money in compensation for not having received a premium for Sunday working and that the complainant agreed to withdraw her claim under the 1997 Act.

· The complainant’s employer has consistently held itself out as “Travelodge Management Limited”, and accordingly, it is the complainant’s employer that has caused the confusion surrounding the correct legal identity of the respondent by issuing legal documents that do not state the correct legal entity.

· In summary, the complainant submitted that the complainant’s employer was fully aware of the aforementioned complaints against Travelodge Management Limited and misrepresented itself as that entity during proceedings before the Rights Commissioner Service and during proceedings which the complainant had initially referred to the Equality Tribunal. It was submitted that had the complainant’s employer not misrepresented its correct legal identity the complainant would have been in a position to refer the initial complaint against the correct respondent.

3.4 The complainant claims that the correct legal identity of her employer only came to light on or about 25th June, 2014. The complainant submitted that the date of occurrence of the discrimination or the date of its most recent occurrence for the purposes of the present complaint is 25th June, 2014 (i.e. the date upon which the misrepresentation came to the complainant’s notice) thereby bringing the present complaint within the required time limits as provided for in section 77(6) of the Acts.

Summary of Respondent’s Case on Jurisdictional Issue

3.5 The respondent submitted that the complainant was employed by a company called Smorgs (Ireland) Limited during the period of time relevant to the present complaint. The business of Smorgs (Ireland) Limited was transferred to Smorgs (ROI) Management Limited in 2014 and the complainant’s employment transferred to that company pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. The complainant worked in the Respondent’s hotel in Waterford, which operates under the trading name of “Travelodge” owned by Smorgs (ROI) Management Limited and previously designated to Smorgs (Ireland) Limited on 1st January, 2003.

3.6 The respondent’s submissions on the jurisdictional issue can be summarised as follows:

· Any search of the Companies Registration Office will show Smorgs (ROI) Management Limited to be the owner of the registered business name “Travelodge”. Similarly, a search of the Business Names Register will reveal “Travelodge” to be a trading name of Smorgs (ROI) Management Limited. The onus on any complainant or moving party in proceedings, and indeed on their representatives, is to take ordinary and reasonable steps to ascertain the correct description and identity of the party against whom it is intended to claim. The failure of the complainant’s representative to establish the correct name of the Respondent cannot be said to be the fault of the Respondent in circumstances where an admitted search of the CRO was carried out but where the search was less than complete.

· The complainant was issued with documentation such as P60’s which included the company registration number of the respondent and had the Complainant’s representative carried out a proper search in the CRO using this information prior to referring the initial complaint she would have been in a position to identify the correct name of her employer.

· The complainant could have sought clarification from her employer regarding the correct legal identity of the Respondent prior to referring the present complaint. Such an enquiry could have taken the form of a letter from the Complainant or her representative simply seeking clarification as the appropriate entity to be named. The failure of the Complainant or her representative to take the said step of making an enquiry cannot be blamed upon the Respondent itself, who never received any correspondence or enquiry whatsoever from the Complainant’s representative. The suggestion by the Complainant’s representative that they are...