FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : JOHN MURPHY - AND - MAREK ORLOWSKI & JAN SIERZANSKI (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The two Employees appealed the Equality Tribunal’s preliminary Decision to the Labour Court in accordance with Section 83 of the Employment Equality Acts, 1998 to 2011, on the 29th September, 2011. The Court heard the appeal on the 10th February, 2012.
DETERMINATION:
This is an appeal by Marek Orlowski and Jan Sierzanski (hereafter referred to as the Complainants) against a preliminary Decision of the Equality Tribunal in their claims against John Murphy (hereafter referred to as the Respondent) under the Employment Equality Acts 1998 to 2011.
Prior to the hearing the Respondent applied to the Court to have the matter deferred. He told the Court that he is currently working outside the jurisdiction. He applied to have the case adjourned to a specific date when, according to the Respondent, he would be in Ireland. The Court decided not to adjourn the case and the Respondent was informed accordingly. The Respondent failed to attend the hearing nor was he represented.
In the Decision under appeal the Equality Tribunal decided, by way of a preliminary Decision, that the Respondent herein was not the employer of the Complainants. It held that at all times material to the claims the Complainants were employed by Bailey Glazing Limited. The Decision of the Equality Tribunal issued on 9th September 2011.
The Court was told by the Solicitor for the Complainants that after the Equality Tribunal decision was issued it came to his attention that Bailey Glazing Limited had been dissolved prior to the date on which the matter came before the Equality Tribunal. The Court was furnished with a printout of a Company Registration Office Report on Bailey Glazing Limited. This shows that the Company was truck-off the register on 23rd September 2007 and that it was dissolved on 14th December 2007. It seems clear that this was not brought to the attention of the Equality Officer.
The Court accepts the report of the CRO as evidence of the fact that Bailey Glazing Limited ceased to exist on the date of its dissolution. It appears that the business previously carried on by the Company was then taken over and carried on by the Respondent personally. It would appear that the Respondent then personally employed those previously employed by Bailey Glazing Limited, including the Complainants. Hence, at the time of the dismissal giving rise to this claim the Respondent personally was the Claimant's employer. Accordingly, he is the correct Respondent in this case.
Determination
The preliminary Decision of the Equality Tribunal is set aside. In accordance with Section 83(5) of the Acts, as amended by Section 26 of the Civil Law (Miscellaneous) Provisions Act 2011, the Court remits the matter to the Equality Tribunal for an investigation of the substantive issue.
Signed on behalf of the Labour Court
Kevin Duffy
14th February, 2012.______________________
JF.Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.