DEC-E2014-026

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Preliminary Decision DEC – E2014 – 026

PARTIES

Ms Ann Aziz (represented by Mrs Elizabeth Aziz)

and

Mr David Jones and Mr John Smyth (represented by IBEC)

File References: EE/2011/751

Date of Issue: 8th April 2014

Table of Contents

1. Claim.. 3

2. Conclusions of the Equality Officer 4

3. The Law on Misconceived Jurisdiction. 8

4. Decision. 9

Keywords: Preliminary decision pursuant to S. 79(3A) of the Employment Equality Acts – correct respondent – respondent company clearly and unambiguously stated on contract of employment – directors of respondent company not personally liable and not the correct respondents, as they are not the employers within the meaning of the Acts.

1. Claim

1.1. The case concerns a claim by Ms Ann Aziz that Mr David Jones and Mr John Smyth discriminated against her on the grounds of gender and age contrary to Sections 6(2)(a) and (f) of the Employment Equality Acts 1998 to 2011, in terms of access to employment, training, conditions of employment, including harassment, other discriminatory conduct, victimisation and victimisatory dismissal.

1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 4 November 2011. A submission was received from the complainant on 1 March 2012. A submission was received from the respondent on 23 May 2012. Additional submissions were then received from the complainant on 17 June 2012 and on 6 August 2013. On 3 February 2014, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. From a study of the papers on file, it became apparent that the respondents might have been wrongly identified by the complainant as her employers. The Equality Tribunal does not have any statutory powers to make a correction order in such a case. Accordingly, I held a preliminary hearing on this question pursuant to the provisions of S. 79(3A) of the Acts, on 19 March 2014. Both parties were in attendance. Subsequently, submissions were received from the respondent on 27 March 2014 and from the complainant on 2 April 2014 in respect of the Equality Tribunal decision DEC-E2013-163 Drabik v. Zandi t/a Moonlite Cleaning Services Ltd, which are discussed below.

2. Conclusions of the Equality Officer

2.1. The preliminary issue for decision in this case are whether the respondents were named correctly as the complainant’s employer, and therefore, whether I have jurisdiction to investigate the case.

2.2. The respondents stated in evidence that Mr Jones and Mr Smyth are the Directors of the company which employed the complainant, which was Ballarat Clothing Ltd. They stated that it would violate basic principles of company law if Mr Jones and Mr Smyth were to be personally liable for the alleged conduct of various staff members of the company, instead of the company as a legal entity. It further stated that the complainant’s contract of employment is clear on the fact that Ballarat Clothing Ltd was her employer, and that Mr Jones and Mr Smyth are not named on the document. The respondents relies on the Labour Court decision @Resonance v. Rachel Coleman, [EED0311] and the Equality Tribunal decision Gardiner v. Arutunyan [DEC-E2012-128].

2.3. The complainant’s mother as her representative made a lengthy oral submission on how poorly her daughter was treated in her job, and after the termination of her employment with Ballarat Clothing Ltd. It was clear from the manner of her evidence that the alleged poor treatment caused both Mrs Aziz and Ms Aziz great upset. Mrs Aziz went on to state that in her opinion, slander, libel and incitement to hatred took place in the context of her daughter’s treatment, before I interjected that the Tribunal has no jurisdiction at all to look into such allegations. The complainant herself stated that she had studied legal studies with distinction as part of her current third level studies and that she was confident that her circumstances were so exceptional that they justified the piercing of the corporate veil. I invited the complainant several times to state an argument as to why this was so, and to give me a citation of any precedent case law which would support such a position. I indicated to the complainant that I needed a more precise argument than the simple assertion that her circumstances were exceptional. The complainant then sought to resile from her earlier statement and stated that she was only trying to be friendly and was only trying to make conversation.

2.4. It then emerged that the complainant was relying on the Equality Tribunal decision Drabik v. Zandi t/a Moonlite Cleaning Services Ltd [DEC-2013-163]. In that case, the Equality Officer relied on the High Court decision O'Higgins -v- University College Dublin & Anor [2013 21 MCA] in which Hogan J held (and was so quoted by the Equality Officer) that “Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be). …In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts”.

2.5. The complainant’s representative also set some store in the fact that like the complainant in Drabik, she was not a lawyer and so could not advise her daughter on details of the law, as well as the fact that the complaint form shows the company address rather than Mr Jones’s and Mr Smith’s home addresses.

2.6. In the course of her description of how her daughter was treated during and after her employment with Ballarat Clothing Ltd, Mrs Aziz also mentioned that she tried repeatedly to meet Mr David Jones, and that this meeting was eventually granted. She stated that Mr Jones tried to phone her three times prior to the meeting, but that she didn’t not take the call, “because I knew it was him and I didn’t want to talk to him. I wanted matters in writing.” She also stated that in her opinion, it would have been Mr Jones’s role to tell her at the meeting which eventually took place that he was the wrong person to bring proceedings against. When I then asked whether she and her daughter had considered litigation at that point, she denied this in the strongest terms and said that they only considered litigation after the meeting went, from their perspective, badly, and when Mr Jones was allegedly rude to them. The purpose of the meeting, from the evidence of Mrs and Ms Aziz, was to acquaint Mr Jones with the poor conduct of the staff members who caused Ms Aziz difficulties in her employment. They also vehemently objected to my suggestion that maybe Mr Jones’s willingness to meet might have been a gesture of good will, and stated that “he was only there to show us up”. It is clear from Mrs Aziz’s evidence that she went to some lengths to obtain Mr Jones’s and Mr Smith’s names from the company.

2.7. Despite repeated attempts on my part to obtain an answer from the complainant as to how it came to be that Mrs and Ms Aziz chose to name Mr Jones and Mr Smith personally on the complaint form, and despite the fact that “Ballarat Clothing Ltd” is clearly set out on all copies of Ms Aziz’s employment contracts as employer in bold print, this was never answered by either Mrs Aziz or Ms Aziz in any clear fashion. Mrs Aziz handed me and the respondents a written submission at the end of the hearing, which I have studied. From reading it, it appears that she was of the belief that she needed to bring a complaint against the owners of Ballarat Clothing Ltd rather than the company. Also, when it was made clear at the hearing that there was no dispute that Mr Jones and Mr Smith are the owners of the business, both Mrs and Ms Aziz kept asking what the problem was. I stated repeatedly in response that the Directors of a company and the company itself are legally separate from each other.

2.8. From Mrs Aziz’s description of her search for their names, however, I am satisfied that naming the respondents wrongly as her daughter’s employers was not a simple error (like it may have been, for example, if no written contract of employment had been in existence, or because the complainant only knew the respondents by name but not their company), but rather, that it was a deliberate, if erroneous, decision on the part of the complainant. This error may possibly be related to the misunderstanding of the respective legal positions of the respondents as Directors and their limited company as Ms Aziz’s employer as outlined in the preceding paragraph.

2.9. The respondents’ subsequent submission on Drabik v. Zandi t/a Moonlite Cleaning Services Ltd points out that unlike in that case, there was never any confusion about who employed the complainant, as her contract of employment was at all times with Ballarat Clothing Ltd. The respondents further point out that the issue of the wrongly named respondent was raised by IBEC immediately upon receipt of the complaint, and not, as in Drabik, a week before the hearing. Last, the respondents’ position is that ignorance of the law is not a defence.

2.10. The complainant’s responding submission disputes that there is a problem with the correct respondent, as the respondents named above are indeed the owners of Ballarat Clothing Ltd. It further accuses the respondents of fabricating evidence, and raises accusations that the employment contracts the complainant had with Ballarat Clothing Ltd were fraudulent, on the basis that two contracts between the complainant and the company are in existence, one of which differs in its terms from the other. Accusations were raised that the respondents wish to evade their responsibility towards the complainant by “trying to hide behind the ‘Company’”. The point was raised that the Equality Tribunal raised a legitimate expectation that the case would go for a full hearing because the Tribunal Secretariat requested written submissions from both parties.

2.11. To address this last point first: The request for submissions from the Tribunal Secretariat is an administrative procedure which takes place before the delegation of a complaint to an Equality Officer, and which does not form part of an Equality Officer’s investigation. S. 79(3A) is very clear in giving the Director, or the Equality Officer to whom the matter is delegated, the power to investigate whether a complainant has complied with the statutory requirements relating to the referral of a complaint, or whether a complainant is an employee within the meaning of the Acts, or any other related question of law or fact, as a preliminary matter. Such questions of law or fact may only arise on foot of submissions from the parties. Accordingly, the making of a submission to the Tribunal cannot mean that it entitles the party who makes it to a full hearing of their complaint.

2.12. With regard to the other accusations levelled at the respondents I just wish to note that there is no evidence to support any of them. The respondents freely accept that they are the Directors and owners of Ballarat Clothing Ltd and have never sought to resile from this. Nor is there the slightest evidence that the contract of employment with Ballarat Clothing Ltd, which after all formed part of the complainant’s original submission, was in any way fabricated, as the complainant alleges, ex-post facto.

2.13. In terms of coming to a preliminary decision on the issue as to whether I have jurisdiction in this matter, and looking at the High Court case of cited in Drabik v. Zandi t/a Moonlite Cleaning Services Ltd, that is, O'Higgins -v- University College Dublin & Anor [2013 21 MCA] the words of Hogan J cited in paragraph 2.4 above must certainly weigh heavily. It is true that the dismissal of cases for misconceived jurisdiction pursuant to S. 77A of the Acts should be undertaken sparingly for the very reasons he cites. It is also true that the actual employer, Ballarat Clothing Ltd, was de facto on notice of the complaint and is therefore not prejudiced in the matter.

2.14. On the other hand, I cannot be blind to the fact that in his decision, Hogan J was addressing an issue arising from the rules of the Superior Courts. In his case, the issue of the correct respondent arose in the context of who was named on the Notice of Motion for the proceedings in the High Court. This is much different to the tightly circumscribed statutory powers (or lack of same, as the case may be) in a Tribunal of limited jurisdiction. The fact remains that I simply have no power in statute to make such a change, and that the respondents personally were not the complainant’s employers. I am also mindful that this means that if nevertheless I proceeded to investigate the complaint, I would be acting ultra vires to my powers under the Acts.

2.15. The question therefore now arises whether the within complaint is misconceived in law.

3. The Law on Misconceived Jurisdiction

3.1. A claim is misconceived when it is incorrectly based in law. In Keane v. Minister for Justice [1994 3IR 347], Lynch J found that the Minister had no statutory power to relieve Leitrim County Council of its duty to provide courthouse accommodation in Carrick-on-Shannon and that her direction to the council was therefore “wholly misconceived and invalid”.

3.2. I am satisfied that the within complaint falls squarely within the parameters of misconceived jurisdiction, in that the complainant, after considerable research but nevertheless erroneously, decided to name Mr Jones and Mr Smith personally as respondent rather than the company who employed her and was thus her employer and the correct respondent within the meaning of the Acts. I am also satisfied, from the copy of the employment contract which the complainant herself submitted, that Ballarat Clothing Ltd would indeed have been her employer within the meaning of the Acts. The Equality Tribunal, and I as an Equality Officer, lack all powers to correct such an error, and therefore I have no jurisdiction to investigate this matter.

4. Decision

4.1. Based on all of the foregoing, I make the following preliminary decision pursuant to S. 79(3A) of the Acts: That I dismiss the within complaint pursuant to S. 77A of the Acts, on the ground that it was brought against the wrong respondents and is therefore misconceived in law, and that I have no jurisdiction to investigate this matter.

______________________

Stephen Bonnlander

Equality Officer

8 April 2014

DEC-E2014-026