EDA151

This is an appeal by Ms Ann Aziz (hereafter the Complainant) against the decision of the Equality Tribunal in her claim of discrimination against Ballarat Clothing Ltd (hereafter the Respondent) under the Employment Equality Acts 1998 to 2008. The complaint to the Equality Tribunal alleged discrimination on grounds of gender. The Equality Tribunal dismissed the complaint pursuant to s.77A of the Act, which provides as follows: -

• • (1) The Director may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

    (2)

    • (a) Not later than 42 days after the Director dismisses a claim under this section , the complainant may appeal against the decision to the Labour Court on notice to the Director specifying the grounds of the appeal.
    (b) On the appeal the Labour Court may affirm or quash the decision.]
  
  
  

Conclusions of the Court

The Complainant in her appeal states that she made a mistake when filling in the Form EE1. She states that she named two directors personally where she should have named the Company. She said that she misunderstood the form to require her to name the individuals who were the directors of the company for which she worked. She said that she had no legal training and that her mother who is her representative had no legal advice in the matter.

The Respondent states that the Complainant was issued with a contract of employment by Ballarat Clothing Ltd that clearly identifies the name of the employer. She commenced proceedings against two named individuals that are not her employer. She now effectively seeks to substitute another party that was not named in any papers filed by the Complainant when she commenced her complaint before the Equality Tribunal. It argues that the Court does not have the legal authority to substitute a third party for the two named respondents in this case. It argues that the Equality Officer’s decision is correct in law and in fact and should be upheld by the Court.

The Law

InO'Higgins -v- University College Dublin & Anor [2013 21 MCA]Hogan J held “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”.

The Complainant stated that it made a mistake when lodging the EE1 form with the Tribunal on 4^thNovember 2011. The Respondent told the Court that it notified the Tribunal of the mistake on 21 May 2012. The Equality Officer wrote to the parties on 6 February 2014 inviting them to a meeting on 6 February 2014 to consider the naming of the incorrect respondent. Both sides attended at that meeting.

In the course of the appeal hearing the Respondent’s representative told the Court that it was aware from early 2012 that the wrong party had been named by the Complainant on the EE1 Form. She further said that the Company, while it would be inconvenienced, would suffer no prejudice were the Court to allow the appeal.

In light of this acknowledgement the Court adopts the reasoning set out by Hogan J cited above and allows the appeal. Not to allow the appeal for such a technical reason where the correct respondent was aware from the commencement of the case that an error had been made and acknowledges it would suffer no prejudice by being named as the correct respondent would amount to a grossly disproportionate response and deprive the appellant of the substance of her right to have the complaint heard and decided on its merits.

Determination

The appeal is allowed. The decision of the Equality Officer is set aside. The matter is remitted to the Equality Tribunal. The Court so determines.



Signed on behalf of the Labour Court



Brendan Hayes
23rd January 2015______________________
AHDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.