EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-113
PARTIES
Jonathan Naylor
(Represented by Liam Bell BL, instructed by Michael Finucane Solicitors)
-AND-
Pemberley Catering Limited (Strike Off Listed)
& Frontline Asset Management Limited (In Receivership)
File Reference: EE/2012/428
Date of Issue: 2nd August 2016
1. DISPUTE
1.1 This dispute concerns a complaint of discrimination on the grounds of gender and age under the Employment Equality Acts (hereinafter also referred to as ‘the Acts’), arising from the Complainant’s employment with the Respondent.
1.2 The Complainant referred the aforesaid complaint under the Acts to the Director of the Equality Tribunal and it was received on 14th August 2012. On 21st July 2016, in accordance with his powers under Section 75 of the Acts, the Director General of the Workplace Relations Commission delegated the case to me, Aideen Collard, an Adjudication / Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts, on which date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to a hearing on 25th July 2016. Although the Complainant had submitted his own complaint form and submission without representation, he was legally represented at the hearing. The Respondents did not engage with the processing of this complaint other than with communications confirming that they were in receivership and/or being wound up. On the morning of the hearing, a former Director of both of the Respondents rang the Workplace Relations Commission to confirm that neither he nor a co-Director would be attending the hearing and the Second-named Respondent was a stranger. The First-named Respondent is listed as ‘Strike Off Listed’ and the Second-named Respondent as in ‘Receivership’. Both Respondents had the same registered address and common Directors. I indicated that I would be relying upon relevant statutory provisions and case law.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission (hereinafter ‘WRC’) on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.
2. PRELIMINARY ISSUES
2.1 The Complainant had submitted claims of both unfair dismissal under the Unfair Dismissal Acts and discriminatory dismissal on the grounds of gender and age under the Employment Equality Acts arising from his dismissal by the Respondent/s on 27th February 2012. The unfair dismissal claim was heard by the Employment Appeals Tribunal on 6th March 2014. There was no appearance on behalf of the First-named Respondent. As a preliminary issue, the Employment Appeals Tribunal determined that the First-named Respondent was the Complainant’s employer having heard from representatives of the Second-named Respondent. By Decision UD1357/2012, it also upheld the Complainant’s claim of unfair dismissal and awarded him €80,000, of which €34,000 was recovered from the Social Insurance Fund.
2.2 As previously indicated in correspondence to the Complainant, the Equality Tribunal / WRC does not have jurisdiction to hear a complaint of discriminatory dismissal in circumstances where the Employment Appeals Tribunal has begun a hearing into the same dismissal under Section 101(4) of the Acts. Section 101(4) of the Acts sets out the jurisdiction of this Forum to hear a discriminatory dismissal claim when a claim based upon the same facts has also been submitted to another forum:
“101(4) An employee who has been dismissed shall not be entitled to seek redress under this Part in respect of a dismissal if-…
(c) the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal.”
2.3 Counsel on behalf of the Complainant confirmed that he accepted that he could no longer pursue a claim of discriminatory dismissal in the circumstances and sought to have any other element of his complaint of discriminatory treatment on the grounds of gender and age in relation to conditions of employment under the Employment Equality Acts considered. He also submitted that the Directors and outfit of the Respondents appeared to be one and the same with the First-named Respondent paying the Complainant and the Second-named Respondent directing his work in the absence of a written contract of employment. On this basis, he asked this Forum to look behind the corporate veil of the Second-named Respondent and issue any award jointly and severally as against both Respondents, notwithstanding that the Employment Appeals Tribunal had determined the First-named Respondent to be the employer.
2.4 I noted that the Complainant had only ticked the ‘dismissing me for discriminatory reasons’ box on his claim form as the basis for his claim on the grounds of gender and age and had attached an identical narrative regarding ‘Specifics of Complaint’ as was attached to his claim of unfair dismissal. This narrative was primarily concerned with the circumstances leading up to the Complainant’s dismissal on 27th February 2012, both in terms of outlining the absence of any fair procedures and discrimination on the grounds of gender and age as he had been replaced with a younger and junior female colleague.
2.5 As it is well-established that the Equality Tribunal (now WRC) has discretion to amend a claim form as long as the general substance of the complaint remains the same, I indicated that I would hear the Complainant’s evidence of any other less favourable treatment on the grounds of gender and age.
2.6 In relation to the applicable time limits, Section 77(5)(a) of the Acts provides: “Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence”, extendable to 12 months for reasonable cause under Section 77(5)(b). Section 77(6A) deals with the different forms of continuing discrimination or victimisation under the Acts and where the complaint of discrimination or victimisation refers to a series of separate acts or omissions sufficiently connected so as to constitute a continuum as asserted in the instant case, there must be such acts or omissions that fall within the requisite time limit in order for acts or omissions outside the time limit to be taken into account. To succeed, the Complainant must also prove less favorable treatment as compared with a person in a similar position but of a different gender or age pursuant to Section 6(1) and 6(2)(a) and (f) of the Acts.
2.7 The Complainant confirmed that he had been employed as a General Manager of a Hotel run by the Respondents from 21st August 2008 until his summary dismissal on 27th February 2012. For almost the entirety of his employment, the Hotel was in financial difficulty caused by the economic downturn. He had been subjected to numerous communications putting pressure on him to cut running costs and along with all the other staff, had taken a 5% pay cut. Originally he had reported directly to a female Financial Controller for the Second-named Respondent but this changed following the appointment of a younger female receptionist as in-house accountant without relevant qualifications and experience and who was subordinate to him. Thereafter the Financial Controller had deferred to and consulted with her in relation to matters concerning the management and running of the Hotel, copying her into all their emails. He felt continually undermined in this manner until the date of his dismissal when his younger female subordinate was left supervising the Hotel after his departure. He felt that he had been dismissed on the grounds of gender and age as he was viewed as too expensive and was replaced with a younger female.
2.8 In relation to specific incidents of alleged less favourable treatment, the Complainant indicated that he had been asked to take an additional pay cut of 12.3% verbally in April 2010 and in writing in March 2011 which would have put him on a par with his less experienced younger / female counterparts, General Managers of two sister Hotels also run by the Respondents. They had not been approached in relation to taking a similar pay-cut. Although never imposed, he felt that this pay-cut was hanging over his head. However, there was no evidence of any further threats of the proposed pay-cut and these incidents are clearly out of time. The Complainant also pointed to an exchange of emails in July 2011 between the Financial Controller and his more junior younger female colleague regarding the running of the Hotel which sought to undermine his authority. Even if I was to accept this as an ongoing situation, his junior younger female colleague was clearly not in a comparable situation for the purposes of the Acts. Whilst I have no doubt that the Complainant was poorly treated, taking his evidence at its height, I find that he has not identified any occurrences of possible discriminatory treatment within the requisite time periodand/or as compared with a person in a similar position but of a different gender or age.
3. DECISION
3.1 Based on the foregoing, I find that pursuant to Section 101(4) of the Employment Equality Acts, I do not have jurisdiction to investigate the complaint of discriminatory dismissal and as the Complainant cannot made out a prima facie case of any other discrimination under the Acts against the Respondents, unfortunately I cannot uphold this complaint pursuant to Section 79(6) of the Acts.
___________________
Aideen Collard
Adjudication / Equality Officer
2nd August 2016