The Equality Tribunal
Employment Equality Acts
Decision DEC-E2012-104
PARTIES
Radoslaw Kosinski
(Represented by Audrey Coen, B.L.
instructed by Hugh J. Ward & Co., Solicitors)
- V -
Compass Catering Services Ireland Limited
(Represented by Brian O'Sullivan, IBEC)
&
ISS Ireland Ltd.
(Represented by Michael McGrath, IBEC)
File references: EE/2009/791 & EE/2010/041
Date of issue: 10 August 2012
Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminatory Dismissal - Reasonable Accommodation - Disability - Race - Transfer of undertakings - Jurisdiction
1. DISPUTE
1.1 This dispute concerns a claim by the complainant that he was subjected to discriminatory treatment, discriminatory dismissal and a failure to provide reasonable accommodation by the respondents on the grounds of race and disability in terms of Sections 6(2) and 16 of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of the Acts.
1.2 The complainant referred a claim of discrimination relating to the first named respondent to the Director of the Equality Tribunal on 30 October 2009 under the Acts. The Tribunal indicated to the complainant that the complaint appeared to be out of time and sought clarification. The complainant submitted a 'corrected' complaint form on 23 December 2009. On 22 February 2012, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. Submissions were sought and received from the parties in advance of the hearing. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 25 April 2012. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SCOPE OF THE INVESTIGATION
2.1 At the start of the hearing the complainant declined to proceed with the complaint against the first-named respondent and then clarified this by indicating that they would not be presenting a case against the first-named respondent.
2.2 In addition, during the hearing the complainant indicated that the elements of the complaint relating to nationality were being withdrawn.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant submitted that he commenced employment with the first-named respondent in May 2005. Following a workplace accident in November 2006, the complainant was absent from work on long-term sick leave until his employment ceased in June 2009.
3.2 The complainant submitted that he was initially employed by the first-named respondent and that on 16 September 2008 he received a letter from his employer informing him that his contract was transferring to the second-named respondent under the Transfer of Undertakings legislation from 31 October 2008. This letter also stated that his employment would transfer on the existing terms and conditions which would recognise his original commencement date of employment, including his current rate of pay, holidays, sickness and the original terms set out in his Contract of employment.
3.3 The complainant received his P45, dated 31 October 2008, from his employer and was advised that he should forward it to the second-named respondent. The complainant submitted that he did this and awaited correspondence from them.
3.4 The complainant submitted that he received no correspondence from the second-named respondent and instructed his legal advisors to enquire about his terms and conditions of employment. By letter dated 11 June 2009, the complainant's legal advisors wrote to the second-named respondent seeking information concerning the complainant's employment. They responded by letter dated 23 June 2009 stating that the complainant's employment had not been transferred.
3.5 The complainant wrote to the first-named respondent in October 2009 seeking clarification and, on 14 November 2009, the first-named respondent confirmed that the complainant had in fact transferred over employment.
3.6 The complainant submitted that all other employees transferred over and further submitted that he was dismissed because he was on long term sick leave. Accordingly, he submitted that he was discriminated on the grounds of disability contrary to the provisions of the Acts, dismissed on the grounds of disability and further discriminated against on grounds of disability when the respondent did not make any assessment of his disability.
4. SUMMARY OF THE FIRST-NAMED RESPONDENT'S SUBMISSION
4.1 This respondent submitted that it is not the correct named respondent,
4.2 This respondent submitted that the complaint is out of time as the employment relationship ceased on 31 October 2008 and the complaint against it was lodged on 30 October 2009 and no extension of time was sought.
4.3 This respondent submitted that no dismissal, discriminatory or otherwise took place as the complainant was transferred as per the Transfer of Undertakings regulations.
5. SUMMARY OF THE SECOND-NAMED RESPONDENT'S SUBMISSION
5.1 This respondent submitted that if there was a change of contractor, such a change took place on or before 1 November 2008 and that the complaint referring to them was received on 23 December 2009 and accordingly any complaint is out of time.
5.2 At the time of the transfer of undertakings, this respondent sent clarification to the first-named respondent as to the scope and applicability of the transfer. The respondent submitted that it never employed the complainant as no transfer applied to the complainant.
5.3 This respondent submitted (in advance of the hearing) that a separate claim under the Transfer of Undertaking Regulations was pending before the Rights Commissioner and further that a complainant under the Unfair Dismissals legislation was also pending before the Employment Appeals Tribunal.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the complainant on was subjected to discriminatory dismissal and a failure to provide reasonable accommodation by the respondents on the grounds of race and disability in terms of section 6(2) and 16 of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of the Acts.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
Preliminary Matters
4.3 In order to consider this claim adequately, there are a number of preliminary considerations to be taken into account:-
- As no case has been presented at hearing against the first-named respondent, this element of the complaint fails
- As the element of the complaint related to discrimination on the basis of race has been withdrawn, this element of the complaint fails.
4.4 In order to consider the remaining elements of the complaint against the second-named respondent I must be satisfied, inter alia, that (a) an employment relationship existed; (b) the complaint was received in time by the Tribunal; and (c) a disability exists.
4.5 In relation to the first consideration regarding the existence of an employment relationship, it was submitted at the hearing that the proceedings under the Unfair Dismissals legislation before the EAT were withdrawn. Furthermore, in relation to the complaint under the Transfer of Undertakings Regulations, I understand that although the Rights Commissioner set a hearing, granted an adjournment to that hearing and set an additional date for a hearing, the complainant did not turn up for those proceedings. Accordingly, no clarification exists from a Rights Commissioner as to the existence or otherwise of a transfer of undertakings in relation to the complainant. The Acts do not provide for me to rule on whether a transfer of undertakings has taken place.
4.6 The evidence presented at hearing relating to the existence of an employment relationship was contradictory. A witness from the first-named respondent was adamant that a transfer of undertakings did exist, while a witness from the second-named respondent was equally adamant that one did not. The complainant gave evidence that he received payslips up to 31 October 2008 and also received his P45 on that date. He also confirmed that had not received any documentation substantiating his employment status with the respondent until he received the letter notifying him that he was not an employee (in June 2009). Evidence was also presented to the hearing that the P45's for all transferring employees were sent directly to the payroll section of the second-named respondent.
4.7 In circumstances where no documentary evidence exists linking the complainant to the second-named respondent, and having regard to the testimony of the witnesses, on the balance of probabilities, I am not satisfied that the existence of an employment relationship has been established. Accordingly this complaint must fail. On this basis the other elements previously identified by me in paragraph 4.4 above are moot.
5. DECISION
5.1 As no evidence was given at the hearing in support of the allegations of discrimination against the first-named respondent, I conclude this element of the investigation and find against the complainant.
5.2 As the complaint against the respondents in relation to the allegations of discrimination on the basis of race has been withdrawn, I conclude this element of the investigation and find against the complainant.
5.3 Having considered all the written and oral evidence presented to me, I find that complainant has failed to establish an employment relationship with the second-named respondent, and therefore the Tribunal has no jurisdiction to deal with this aspect of the complaint.
Conor Stokes
Equality Officer
10 August 2012