DECISION NO: DEC-E/2012/55
PARTIES
CATHERINE KILLALEE and BARBARA LYNSKEY
(REPRESENTED BY SIPTU)
V
KEVIN WALSH AND ANDY O' TOOLE and KEVIN WALSH, ANDY O' TOOLE AND TOM LAWLOR
(REPRESENTED BY KEN STAFFORD MANAGEMENT CONSULTANCY SERVICES)
FILE NO'S: EE/2009/816 and EE/2009/870
DATE OF ISSUE: 1 May, 2012
1. Dispute
This dispute involves claims by Ms. Catherine Killalee against Messrs. Kevin Walshe, and Andy O'Toole and by Ms. Barbara Lynskey against Messrs. Kevin Walshe, Andy O'Toole & Tom Lawlor, that they were discriminated against on grounds of gender, marital status and family status, in terms of section 6(2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2008 and that they were dismissed in circumstances amounting to discrimination on the aforementioned grounds.
2. Background
2.1 The complainant's Ms. Catherine Kilalee and Ms. Barbara Lynskey referred complaints against the above named respondents under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 10 November, 2009 and 30 November, 2009 respectively.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 23rd of February, 2012 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. On 9th July 2010 a submission was received from the respondents raising a preliminary issue as to whether the correct respondent has been named in respect of the above claims. As required by section 79(3A) of the Acts and, as part of my investigation, I proceeded to a hearing on this preliminary issue on 26th March, 2012.
3. Summary of respondent's case
3.1 The named respondents, Messrs Kevin Walshe, Andy O'Toole & Tom Lawlor submit that they are not the correct respondents in these claims as they are not the employer of the complainants. It is further submitted that the complainants were employed by Dollard Packaging Limited. In addition, it is submitted that the named respondents Messrs Kevin Walshe, Andy O'Toole & Tom Lawlor are merely employees of Dollard Packaging Limited.
4. Findings and Conclusions of the Equality Officer
4.1 Preliminary issue - whether correct respondent has been named
The issue for decision by me in relation to this matter is whether or not the complainants were employees of the respondent, in terms of section 2 of the Employment Equality Acts, 1998 to 2008 and therefore, have the locus standi to maintain their 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.
4.1.1 It was submitted on behalf of the named respondents that they are employees of Dollard Packaging Limited and that the complainants in these cases are also employees of Dollard Packaging Limited. The named respondent advised the hearing that the correct respondent in these cases is in fact Dollard Packaging Limited. The named respondent went on to state that the complainants had previously brought claims against Dollard Packaging Limited in the Employment Appeals Tribunal, and produced documentary evidence to this effect. The named respondents advised the hearing that, on that occasion the complainants had named Dollard Packaging Limited as the correct respondent so there was no reason for them not to name Dollard Packaging Limited as the respondent in these proceedings, as the complainants were clearly aware of who their employer was. The named respondent went on to state that there was no employer employee relationship between themselves and the complaints.
4.1.2 The first complainant, Ms. Catherine Kilalee, in her EE1 form identified the respondent as Messrs Kevin Walshe and Andy O'Toole. The second complainant, Ms. Barbara Lynskey, in her EE1 form identified the respondent as Messrs Kevin Walshe, Andy O'Toole & Tom Lawlor respectively. The complainants at the hearing did not dispute that they were employed by Dollard Packaging Limited and upon questioning produced a contract of employment for Ms. Barbara Lynskey and Notifications of redundancy (RP50) for both complainants with Dollard Packaging Limited named as the registered employer. The complainants accepted that Dollard Packaging Limited is their employer and is also the correct respondent in these claims.
4.1.3 The complainants, at the hearing acknowledged that Messrs Walshe, O'Toole and Lawlor were named as the respondents on the relevant EE01 forms but stated that the address given for the named respondents was that of Dollard Packaging Limited. The complainants argued that this address was sufficient to identify Dollard Packaging Limited as the respondent even though Dollard Packaging Limited was not mentioned in the address. The address given is Unit 6/11 Ekland Park, Malahide Road Industrial Park, Malahide Rd, D 17.
4.1.4 I am not satisfied that the inclusion of a company address is sufficient to uniquely identify Dollard Packaging Limited as the respondent in these claims, when it has not been named as the respondent, as a company could at any point change its address. In addition, another company or individual could take up residence at this address and would not then be considered the correct respondent for any claims against a company previously at that address. Conversely, if Dollard Packaging Limited had been named as the respondent in these or other proceedings a change of address would not mean they were no longer the correct respondent. For these reasons and taking into account the fact that the complainants and their representative were clearly aware of who their employer was, I cannot accept that the naming of Messrs Walshe, O'Toole and Lawlor, as the respondent in the EE01 forms, followed by the company addresss, can be considered as identifying Dollard Packaging Limited as the respondent in these claims.
4.1.5 The complainants at the hearing stated that the contact email given for the named respondents (Messrs Walshe, O'Toole and Lawlor) in the EE01 form included 'dollard packaging' in the email address, and argued that the inclusion of this email address is should be taken as identifying Dollard Packaging Limited as the correct respondent and not the named individuals.
4.1.6 Bearing in mind the fact that the complainants and their representative were clearly aware of who their employer was I cannot accept that the inclusion of an email address is sufficient to identify Dollard Packaging Limited as the respondent in these claims when it has not been named as the respondent.
4.1.7 I am satisfied that the complainants clearly identified the named respondents as the respondents on referral of these complaints to the Equality Tribunal. I am cognisant of the fact that the complainants have been represented throughout this process and I am satisfied that the onus is with the complainants to identify the correct respondent in cases where they are seeking redress under the Acts. In this regard 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."
4.1.8 Section 77 (4) of the Acts 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." It goes on to state that "The claim of an employee under s. 8 or s. 14A is a claim against that employee's employer not any other person". In the instant case there is no evidence to suggest that the named respondents were the complainants' employer and indeed the complainants at the hearing acknowledged that they, and the named respondents, were employed by Dollard Packaging Limited. In addition, the fact that the complainants had previously named Dollard Packaging Limited, as the correct respondent in other proceedings, I am satisfied that the complainants were at all times aware of who their employer was, and that this was not the named respondents. Having regard to the totality of the evidence adduced on this issue I find that the complainants were not "employee"s of the named respondents 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 named respondents were not the complainants employer in terms of section 2 of the Employment Equality Acts and therefore the complainants do not have the locus standi to maintain their complaints before this Tribunal in respect of the alleged discriminatory treatment of them on the grounds of gender, marital status and family status, in terms of section 6(2) and contrary to section 8 of those Acts.
_____________________
Orla Jones
Equality Officer
1 May 2012