THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS
Decision DEC - E2011-135
PARTIES
Elmars Rutkis
(Represented by Richard Grogan & Associates Solicitors)
v
John Cusack
File reference: EE/2007/030
Date of issue: 1 July 2011
Headnotes: Employment Equality Acts, 1998-2008 - correct respondent - change of name of respondent.
1. Dispute
1.1 This dispute concerns a claim by Ms Elmars Rutkis (hereafter "the complainant") that he was subjected to discriminatory treatment on the ground of his race in terms of Section 6 (2) (h) of the Act and contrary to Sections 8 of the Employment Equality Acts by John Cusack (hereafter "the respondent").
1.2 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on 23 January 2007. The complainant maintained that the respondent discriminated against him in relation to his conditions of employment. He also maintained that he was harassed and was discriminatorily dismissed. He also made a claim in relation to a collective agreement. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Deirdre Sweeney, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 31 March 2011, the date the complaint was delegated to me. A submission was received on behalf of the complainant. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 1 April 2011. Further information was furnished after the hearing by both the respondent and the complainant's representative. This process concluded on 20 June 2011.
2. Summary of the Complainant's Submission
2.1 The complainant, who is a Latvian national, states he was employed by the respondent as a bricklayer from 30 May 2006 until 13 November 2006. He submits that he did not receive a contract of employment, health and safety documentation or training. He submits that he was not paid in accordance with the Registered Employment Agreement for the construction industry. He contends that he was not joined into the Construction Industry Pension and Sick Pay Scheme. He alleges that at times he was not paid at all and received no payslips. He believes that no tax or social security was deducted from his pay. He also alleges that he was dismissed without any procedures being applied to him.
2.2 The complainant states that he believes that the respondent may attempt to allege that the respondent is not the employer in this case. He also states that an issue, as to the fact that the respondent would contend that he was not the employer, arose after the complainant brought a case to the Circuit court. The complainant points out that the respondent never appealed any decisions from the Rights Commissioner.
2.3 The complainant contends that the treatment of him constitutes unlawful discrimination on grounds of race contrary to the Acts and he seeks compensation for this.
3. Summary of the Respondent's Submission
3.1 The respondent did not submit a written submission prior to the hearing.
4. Summary of Hearing
4.1 At the hearing the complainant's representative withdrew all his claims with the exception of his complaint that income tax and social security were not deducted from his pay. His representative stated that he did not get a payslip and consequently was unaware that no deductions for income tax and social security were made. The complainant stated that payslips are not provided to employees in Latvia and he was unaware that he should be provided with one in this country. He had assumed that his employer was making deductions for income tax and social security. The complainant stated that he was a blocklayer and worked on a building site building houses. There were lots of people employed there. At least 20 people worked for the named respondent. They were mostly Polish, one Irishman and three Latvian including him. Most people were paid by cash, although sometimes people were paid by cheque. He was always paid by cash. He did not know whether deductions for income tax or social security were made from any other worker's pay. When he came back from holidays, which he thought was around the beginning of November, another man came and told all the workers (Irish, Polish and Latvian) they now were working for him. This man paid them but he delayed payment all the time. The last time he saw the respondent on site was in October 2006.
4.2 The respondent stated that the complainant did not work directly for him. He stated that he, the respondent, worked for Cusack O'Leary Construction Limited and that the complainant also worked for that company. He submitted his own P60 in evidence showing Cusack O'Leary Construction Ltd as his employer. He also submitted in evidence memorandum and articles of association of Cusack O'Leary Construction Ltd. In these the respondent is named as one of the subscribers. He stated that he recognised the complainant and that he thought that the complainant had been employed as an unqualified blocklayer by Cusask O'Leary Construction Ltd for about ten weeks. He had been asked for his PPS no. and had not provided it. After the hearing he confirmed that the complainant was not on the payroll as a PAYE worker for the weeks he was employed by Cusack O'Leary Construction Ltd. He also stated that the company finished working on the particular site that the complainant stated he was working on in October 2006.
4.3 At the hearing the complainant's representative stated that this was the first time that he had heard that it was being argued Cusack O'Leary Construction Ltd was the employer of the complainant. He stated that had the respondent stated earlier that he was not the employer the complainant could have been in a position to make a complaint against that company. He argued that the respondent had submitted no evidence that his client was employed by Cusack O'Leary Construction Ltd and that the respondent should submit tax documentation to confirm this. I pointed out to the complainant's representative that the submission furnished by him on 4 October 2008 suggested that questions had already been raised as to whether the correct respondent had been named. He was not in a position to provide details of when the complainant brought his case to the Circuit Court or how questions arose as to the correctly named employer.
4.4 After the hearing the complainant's representative stated that the claim before the Rights Commissioner issued against the named respondent but the Rights Commissioner put in the name of Cusack Construction Limited and there is no such entity. The complainant's representative also submitted a copy of a print out from the Companies Registration Office showing that Cusack O'Leary Construction Ltd was dissolved with an effective date of 14 July 2006. He argued that, as his client's employment did not end until 13 November 2006, or October 2006 on the basis of the respondent's contention that the company finishing work on that site then and as the company had been dissolved then, the only employer could be the named respondent.
5. Conclusions of Equality Officer
Preliminary issue - whether correct respondent has been named
5.1 The issue for decision by me in relation to this issue is whether or not the complainant was an employee of the respondent, in terms of section 2 of the Employment Equality Acts, 1998 to 2008 and therefore, has the locus standi to maintain his complaint before this Tribunal. In reaching my decision, I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as the evidence adduced at the oral Hearing. The complainant submits that the named respondent was his employer. The respondent submits that he was the not direct employer of the complainant and that Cusack O'Leary Construction Ltd was both his employer and that of the complainant. I note that this company was dissolved in July 2006. However I also note that the complainant stated that his employer changed when he returned from holidays which he thought was around the beginning of November. The respondent contended that the complainant worked for Cusack O'Leary Construction Ltd for possibly ten weeks from May 2006. The complainant has been unable to provide any evidence to support his contention that he was employed by the named respondent between May 2006 and November 2006 or at anytime up to November 2006 and is relying on the respondent to provide evidence in effect to dispute his contention.
5.2 I am satisfied that the complainant clearly identified the named respondent as the respondent on referral of this complaint to the Equality Tribunal. The complainant has at all times been legally represented throughout this process. I am satisfied that the onus is with the complainant to identify the correct respondent in cases where he is seeking redress under the Acts. In coming to this conclusion I am mindful of the Labour Court's finding in the case of@Resonance LTD v Rachel Coleman that
"....it is for the claimant to.... ensure that proceedings are issued against the correct respondent."
Section 77 (4) defines the respondent as
" the person who is alleged to have discriminated against the complainant or, as the case may be, who is responsible for providing the remuneration to which the equal remuneration terms relates or who is responsible for providing the benefit under the equality clause or who is alleged to be responsible for the victimisation".
I note that the High Court in Whooley v Millipore Ireland BV & Anor found that in the definition of the respondent as set out in Section 77(4) " the "person" alleged to have discriminated against must be an employer."
5.3 There is no evidence available to me that the named respondent was the complainant's employer. Having considered the matter I find that the complainant was not an "employee" of the respondent in terms of section 2 of the Employment Equality Acts, 1998 to 2008.
6. Decision
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts. I find that the complainant was not an employee of the respondent in terms of section 2 of the Employment Equality Acts and he therefore does not have the locus standi to maintain his complaint before this Tribunal in respect of the alleged discriminatory treatment of him on the grounds of race, in terms of section 6(2) and contrary to section 8 of those Acts.
_____________________
Deirdre Sweeney
Equality Officer
1 July 2011