Complainant

Respondent

Parties

Rosina Gillespie

Business Mobile Security Services T/A Senaca Group

Complainant

Respondent

Anonymised Parties

Rosina Gillespie

Business Mobile Security Services T/A Senaca Group

Representatives

Mary Gavin (Hayes Solicitors) Alexandra Moore (Hayes Solicitors) Claire Bruton (BL)  John Gillespie  Martin O’Brien

Conor O'Gorman (IBEC)    Judy McNamara (IBEC)  Karl Elliott(IBEC)  Jim Farrell  Grainne Farrell Richard Brophy                              

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00004474-001

16/05/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00004475-001

16/05/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00004476-001

16/05/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00004477-001

16/05/2016

The Complainant was employed as a senior project administrator with the Respondent from the 26th March 2013 to the 26th February 2016. She alleges that she was unfairly dismissed by the Respondent contrary to Section 8 of the Unfair Dismissals Act 1977 and that she was a subject to discriminatory treatment and victimisation, contrary to Section 79 of the Employment Equality Acts, 1998 – 2015 and that her employment was terminated by reason of her civil status, contrary to Section 25 of the Equal Status Act 2000.

The case before you today concerns claims by Ms. RG (hereafter referred to as the Complainant) under the Unfair Dismissals Acts and the Employment Equality Acts. In her referral to the WRC the Complainant alleges that she was discriminated against on the grounds of her civil status. She is also claiming unfair dismissals.

The Respondent disputes these claims. In particular, the employer contends that the cessation of the Complainant’s employment does not fall within the definition of discrimination on the grounds of civil status set down in the relevant Acts and related case law.

The claim of “dismissal” does not meet the definition as set out in Section 1 of the Unfair Dismissals Act 1977 (as amended). No dismissal took place but rather the Complainant’s Specific Purpose Contract was concluded upon the achievement of the purpose specified therein, it is the employer’s position that the Complainant’s situation and endeavours do not meet the burden of proof to substantiate a claim of discrimination and that the claim of unfair dismissal is not well founded.

Background To The Organisation

The Respondent operates across Europe, providing a full range of security services in various sectors including, oil, gas & petroleum production, transport, freight & logistics, ports etc.

The Respondent was contracted to provide security services at the CG Project for S E&P Ireland. The CG Project was the most significant deployment in this sector the Respondent had taken part in. This resulted in the hiring of many staff to provide services to the Project during its construction phase.

The Respondent has always made it clear to employees who were hired to work on the project that the completion of the construction phase of the CG Project always meant it would have to scale back its operations.

Background To The Complainant

The Complainant commenced employment with the Respondent pursuant to a fixed term contract to run from March 26, 2013 – September 26, 2013.   The offer of employment was specific to the CG Project and was funded by S E&P Ireland.

Owing to the needs of the organisation, the Complainant was offered a specific purpose contract which commenced on September 27, 2013. The contract specified “your contract end date will be determined by the completion of works on the C Project”.

While the Complainant’s principle duties involved “the creation and implementation of a performance management and fair selection system….. Assist in retaining key skilled and trained staff that will remain to work long term on the project.” In addition, and as per the contract of employment the respondent did at times “assign other duties to [the Complainant]” duties which the Complainant carried out as per her contractual obligations.

The number staff employed by the Respondent on the C Project in September 2013 was 274.

During her employment, the Complainant was directly involved in the redundancies of staff employed on the project as the project came closer to completion. This included the drafting of a Performance Appraisal System to be used in the selection for redundancy process. Owing to disputes with SIPTU (including strike action by the union) the PAS was subject to negotiation from 2014 until October 2015.

In October 2015, with the assistance of a professional mediator the parties reached agreement on a PAS to be used in redundancy selection and agreed that outstanding issues would be subject to a labour court hearing.   The Complainant was intimately involved in this process from first to last. She acted as a primary representative of the Respondent in all discussions and decisions on the redundancy process. This gave the Complainant intimate knowledge that the project was coming to an end. So much so, that she enquired of Mr. JF if she had long left.

By January 2016 the number staff employed by the Respondent on the C Project was 37. On January 29, 2016, the Complainant was given notice of redundancy, informed of the redundancy payment due and her right of appeal.

In her response, the Complainant refused to work her notice period as she had been instructed to do.

Background Of The Issue

The Complainant appealed her redundancy in writing to the HR Department on February 4, 2016.

Her main grounds of appeal were:

• The was work available within the business
• Her HR colleague, RB had worked in a supportive function to her.
• The Complainant felt that she was more qualified and experience than Mr. B.
• This was not a redundancy situation. It was penalisation against the Complainant due to her “husband’s dispute”.

Ms. GF (Managing Director of SG) was designated as the Director of the Company who would conduct the appeal meeting. In this capacity, Ms F wrote to the Complainant on February 5, 2016 offering three dates when she could hear the appeal. Ms. F further advised that the company would acquiesce the Complainant’s request to be represented by her solicitor at the appeal.

The Complainant emailed Mr. F on February 8, demanding that she remove herself from the appeal meeting as she could not “be considered to be an appropriate person to hear [the] appeal”. She further accused Ms. F of not being “impartial and free of bias”. The Complainant then went on to suggest that the appeal should be held in her solicitor’s offices.

In her responding email of February 9, 2016, Ms. F sought to reassure the Complainant that she would be objective in conducting the appeal, she further declined the proposal that the appeal be held anywhere other than the Respondent’s head office.

The Complainant responded the following day by directly accusing Ms. Farrell of “continuing to discriminate against [her] in this unlawful manner”. In the same email the Complainant made the following allegations:

• Discrimination and victimisation of [her] as a result of [her] being married to another director
• There [was] no valid, lawful redundancy of [her] role.
• On-going discrimination and unlawful treatment.
• [Ms. F] had not conducted any appeals.
• Mr. M OB is a director who is by law required to act in the best interest of the company.

The Complainant concluded (email of February 10) by stating she would not engage in her own appeal unless Ms. F was removed from the process.

This exchange of emails continued that day when Ms. F emailed the Complainant again. Once more Ms. F assured the Complainant that the appeal would be “an unbiased and professional process….. in line with best practice”. She also assured the Complainant of her experience in conducting appeals.

The next day, February 11, the Complainant email Ms. F again. Now the Complainant asserted that “it beggared belief that [Ms. F] could continue to suggest an unbiased approach.” The Complainant directly accused Ms. F of having, for several months, “taking [her] anger and frustration out on [her], because I am married to J.”. She went on to assert Ms. F was humiliating her, depriving her of her right to earn a livelihood, “depriving [her] of [her] legal right to a lawful appeal.” This email concluded with the clear statement that she would not attend the appeal and would appeal to the High Court for a declaration that she be allowed “a clear entitlement to an appeal.” A data access request was also made at this time.

In response, Ms. F suggested that the Complainant reconsider her decision and that she would “remain available to her [the] appeal.” By February 24, the Complainant had still not engaged in the appeal, so the Respondent wrote to the Complainant informing her that her employment would end on February 24. She was offered another opportunity to have her appeal heard on February 29, 2016.

The Complainant attended this meeting “on a strictly without prejudice basis.” Despite the Respondent agreeing to facilitate the presence of the Complainant’s solicitor, she did not avail of her right to representation. Ms. F invited the Complainant to state her case for appeal, the Complainant declined to do so and instead chose to rely on the written submissions she had already made. The Complainant informed Ms. F that she wished to be reinstated. She was informed that her role was funded by SI and they had specifically requested that the Respondent terminate the Complainant’s role. An assertion was made by the Complainant that Mr. B’s role was also funded by SI and that when the Complainant was assigned other work by the employer her “contract became null and void.”

The outcome of the appeal was communicated to the Complainant by letter dated March 8, 2016. Ms. F’s decision was to uphold the redundancy.

Respondent’s Arguments

Unfair Dismissals Acts

We contend that the legitimacy of the redundancy situation in the Respondent’s Human Resource Department is self-evident. Due to the wind down of the C Project the work levels of HR declined exponentially.

It is a matter of fact that prior to being made redundant the Complainant was one of only two HR staff employed by the Respondent. Since the Complainant was made redundant the Respondent has only employed one member of HR staff. We feel that this clearly demonstrates that there existed a genuine redundancy.

The situation faced by the Respondent was that they had to make one of their two HR staff redundant. Both employees had equivalent training levels, both were employed at the same grade. One employee had a permanent contract with the Respondent, longer serviced with the Respondent and duties which extended across the whole company. The other had less service with the Respondent and a specific purpose contract, the purpose of which had been achieved and a contract which was funded by SI for a specific project.

We submit that given the circumstance with which the Respondent was faced, making the Complainant redundant was the Appropriate course of action. To have done otherwise would have resulted in either an overstaffed HR Department or the unfair selection for redundancy of another employee.

The Complainant’s contract of employment states clearly and unambiguously:

The Unfair Dismissal Acts shall not apply at the end of the contract expiry date or specified purpose contract expiry.

This clause was in both of the Complainant’s contracts with the Respondent. The Complainant’s submission has cited the EAT decision in the matter of Kinsella v. Wicklow County Council UD 302/2009 as being applicable in this case. It is our position that the judgement in Kinsella can be distinguished from the current matter in that Kinsella had not been issued with a contract for a period of 12 months.   Such did not happen in this matter, the Complainant never worked without a contract of employment. The length of the second contract was determined by an objective purpose, which has since been achieved.

Employment Equality Acts

The Complainant has alleged that the “discrimination” she experienced was because of her being married to her husband and not due to the status as a married woman.

It should be noted that the Complainant has not alleged that she was treated less favourably because of her civil status. Rather, she has alleged that she was treated less favourably than Mr. B because of who her husband was. Therefore, we respectfully submit that the claim of discrimination on the grounds of civil status is misconceived.

When she was employed in 2013 the Respondent was aware that the Complainant was married. This matter was of no interest to the Respondent as they do not hold nay view on the civil status of any employee.

The Complainant has cited the case of Interim Justitia v. McGarvey EDA 095. We submit that the decision in McGarvey can be distinguished from the facts of this case due to the following:

• In McGarvey the court found that it is “settled in law that the dismissal of a pregnant woman raises a prima facia case of discrimination”. The Complainant was not pregnant at the time of being made redundant.
• The redundancy matrix used was complex, subjective and opaque in McGarvey. In the current case the Complainant was intimately involved in the redundancy process for the Respondent and unlike the Complainant in McGarvey, the Complainant was employed on a specific purpose contract.

Gaelscoil Thulach Na Og v. Fitzsimons-Markey EED 049 has also been cited. We respectfully submit that this case is of no relevance in this matter in that the Complainant in Fitzsimons-Markey was directly and specifically dismissed because her child was a student at the school where she worked.

We note that the Complainant’s submission has not put forward any case law relating to claims of discrimination on the grounds of marriage/civil status. We draw the adjudicators attention to the following decisions:

·         Eagle Starr Insurance Co. (Ireland) Ltd. V. A Worker [1998] E.L.R. 306

·         44 Named Male and Female Complainants v. Superquinn DEC-E2003-003

·         Maruko v. Versorgungsantalt der Deutshcen Buhnen (C-267/06) [20087] E.C.R.I. I-1757

In all of these cases the claims involved /concerned the status of marriage and not the identity of who they were married to.

A UK case that is instructive in this area, however, is Hawkins v. Atex Group Ltd. [2012] IRLR 807.   The background to this case is that the Complainant was married to the chief executive of the Respondent company. She has for some time worked for the company as a contractor. It was the Respondent’s case that the chairman told the chief executive that from the end of 2009 he should not employ any member of his family in the business, because of concerns about perceived conflicts of interest and nepotism.

The Complainant became an employee of the company at the beginning of 2010, and her daughter with the chief executive also became an employee in late 2009. The Complainant was dismissed on the ground that her employment was in breach of the instruction to the chief executive, her daughter also being dismissed on similar grounds. The Complainant’s claim of discrimination on the ground that she was married, under s. 3 of the Sex Discrimination Act 1975 was struct out by the judge on the basis that it had no reasonable prospect of success. In dismissing her appeal, the judge held:

Less favourable treatment on the basis that the Complainant is married to a particular person fall within section 3, but only if the ground for the treatment is, specifically, that they are married, rather than only that they are in a close relationship which happens to take the form of marriage.

This decision, therefore, in effect states that prohibition on discrimination because of marriage only covers discrimination based on the fact of marriage per se.

We respectfully submit that the decision in Hawkins in perfectly analogous to the fact in the current claim before the Adjudicator.

Conclusion

On the arguments set out above, the employer contends that he cessation of the Complainant’s employment does not fall within the definition of discrimination on the grounds of civil status set down in the relevant Act and related case law.

The claim of “dismissal” does not meet the definition as et out in Section 1 of the Unfair Dismissals Act 1977 (as amended). No dismissal took place, but rather the Complainant’s Specific Purpose Contract was concluded upon the achievement of the purpose specified therein.

We ask the Adjudicator to find that these claims are not well-founded.

ADDITIONAL SUBMISSION

We maintain that the Complainant was not dismissed within the meaning of the Act as the Complainant’s employment was under a contract of employment for a specified purpose.   The claim of Unfair Dismissal is excluded by section 2, (2)(B);

dismissed where the employment was under a contract of employment for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment) and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.

The contract of employment is in writing, signed by both parties and provides that;

“The Unfair Dismissals Acts shall not apply at the end of the contract expiry date or specified purpose contract expiry”.

The cesser of the purpose of the contract is in writing:

“your contract end date will be determined by the completion of works on C Project.”

It remains our position that no dismissal took place and the Complainant’s employment ended as a result of the cesser of the aforesaid purpose.

In the course of the hearing it was asserted by the Complainant’s representative that the Specific Purpose Contract became a Contract of Indefinite Duration by effect in 2013/2014 (both years were claimed by the Complainant’s representative). It was also alleged that the completion of the pipeline in September 2015 constituted the attainment of the purpose even though the Complainant continued to manage the redundancies of staff on the project until her last day of employment. The last employee of the respondent finished working their notice period in February 2016, several weeks after the Complainant’s employment ended.

We wish to draw your attention to the Employment Appeals Tribunal’s findings in EAT in Casey v Dunnes Stores [2003] ELR 313. Here it was held that “the Complainant has the onus of proving dismissal.” It was further held by the Tribunal that “the standard of proof required was proof of the balance of probabilities and neither bald statements nor assertions by either party were to be assigned the quality of evidence or preferred.”

In Casey the EAT further held that; The Complainant had failed to meet this standard and to furnish adequate proof to satisfy the Tribunal that her dismissal was unfair despite the inability of the respondent to refute the assertions.   We respectfully submit as the Complainant cannot even specify on which date they allege that the specific purpose contract became a contract of indefinite duration they have failed to meet the standard set in Casey.

It is our position that as the Complainant is asserting the fact of dismissal by virtue of an implied change of contract it falls to her to prove this fact.

We reserve the right to adduce further evidence to rebut any factually incorrect assertions made by the Complainant and/or her representative in their further submission of documents.

The within Submissions are furnished pursuant to the claim of the Complainant that she was discriminated against on grounds of her civil status within the meaning of section 2(1) of the Employment Equality Acts 1998-2015, was dismissed by reason of her civil status, was subjected to harassment on grounds of her civil status and was the subject of victimisation actions by the Respondent in breach of the Employment Equality Acts. The aforesaid treatment culminated in the purported termination of employment of the Complainant notified to her on the 29th January 2016 that her position was being made redundant.

As will be seen from the within Submissions, it is the clear contention of the Complainant that the reason for her isolation and ultimate dismissal was by reason of her marriage and relationship with her husband, JG, who is a shareholder and director within the company who is currently engaged in a commercial dispute with other directors. The position of the Complainant is that the purported termination of her employment and unlawful treatment was directly connected with her marriage and or relationship with her husband and as such, is in breach of the Employment Equality Acts 1998-2015, being due to her civil status.

Background

The Respondent provides a range of commercial security services to clients across various business sectors such as cash in transit, static security guards, IRMS C Project, CCTV and monitoring systems and security consultancy.

The Complainant commenced her employment as full time senior project administrator within the Respondent on the 26th March 2013 pursuant to a fixed term contract commencing on this date with an end date of the 26th September 2013. Prior to the cessation of this fixed term contract the Complainant was furnished with a second fixed term contract of a specific purpose nature, same being executed on the 17th September 2013. The purpose of this contract was to work on particular systems until the completion of works on the C Project.

The specific purpose provided within the Complainant’s second fixed term contract was “the creation and implementation of a performance management and fair election system” to assist in identifying key staff to be retained long term in the C Project, which is one single stream of the Respondent’s business. However, the Complainant’s duties of employment were far more expansive, sophisticated and involved than this project and her duties of employment exceeded the specific purpose of her fixed term contract. This was particularly the case due to the human resources department within the Respondent being reduced to two employees, being the Complainant and a more junior employee with fewer qualifications than the Complainant, Mr RB.

The role of the Complainant involved transfer of undertakings issues, grievance issues, disciplinary and third party cases, end of year leavers, redundancies, etc.   She also carried out interviews, dealt with contracts of employment, payroll, audits, conciliation talks, Labour Court hearings and discovery documents. In fact, since September 2013, and during the currency of the purported specific purpose contracts of the Complainant, she also dealt with implementation of performance appraisal system, insurance claims, end of year clean down of company database, recruitment, contract/screening packs, handling employee concerns or queries and representing HR at inter departmental meetings and audits. Therefore, clearly the Complainant’s duties of employment were significantly beyond the “the creation and implementation of a performance management and fair election system” in the C Project. In fact, the Complainant, it is fair to say, undertook the full spectrum of HR services and for example dealt with redundancies in a different part of the business in 2013.

Commercial dispute

Since in and around November 2015, a commercial dispute has arisen between the shareholders and directors of the company, being Mr G, the Complainant’s husband, as shareholder and director. A commercial dispute arose culminating in a deadlock between two of the directors and shareholders on the one hand being MOB and JG and on the other hand GF and JF. GF is managing director of the company. The dispute is ongoing and at present the deadlock provisions within the shareholder’s agreement have been invoked.

Discriminatory treatment and victimisation prior to notification of redundancy

Following the commercial dispute arising and commencing in November 2015 very quickly the Complainant’s tasks and responsibilities, including standing within the Respondent, were diluted significantly. In fact, work was allocated to her subordinate Mr B by Ms F, which was deeply distressing and damaging to the Complainant’s reputation. For example, disciplinary processes or procedures invoked against a number of employees were provided to Mr B, and these were issues which in the normal course of events, the Complainant would have undertaken and was adequately well qualified for this. A number of grievances raised by employees were also dealt with by Mr B to the unjustified exclusion of the Complainant. The Complainant was also removed from staff queries on the implementation of overtime, was not involved in an employment equality claim brought by an employee, which ordinarily would have been the case, was excluded from recruitment of an employee for maternity cover, was not involved in recruitment for new drivers or technicians and was excluded from the implementation of the employment regulation order for the security industry. As a senior HR employee within the Respondent it is simply incredulous that the Complainant was removed from these duties and the only plausible explanation or reason for these actions, was the Complainant’s marriage to her husband. Interestingly no duties were removed from Mr B at this time and in fact his duties were increased. The reason for these duties of employment being unilaterally and unfairly removed from the Complainant was clearly due to her civil status, being married to and in a relationship with Mr G, in particular as no reasonable or legitimate reason arises for the actions on the part of Ms F who was engaged in a dispute with the Complainant’s husband. Therefore, these actions constitute discrimination and victimisation on grounds of civil status.

Given the lack of transparency and lack of justification for the unlawful actions of Ms F which were deliberate and targeted towards the Complainant on grounds of her civil status, this must give rise to facts on which discrimination can be inferred pursuant to section 85A of the Employment Equality Acts 1998-2015.

Termination of employment:

The events of the 29th January 2016, it is submitted, must be seen in the backdrop of the ongoing shareholders’ dispute, the connection and relationship of the Complainant with her husband on the basis of civil status, and the clear desire on the part of Ms F to deliberately target and isolate the Complainant.

In the absence of any warning whatsoever on the 29th January 2016 the Complainant was informed by Mr JF that she was being made redundant by the company. The basis for this purported redundancy was on the basis that her specific project for which she had been employed had ceased and or her fixed term contract had ceased. This is simply factually and legally incorrect. In fact, the Complainant was not on a specific purpose contract, this purpose having ceased during the currency of the contract and rather her contract was a permanent contract by virtue of the specific purpose of the contract having ceased as a matter of common law. In this regard the decision of Kinsella v. Wicklow County Council is relevant as in this case the Employment Appeals Tribunal held that as the purpose of the fixed term contract had ceased during its currency and the claimant in that case remained employed, the contract became a contract of indefinite duration at common law. This arises as a matter of common law outside of the provisions within the Protection of Employment (Fixed Term Work) Act 2003. Therefore, clearly the Complainant’s position had not terminated by reason of redundancy.

In addition, the purported reason provided by the Respondent for the termination of her employment did not correlate to the reality of the Complainant’s employment, her duties of employment, her expanded role and her standing within the Respondent. It failed to acknowledge her fully integrated role within the company, which would have been fully within the knowledge of Mr F and Mrs F.

There was an entire lack of transparency in the purported selection of the Complainant for redundancy and there was no attempt whatsoever to conduct a selection process between the Complainant and Mr B. This is in stark contrast to the Respondent’s usual approach to redundancies whereby employees are invited to interview for alterative positions, and if unsuccessful, are thereafter made redundant. This has been the Company’s typical approach as regards employees both on permanent contracts and those on fixed-term or specified purpose contracts. By way of example:

·         In August 2013, Ms ED and Mr JR were (both on specified purpose contracts) were both asked to interview for a new Operations Manager position, on the basis that the unsuccessful candidate would be made redundant;

·         In August 2013, Mr JOB and Mr BG (both on specified purpose contracts) were both asked to interview for a new Assistant Operations Manager position, on the basis that the unsuccessful candidate would be made redundant;

·         In September 2014, Ms AG and Ms SW (both on permanent contracts) were both asked to interview for a new HR Generalist position, on the basis that the unsuccessful candidate would be made redundant;

·         In September 2014, Mr JH and Mr PT (both on permanent contracts) were both asked to interview for a new Assistant Operations Manager role on the basis that the unsuccessful candidate would be made redundant;

Following the completion of the C Project, various members of staff involved in this project on fixed-term/specified purpose contracts were transferred to alternative roles in September 2015. By way of example:

·         Mr JR, C Operations Manager was transferred to the Technical Department;

·         Mr DB, C Operations Manager was transferred to the Terminal Department;

·         Mr BL, C Roster Administrator was transferred to the Terminal Department;

·         DR, HSSE Advisor was transferred to the Terminal Department;

·         JG and JF, Company Directors were transferred to Head Office;

·         BH, Security Consultant was transferred to Head Office.

No alternatives to redundancy were considered and the Complainant was not consulted prior to the decision to terminate her employment was notified to her on 29th January 2016.

Discrimination:

It has been clearly established in a number of cases pursuant to the Employment Equality Acts that where the processes used in effecting selection for redundancy are not transparent or clear, this can give rise to an inference of discrimination. In Interim Justitia v. McGarvey a lack of transparency in the selection process gave rise to an inference of discrimination on grounds of pregnancy. By analogy the Labour Court has found it necessary in the context of making selection for employment, that such selection processes are transparent and examinable to ensure that they are not painted by discrimination. In this regard the decision of Daughters of Charity v. McGinn is instructive and it is submitted equally applicable having regard to the selection process involved with the Complainant and or her position for redundancy. In addition, the selection process breached the established redundancy procedure within the Respondent being last in first out and or holding an interview pre-selection for redundancy. In addition, the Complainant had significantly more experience and more qualifications than Mr B. It is submitted that these facts are facts from which discrimination on grounds of civil status can be inferred in the context of conditions of employment and a discriminatory dismissal on grounds of civil status by reason of the selection for redundancy on the part of the Complainant, It is undoubtedly the case that if the Complainant was not married to her husband or had a relationship with him, then she would not have had her employment terminated, her duties of employment reduced and would not have been treated in a disrespectful manner in the way in which her purported redundancy was handled. It is clear, therefore, that an employee of a different civil status to the Complainant would have been treated in a more favourable manner and/or not the same manner as the Complaint, such that an inference of discrimination and breach of section 6(2)(c), section 8(6) and discriminatory dismissal for the purpose of section 82 of the Act.

In addition section 8(6) of the Employment Equality Acts clearly provides that any less favourable treatment in relation to redundancies can constitute discrimination for the purpose of the Acts. In this regard the failure on the part of the Respondent to provide its well-established redundancy selection process falls within the realm of such discrimination and breach of the legislation. The Respondent failed to consider performance rating and there was no interview with the Complainant prior to her purported selection for redundancy. In addition, the Complainant has been subjected to discrimination on grounds of civil status in terms of equal pay and/or conditions of employment in circumstances where the Respondent has failed to discharge an ex-gratia redundancy payment, same being established within the Respondent and having been discharged to approximately 22 employees within the Respondent who had their employment terminated between 2015 and the end of January 2016. This provides further evidence of discrimination on grounds of the Complainant’s civil status.

In addition, the Complainant was discriminated in the context of conditions of employment in the manner in which her redundancy was purportedly affected. The Complainant, following the discussion with Mr F, made it quite clear she was willing to work until the 19th February 2016. This was a reasonable approach on the part of the Complainant in circumstances where she was notified of her purported redundancy on the 29th January 2016. In fact, instead the Complainant was subsequently told by Mr F that she was required to leave her employment that day and return all company property to include laptops and mobile phone as her notice would be paid in lieu. This caused significant distress and upset to the Complainant and constitutes further evidence of discrimination on grounds of her civil status as other employees with different civil statuses were permitted to work for a number of days following their notification of redundancy.

Victimisation post notification of redundancy

The Complainant furnished a letter of appeal of redundancy by email dated the 4th February 2016. In this letter, she clearly made reference to the termination of her employment and to treatment being on the basis of her marriage to her husband. Therefore, it is submitted for the purpose of section 74(2) of the Employment Equality Acts, this constitutes a protected act.

Thereafter it is submitted the Complainant was subjected to victimisation on the part of the Respondent in terms of the continued insistence on the part of the Respondent who appointed Ms GF to conduct the appeal itself, in circumstances where the Complainant had made clear reference to issues and grievances relating to Ms F as part of her grounds of appeal furnished in writing. In addition, Ms F was not a suitable person to conduct the appeal by reason of her animosity towards the Complainant and having been guilty of discriminatory behaviour towards the Complainant. In those circumstances Ms F ought to have recused herself but refused to do so for no good reason. It is submitted the failure on the part of the Respondent to permit the appointment of an independent adjudicator or investigator, which was a reasonable request on the part of the Complainant in circumstances where the letter informing the Complainant of her redundancy and her right to appeal this decision of 29 January 2016 made reference to a director or independent person conducting the appeal, constitutes victimisation of the Complainant.

The Complainant made numerous requests by emails in February 2016 to Ms F to recuse herself from the appeal, and in particular made reference to discrimination and victimisation within these emails, evidencing further protected acts as prescribed by section 74(2). In spite of such provision being made for the appointment of an independent person within the appeal letter, the Respondent continued to victimise the Complainant and failed to allow her contractual entitlement or reasonable entitlement to an independent investigator to conduct the appeal in a fair and impartial manner. In fact the contention of Ms F that regardless of any disputes with any other individuals she could assure the Complainant of objectivity, is simply incredulous at best. The Respondent insisted upon Ms F hearing the Complainant’s appeal and she was provided with an unfair and pre-ordained appeal hearing which was deficient and inadequate. There is no reason an independent investigator could not have been appointed.

In addition, the Complainant was victimised towards the end of her employment as she was not permitted to work her notice period, as was the norm within the Respondent for departing employees, and rather was required to leave her place of work immediately when notified of her termination of employment. She was not permitted the opportunity to finish her tasks or provide an adequate handover. This treatment caused significant distress and stress to the Complainant. There was also an inexcusable delay in the Respondent furnishing the Complainant with her P45.

It is clear that the aforesaid actions of the Respondent were designed as retaliatory actions towards the Complainant for her having taken a protected act.

In terms of the claim of the Complainant that she has been subjected to discriminatory treatment, victimisation and breach of her entitlement to equal pay on grounds of her civil status, reliance is placed on the decision of Gaelscoil Thulach Na Óg v. Fitzsimons-Markey where the school employer was found to have discriminated on grounds of the Complainant’s family status in that case as it terminated her employment as the school secretary on the basis that it did not wish for a parent of a student within the school to be employed in this position. It is submitted this case is of clear and unobjectionable application to the facts of the within case and in particular the clear desire on the part of Ms GF to exclude the Complainant from her employment due to the Complainant’s relationship with her husband.

Redress

It is submitted that redress pursuant to section 82(1)(c) being an order for compensation for the effect of the acts of discrimination, discriminatory dismissal or victimisation should be awarded in the within proceedings. In particular, the adjudication officer is respectfully requested to have regard to the unacceptable and unlawful manner in which the Complainant was treated and the clear connection between the Complainant’s relationship with her husband and her termination of employment and earlier treatment.

The Complainant was deliberately isolated and excluded from her duties of employment in a deliberately orchestrated manner to cause the maximum upset and distress to the Complainant. The Complainant was left in a vulnerable, isolated and humiliating position. This caused her reputational damage and significant distress which resulted in her having to attend at her GP and at A&E on 20 January 2016 due to chest pains. It is submitted pursuant to the Employment Equality Acts compensation can be awarded for such distress pursuant to section 82 of the Acts. In this regard reliance is placed on the Labour Court decision in Fox v. Lee5 whereby the Labour Court held that not only the financial loss of the Complainant arising from discrimination can be awarded but also for the “distress and indignity which she suffered in consequence thereof, including the effects of bringing these proceedings”. The adjudication officer is respectfully requested to apply this dicta.

Given the deliberate forms of discrimination visited upon the Complainant, it is submitted the principles in Von Colson should be applied. Therefore, the sanction in the form of compensation should be effective, proportionate and dissuasive. In effect the Complainant was treated in the most egregious manner and undoubtedly the discrimination visited upon her will affect her ability to take up alternative employment by reason of the damage to her reputation. It is further submitted that this is a factor that should be taken into account in awarding compensation.

Further in relation to the victimisation to which the Complainant was subjected, it is respectfully submitted that the dicta of Dublin City Council v. McCarthy7 should be adopted where the Labour Court held that such an act “is very serious as it could have the effect of undermining the effectiveness of the legislation and is completely unacceptable”. In addition in Panuta v. Watters Garden World Limited8 the Labour Court held that victimisation should be viewed with “utmost seriousness” and “should be marked with a substantial award of compensation”.

Conclusions

It is therefore submitted that the Complainant has established facts from which discrimination can be inferred by virtue of her treatment from November 2015 onwards in the form of being excluded from her duties of employment, being purportedly selected for redundancy in circumstances where her position continues going forward, redundancy being purported effected in breach of established procedures within the Respondent including as to selection and ex-gratia payments, no interview being held, a more junior employee being retained, and no selection process or any consultation taking place with her. This is particularly surprising given the position of the Complainant within the company in a HR advisory capacity in senior management. In addition, subsequent to the purported selection of the Complainant for redundancy, she was treated in a disrespectful manner and discriminatory manner in terms of being required to leave her employment that day and was not permitted to work out a period of time as has been the case with other employees of different civil status. Finally, the treatment of the Complainant in the appeal or purported appeal of the termination of her employment constitutes victimisation on the basis of the breach of procedures and failure to provide a fair and impartial determination of the Complainant’s appeal.

As discrimination and victimisation has been established, it is submitted, the Respondent must demonstrate on the basis of cogent and rational that the Complainant was not subjected to discrimination and/or victimisation in order to rebut the burden of proof of discrimination and/or facts on which discrimination are inferred by the Complainant pursuant to section 85A of the Employment Equality Acts.

The Complainant reserves her right to raise further or better submissions, in particular following the receipt of documentation pursuant to the Data Protection Acts 1988-2003.

ADDITIONAL SUBMISSION

Introduction

These additional submissions set out the Complainants position that the purported termination of her employment by reason of redundancy was not a fair or genuine dismissal under the Unfair Dismissals Acts 1997-2015 and she was victimised pursuant to the Employment Equality Acts 1998-2015.

Claim pursuant the Unfair Dismissals Acts

The Respondent claim that the Complainant was employed under a “Fixed Term Contract (Specified purpose Contract) with S Group. The offer is based on the understanding that your contract of employment will commence on the 27th September 2013 and your contract end date will be determined by the completion of works on the C Project. Within this contract the Complainant’s role is defined as Senior Project Administrator “This is a highly confidential project and related to the creation and implementation of a performance management and fair selection system. The project will then assist in retaining key skilled and trained staff that will remain to work long term on the project”.

Notwithstanding this, the Complainant will show evidence to support her assertion that under the instruction of the Managing Director GF of the Respondent, her role was expanded beyond the parameters of her Fixed Term Contract and was far more extensive and sophisticated involving duties beyond those of the C Project. Her additional duties included a Senior Role within the Head Office HR Department covering all departments within the Respondent including Guarding, Cash In Transit, S Tech and Head Office. These are departments within the Respondent which cover all aspects of the Respondent’s business and do not touch upon or relate to the C Project.

In September 2013, during her second contract of employment, the Complainant was requested by Ms SW HR Administrator to provide assistance in relation to the cash in transit department. The Complainant sought and received approval from the Managing Director GF to deal with these queries. It is therefore incredulous that the Respondent seeks to rely on the wording of the Complainant’s purported fixed term contract in circumstances where her contract was not fixed term, had transmuted into a permanent contract by reason of the duties of the Complainant being expanded beyond its purported narrow scope. The HR Manager (ES) on her return from annual leave sent an email on the 3rd of October 2013 thanking the Complainant for her assistance with the Cash in Transit and Terminal queries. The Complainant’s role did not cease within these departments when the HR Manager returned from leave. In fact, we submit that the Complainant’s role expanded further into all departments of the Respondent on the request of the Directors.

It is not accepted that the Respondent is entitled to assert that no dismissal took place and that the Complainant was under a contract of employment for a specified purpose. Indeed section 2 of the Unfair Dismissals Acts defines dismissal as including the cessation of a fixed term contract. Given the wide-ranging duties of the Complainant, it is her position that her contract became a contract of indefinite duration in circumstances where she was working as a Senior HR Advisor across all departments for S Group and not solely and mainly on the C Project. In fact, the Complainant, it is fair to say, undertook the full spectrum of HR services and even dealt with recruitment and redundancies in a different part of the business and manual handling in 2013. The involvement of the Complainant in all HR aspects of the Respondent became particularly evident from 2013 onwards when there was a reduction in headcount within the Respondent.

Strictly without prejudice to the foregoing and if it is found the Complainant was engaged pursuant to a fixed term contract, as the works on the C Project ended, this must be construed against the Respondent by reason of the contra proferentum rule which continued post the termination of the Complainant’s employment, the apparent cessation of her contract as alleged by the Respondent cannot arise. The Respondent is still involved in the provision of staff for the terminal project which continues. The wording of works can be said to apply to all works on the C Project or just the aspect on which the Complainant worked. It must be interpreted in a generous and favourable manner towards the complainant, including the most favourable interpretation towards the Complainant where two interpretations are possible. In Analog Devices B.V. v. Zurich Insurance Company [2005] IESC 12, [2005] 1 I.R. 274, the Supreme Court considered the contra proferentum rule and took the general view that it applied only when a contractual provision was ambiguous or capable of more than one interpretation.

The Respondent claim’s that the Complainant’s position was terminated in and around January/February 2016 when the last remaining security staff operative on the Project were made redundant. This does not arise on the facts, and in particular given the Complainant continuing to work post this time and on other duties. The last phase of pipeline redundancies occurred in September/October of 2016. In fact, the Complainant was involved in these redundancies and in August 2015, the Complainant notified Mr JF, Director of the Respondent of the last phase of pipeline redundancies. Mr F instructs the Complainant to transfer the now only remaining employee within the HR department Mr RB from the pipeline to Core (Head Office) by the 1st of September 2015. As can be seen from emails sent between our Complainant and Company Director JF dated the 27th of August 2015 and the 30th of August 2015 this instruction is confirmed. This correspondence also supports the Complainants position that Mr RB and the complainant’s positions were both funded by SI under the C Project.

We submit that the Complainant’s payroll was also changed to a different department in December 2015 from Pipeline project to Core Head Office. The Complainant has payslips to corroborate this position and confirming this change in payroll. This demonstrates her role as being broader than involving duties pertaining to the C Project as the Respondent contends. The Respondent continues to maintain a Contract with SI under the Terminal and redundancies have continued up to recently, work which had been carried out by the Complainant but is now carried out by RB. Mr BB was less experience and qualified than the Complainant and she was described as Human Resources Manager. The Respondent disingenuously refers to an apparent selection process involving Mr B but this was not referred to at any stage during the Complainant’s purported redundancy or even her appeal. Its creditability must be called into question and in circumstances where the Complainant was not aware of any such selection process which the Complainant contends was not conducted, it was manifestly unfair.

The Respondents claim that Mr B is not a more junior employee and in fact was employed at the same grade as the Complainant. The Complainant refutes this in its entirety.

The Complainant can clearly show that she held the senior position within the Respondents HR Department from 2013 to her termination date. In fact, on a number of occasions, our client was the one who arranged the HR meetings, he requested her assistance as her experience as the more senior member of the team. In fact, the Complainant handled TUPE, Grievances, Disciplinary, discovery for Shareholders Dispute, Payroll Audits, all redundancies (CMS, Guarding, Terminal, Head Office), insurance issues while Mr B did not handle any of these. Following the shareholders dispute in November 2015, the Complainant was not included in any of these important issues which she had been previously before the shareholders dispute.

From the beginning of 2013, the Complainant as a Senior HR Advisor gave instruction to Miss SW, Ms AG and to Mr RB in their roles of administrators within the HR Department. It was only after the resignation of AG HR Officer and ES HR Manager in May 2015 that Mr B’s role expanded within the HR Department. Prior to this his role was administrator for staff licences under the Private Security Authority. The Complainant submits that she instructed Mr B on his administrative support tasks. There is simply not evidence to suggest that the two were working together on the same pay scale and grade. This is not factually correct and the Complainant refutes this in its entirety.

Following the shareholder dispute the complainant’s role was stripped of her and her tasks were given to Mr B a junior member of staff. In fact, correspondence was issued where Ms ES the previous HR Manager informed all departments of the breakdown of responsibilities within the HR Department when she and AG were due to depart from the Company.

In order to highlight her extensive role, Mr JF requested the Complainant to invoice Mr B’s redundancy cost to the Pipeline Project for SI to pay in August 2015. The Complainant reviewed Mr B Salary and can confirm that he was paid a weekly Salary of €615.20. We have evidence to support Mr B’s gross earnings at the time. We submit that at that time his salary was still funded by SI. There is evidence that Mr JF sent an email to BL from SI which included Mr B redundancy cost. In terms of the salaries, both the Complainant and Mr B were on different salaries. The Complainant’s Salary was €864 per week. We submit that the Complainant held and was paid for a more Senior position in comparison with Mr B.

The Respondent claim that “they had to make one of their two HR staff redundant. Both employees had equivalent training levels, both were employed at the same grade”. If the Respondents believed that the Complainant and Mr B were of a similar grade why did they not use normal company redundancy selection procedures of Interview Selection, a process that was used 18 months prior within the same HR Department? This is most unusual that that Company did not follow their own procedures and or convenient in circumstances where they did not carry out any selection process and our client’s role was selected for redundancy over the more junior inexperienced member of the team.

All redundancies are discussed and agreed at Board of Directors Level, yet the Respondent cannot show any evidence that the Board discussed or agreed that the Complainant position should/would be selected for redundancy. Please refer to witness testimony from Company Director MOB and JG. We submit that JF and GF did not discuss the Complainant’s redundancy with them the two other directors in the Company. On the 30th of August 2015 the Directors of the Respondent are notified of RB’s role becoming redundant from the Project. This would be the normal practice and the Respondent will always notify the Respondent regarding redundancies in the Respondent.

It should be noted that prior to the shareholders dispute arising, the Complainant had a close and amicable working relationship with all Company Directors and the Directors requested that our Complainant’s was involved in all aspects of HR. However, when the Shareholders dispute commenced GF treated the Complainant with contempt and published her grievance against the Complainant through emails she CC’d to other staff members undermining our Complainants position within the business.

At the hearing before the Adjudicator, the Respondent asserted that prior to her redundancy she asked “if she had long left”. This is simply untrue and the Complainant completely refutes this. The Complainant worked under the understanding that her role was permanent within the Respondent HR Department. This was discussed between the directors GF, MOB, JG and the Complainant during lunch meetings. In fact, prior to the previous HR Manager resigning, she formally notifies all departments of the Complainant role within the Respondents HR Department.

The Respondents claim that the Complainant’s role ceased with SI when they stopped paying her hours. The billing of the Complainant’s hours to SI was a costing exercise only and would transfer to head office when SI ended the payment, as per the process with RB, JF, JG, JR, BH, MG etc. hours all transferred to head office when SI ceased payment. All staff worked in both Head Office and C Project, as did the Complainant’s role.

The Respondent state that the Complainant took issue with working her notice period. When in fact what the Complainant took issue with is the fact the Mr F had reneged on what was agreed during the redundancy meeting on the 29th of January 2016, that the Complainant should work until the 19th of February and would then start her four weeks of paid notice period (in lieu of working), this is normal process within the Company. Following her redundancy, she sent correspondence to Mr JF. Which the Complainant states “your letter referenced below is not an accurate account of the conversation we had this morning. As discuss I have planned meeting and other items which require my attention for the next couple of weeks all of which you asked me to attend/close out”.

The Complainant was only asking to be treated in the same fair manner that the 270 other redundant employees received from the Respondent. Yet, Mr F chose to treat the Complainant differently and unlawfully. By Mr F reneging on the original agreement made during the meeting on the 29th of January, his actions were too further agitate the Complainant and by association of her husband whom he was in dispute with.

The Respondent further acted to aggravate and discriminate against the Complainant by placing GF as Chair of her appeal hearing. A person whom is listed in the grounds for appeal as having harassed and discriminated against our Complainant. The Complainant’s concerns as outlined in various emails prior to the hearing date where proven to be justified when:

·         Mrs F failed to step aside as Chair following repeated requests to do so

·         Failed to fully investigate our Complainant’s grounds for appeal as outline in her appeal letter and subsequent emails.

·         Failed to outline on what grounds the decision to selection our Complainant for redundancy were upheld.

·         Failed to consider or offer alternative employment

·         Failed to answer our Complainants points raised during the appeal hearing on her role within the Head Office HR department and the fact that RB was also paid for by SI, his redundancy billed to SI, yet he was not selected for redundancy.

All of the above failing are a breach of normal company process which the Complainant has implemented on behalf of the Company for 12 redundancy appeals brought forward by other employees, yet the Respondents singled out our Complainant and did not afford our Complainant the same fair treatment.

Victimisation pursuant to the Employment Equality Acts

In addition to the submissions furnished the Complainant with the complaint form, it is noteworthy that a few months after the Complainant was made redundant another   employee Mr DT, the Chief Financial Officer raised a formal grievance complaint in April 2016. Mr RB, referred the matter externally for investigation. In fact, the Respondent engaged in an independent third party Mr BA to conduct the investigation. This seems at odds with the unreasonable and antagonistic position adopted towards the Complainant when she raised a grievance regarding her redundancy and treatment. She requested a fair and impartial hearing yet this was refused for no justifiable reason. Indeed, given the factual matrix in place at the time of the purported redundancy of the complainant, she had justifiable cause for concern at the ability to obtain an impartial hearing. The claim of victimisation is bolstered by the refusal of Mrs F to appoint an independent to hear appeal.

Conclusions

The Adjudication Officer is requested to make findings that the dismissal of the Complainant was unfair pursuant the Unfair Dismissals Acts and she was victimised for having raised an equality issue in breach of the Employment Equality Acts. The Adjudication Officer is requested to award significant compensation under both Acts.

CA-00004477-001: Unfair Dismissal Act, 1977

The Complainant stated that her employment was terminated by reason of redundancy. That the dismissal was not a fair dismissal under the terms of the Unfair Dismissals Act 1977.

The Complainant was employed by the Respondent under a fixed term specific purpose contract on the 26th March 2013.

This contract outlined the following:

“Type of employment

Please note this is a Fixed Term Contract with S Group. The offer is based on the understanding that your contract of employment will commence on the 26th March 2013 and your contract end date will be the 26th September 2013.

The Unfair Dismissals Acts, 1977 to 2007 will not apply to the dismissal which consists only of the expiration of that fixed term of your employment.”

Both sides signed acceptance of this contract on the 26th March 2013 and on the 22nd March 2013.

On the 27th September 2013, the Complainant was offered a second fixed term specific purpose contract of employment.

This contract outlined the following:

“Type of employment

Please note this is a Fixed Term Contract (Specified purpose contract) with S Group. The offer is based on the understanding that your contract of employment will commence on the 27th September 2013 and your contract end date will be determined by the completion of works on the C Project.

The Unfair Dismissals Acts, 1977 to 2007 shall not apply at the end of the contract expiry date or specified purpose contract expiry. Except in circumstances justifying immediate termination of your employment by the company and subject to the provisions of clause 1 of this contract which take precedence, you will be entitled to receive one month notice of the termination of your employment. You will be required to give the company a month’s notice of termination of your employment.”

“During the course of your employment it may be necessary to expand your duties, within the scope of your position. S Group reserve the right to assign other duties to you or change your function at any time it being understood that you will not be assigned duties that you cannot reasonably perform. Any changes to your duties and the reasons behind them will be fully explained to you.”

I accept that the Complainant was hired on a specific purpose contract for the duration of the C Project.   In addition, I accept that the Complainant’s contract of employment allowed the Respondent to “assign other duties to the Complainant”.

The claim of unfair dismissal is excluded by Section 2(2)(b)

“dismissed where the employment was under a contract of employment for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment) and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.”

The contract of employment is in writing, signed by both parties and provides that;

“The Unfair Dismissals Acts shall not apply at the end of the contract expiry date or specified purpose contract expiry”.

The cesser of the purpose of the contract is in writing:

“your contract end date will be determined by the completion of works on C Project.”

I find that the Complainant was not dismissed within the meaning of the 1977 Act, as the Complainant’s employment was under a contract of employment for specific purpose.

CA-00004476-001: Employment Equality Act, 1998 – Civil Status

The Complainant alleges that she was discriminated against on the grounds of civil status. She alleges a breach of section 2(1) of the Employment Equality Act, 1998.

The Complainant alleges that the reason for her isolation and ultimate dismissal was by reason of her marriage to her husband. The Complainant’s husband is a shareholder and director within the company and is currently engaged in a commercial dispute with other directors. The Complainant has stated that the alleged unlawful treatment that she suffered in the workplace was directly connected with her marriage to her husband and as a result the Respondent is in breach of the Equality Act by virtue of her civil status.

Based on the evidence presented at the hearing I find that the Complainant was employment by the Respondent since 2013 and that the Respondent was aware of the marriage to her husband. There is no evidence to support that the Complainant was discriminated against on the grounds of her marriage / civil status. The background to this particular complaint is based on a commercial dispute between her husband and other company directors and not on the fact that she is married to her husband.

CA-00004474-001: Employment Equality Act, 1998 – Victimisation

The Complainant alleges that she was victimised by the Respondent in a discriminatory manner.   She stated that she was treated in a disrespectful and discriminatory manner in terms of being required to leave her employment that day and was not permitted to work out a period of time as has been the case with other employees of different civil status.   The treatment of the Complainant in the appeal or purposed appeal of the termination of her employment constitutes victimisation on the basis of the breach of procedures and failure to provide a fair and impartial determination of the Complainant’s appeal.

The Respondent argued that the cessation of the Complainant’s employment does not fall within the definition of discrimination on the grounds of civil status as set out in the relevant Acts and related case law. The claim of “dismissal” does not meet the definition as set out in Section 1 of the Unfair Dismissal Act 1977. No dismissal took place, but rather the Complainant’s contract was concluded upon the achievement of the purpose specified therein.

I find that there is no evidence to support that the Complainant was discriminated against on the grounds of her marriage / civil status.

I also find that the Complainant was not dismissed within the meaning of the Act, as the Complainant’s employment was under a contract of employment for specific purpose.