THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2010-168
PARTIES
Orlawski and Sierzanski
(represented by Richard Grogan
& Associates, Solicitors)
v
John Murphy
File References: EE/2009/793 & 794
Date of Issue: 9 September 2011
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - race - conditions of employment - training - discriminatory dismissal
1. Dispute
This dispute involves a claim by Mr. Orlowski and Mr Sierzanski (hereafter "the complainants), that they were (i) discriminated against by Mr John Murphy (hereafter "the respondent") in respect of their training and conditions of employment on grounds of race, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 (hereafter "the Acts") and contrary to section 8 of those Acts and (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds of race.
2. Background
2.1 The complainants referred their complaints under the Employment Equality Acts, 1998 to 2011 to the Director of the Equality Tribunal on 3 November 2009. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 24th June 2011 to me, Elaine Cassidy, an 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 in June 2010. No submission was received from the respondent. As required by section 79(1) of the Acts and as part of my investigation, I held a hearing of this complaint on 13th July 2011 and both parties attended. The respondent, who was unrepresented, requested additional time to submit documents. This exchange of documents concluded on 24 August 2011.
3.0 Preliminary Issue
3.1 The complainants' representative withdrew all aspects of the claim at the oral hearing with the exception of discriminatory dismissal and failure to provide a contract. At the oral hearing these matters were heard in full. However near the end of the hearing, the respondent, who was unrepresented, stated that he had never been the employer of the complainants. He was personally named as the respondent in this case. He stated that the complainants had been employed by the company Bailey Glazing Ltd, trading as Glazing Solutions. Subsequent to the hearing he provided the Tribunal with documents to demonstrate that the complainants had indeed been employed by Bailey Glazing Ltd. These documents included evidence of the pay cheques to the complainants, which were all made by Bailey Glazing Ltd and copies of the contracts (which are of limited value as they are limited standard form documents with no requirement for counter-signature by the employee). Nevertheless, one of the complainants, Mr Orlowski, did agree that he had been given this document (to assist him obtaining a bank loan) and it is clear from the document that the company name is Bailey Glazing Ltd, trading as Glazing Solutions.
3.2 I am satisfied that the complainants clearly identified John Murphy as the respondent on referral of this complaint to the Equality Tribunal. I am satisfied that the onus is with the complainant to identify the correct respondent in cases where he/she is seeking redress under the Acts. 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".
3.3 There was no evidence offered that the respondent had tried to mislead the complainants as to the name of their employer. The complainants have been represented at all times. On the basis of the above, I find that there is no evidence that Mr Murphy was the employer of the complainants and I am satisfied that proceedings have issued against the wrong respondent.
4. Decision
As the incorrect respondent is named, I have no jurisdiction to proceed further with this investigation.
______________
Elaine Cassidy
Equality Officer
9 September 2010