ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000374

Complaint for Resolution:

Date of Adjudication Hearing: 11/02/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

(For purposes of clarity, the respondent in this case is referred to also as the ‘Transferor’ in the context of the change in the complainant’s employer)

Complainant’s Submission and Presentation:

The complainant began employment with a company caring for the elderly in their own homes in December 2004. Subsequently by virtue of a transfer of undertaking, her employment transferred to the current respondent in June 2013.

She commenced certified sick leave in December 2013.

In March 2014 she learned that the company (the transferor and respondent) was to be, or was being taken over by the transferee but, received no communication in relation to this from either the transferor or transferee.

She met a person who had been her employer and a Director of the respondent who said he thought she had either retired or was going to retire. She informed him that she had no intention of retiring and sought clarity about her employment status and her future. She had been submitting regular medical certification about her condition which indicated that she saw herself as in continuing employment.

This meeting happened on March 27^th 2015 as it happens but unbeknownst to the complainant a day after the transfer had actually taken place.

She instructed her solicitor to write to the CEO and Chairman of the respondent/transferor requesting that he would provide clarity about her employment status. She did not get any reply. There was then correspondence with the transferee on July 7^th, September 1^st and November 2^nd 2015.

The respondent’s solicitors responded on 26th May advising her of the transfer of undertakings and that she continued to be an employee albeit with the new entity which had taken over the business by virtue of the transfer of undertaking.

Respondent’s Submission and Presentation:

The respondent says that if the discriminatory act complained of took place at the meeting on March 27^th, the person she met, a Director of the transferor company had no longer any authority as the transfer had been effected the previous day.

It also says that any complaints raised by the complainant have failed to meet the onus of proof required by the Employment Equality Act in that she has not established a comparator against whom she is alleging unfavourable treatment on the grounds claimed of age or disability or any evidence of less favourable treatment.

It also says that the claim is out of time on the basis of the alleged acts at the meeting on March 27^th as the claim was submitted on November 2^nd.

Findings and conclusion

The complaint under the Redundancy Payments Act was withdrawn at the hearing.

I have considered all relevant submissions, oral and written that were laid before me.

There is no doubt that the treatment of the complainant who was in poor health and who was sixty-nine years of age left a great deal to be desired. As one of only two employees of the transferor company (the respondent) it would not have taken great effort, despite her being on sick leave, to advise her of developments in relation to the transfer of undertakings and provide her with whatever reassurances she required and was entitled to by law.

It appears that her, by then as it turns out former employer (the respondent) was somewhat unforthcoming at the meeting with her in March and it is hard to believe that he was not aware of the then current position. He had a clear obligation to advise her of the full positon, and particularly when he became aware of her intention to remain in employment (albeit on continuing certified sick leave).

However, under the terms of the Employment Equality Act the initial burden of proof falls on a complainant to establish a prima facie case of less favourable treatment on the grounds, in this case of her age and gender.

She failed to do so. No case was made out that she was treated less favourably on either of these grounds by reference to any other person.

Accordingly her complaint fails on those grounds.

I also find that the claim was not within time.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

The complainant has not established a prima facie case under the Employment Equality Act, and it is in any event not within the time limits and I dismiss her complaint.

Dated:   26^th March 2016