EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-110
PARTIES
Agnieszka Michalak
-AND-
Business Mobile Security Services Limited T/A SENACA GROUP
(Represented by IBEC)
File Reference: EE/2014/062
Date of Issue: 26th July 2016
1. DISPUTE
1.1 This dispute concerns a complaint of discrimination on the grounds of gender under the Employment Equality Acts (hereinafter also referred to as ‘the Acts’), arising from the Complainant’s employment with the Respondent and in particular her dismissal on 20th August 2013.
1.2 The Complainant referred the aforesaid complaint under the Acts to the Director of the Equality Tribunal and it was received on 17th February 2014. On 7th December 2015, 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. Submissions had been sought and received from the Parties along with a copious volume of supporting documentation. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to a hearing on 15th December 2015. The Complainant represented herself and was assisted with the services of an interpreter and the Respondent was represented by IBEC. I outlined the relevant provisions of the Acts in layman’s terms. 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 ISSUE
2.1 As a preliminary issue, the IBEC Representative for the Respondent submitted that the Equality Tribunal / WRC did not have jurisdiction to hear this complaint pursuant to the provisions of Section 101(4) of the Acts. She confirmed that the Complainant had previously brought a claim of Unfair Dismissal arising from the same set of facts surrounding her dismissal on 20th August 2013 to the Rights Commissioner. This had been rejected in recommendation r-142829-ud-14/SR dated 17th July 2014 and was pending appeal to the Employment Equality Tribunal. Therefore, I had to consider such evidence as was necessary to determine whether this Forum had jurisdiction to hear the complaint pursuant to Section 101(4) of the Acts following decisions in Employee -v- Employer, UD909/2012 & Hughes -v- Dublin and Dun Laoghaire Training & Education Board, DEC-E2014-099 where similar issues arose.
2.2 Section 101(4) of the Acts sets out the jurisdiction of this Forum to hear a discriminatory dismissal claim when a claim based on 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-
(a) the employee has instituted proceedings for damages at common law for wrongful dismissal and the hearing of the case has begun,
(b) in the exercise of powers under the Unfair Dismissals Acts, 1977 to 1993, a rights commissioner has issued a recommendation in respect of the dismissal, or
(c) the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal.”
2.3 I reviewed all of the papers submitted herein including the Complainant’s complaint form and submissions and also heard her evidence regarding the nature of her complaint before this Forum. Having compared this with the summary of her evidence before the Rights Commissioner in respect of her claim of Unfair Dismissal pursuant to the Unfair Dismissals Acts 1977-2007, I am satisfied that this complaint comprises of identical facts as her claim of Unfair Dismissal. I further note that the claim to the Rights Commissioner was referred on the same date as the complaint herein being 17th February 2014, it was heard on 24th June 2014 and a decision issued on 17th July 2014. As set out aforesaid, Section 101(4)(b) of the Acts unequivocally provides that a Complainant who has been dismissed shall not be entitled to seek redress under the Employment Equality Acts in respect of the same dismissal where such a recommendation has issued. This is effectively an attempt to revisit the dismissal which was already upheld as being fair by the Rights Commissioner, by way of a claim of discriminatory dismissal. I further note that the Complainant was unhappy with the outcome and is/was pursuing an appeal in respect of that finding to the Employment Appeals Tribunal, being the appropriate course.
2.4 For the sake of completeness, I examined the Complainant’s evidence to ascertain whether there were any other facts which could give rise to a potential claim of discrimination on the grounds of gender under the Acts and were unconnected with her dismissal. Having taken her evidence at its height, I am further satisfied that any other matters complained of were fully investigated and not upheld under the Respondent’s Grievance Procedures, fell outside of the six month time limit for bringing a claim under the Acts, did not have any discriminatory element and were also aired before the Rights Commissioner. I further note that Solicitors acted for the Complainant in relation to these issues but were discharged.
3. DECISION
3.1 Based on the foregoing, I find that pursuant to Section 101(4) of the Employment Equality Acts, I am lacking jurisdiction to investigate this complaint and accordingly dismiss same pursuant to Section 79(6) of the Acts.
___________________
Aideen Collard
Adjudication / Equality Officer
26th July 2016