Complainant

Respondent

Anonymised Parties

Front Office Receptionist

Regional Newspaper

Representatives

Conor Quinn Solicitor

John Quinn & Company  

Kieran Kelly Solicitor

Flynn O'Driscoll

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00028940-001

10/06/2019

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

CA-00028940-003

10/06/2019

The Complainant's employment ended on 31 December 2018. She lodged her complaints on 10 June 2019. The hearing of her complaints opened on 30 September 2019 and was a face to face hearing.  The hearing was adjourned and re-commenced by remote hearing on 22 April 2021.

This remote hearing took place pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

Both parties were legally represented throughout the case.

The Respondent's solicitor attended at the hearing and filed submissions. Its case was that the Complainant had named the wrong employer in her complaint form.

No application was made by the Complainant to amend the name of the Respondent under Section 39 of the Organisation of Working Time Act 1997.

The Complainant's case is that she commenced employment with the regional newspaper on 2 January 1997. At that time the newspaper was owned by a named individual. Between that time and 2005 the newspaper was sold by several times to different entities. In 2005 the Complainant was employed by a named limited liability company.

In April 2014 there was another change in ownership for the newspaper and the Complainant submitted that the Respondent became her employer.

The Complainant worked 38 hours per week was in receipt of a gross salary of €583.00 per week.

She explained that she was never provided with a contract of employment nor a staff handbook.

She was not aware of the retirement policy. She turned 65 years of age on 6 November 2018.

She was not given an opportunity to appeal the Respondent's decision. She did write to the owner of the Respondent in 21 October 2018 but did not receive a reply.  She verbally begged the Managing Director to save her job. He was able to get a few extra weeks employment to postpone her termination of employment to the end of December 2018.

The Complainant was not entitled to the statutory old-age pension until November 2019.

The Complainant identified in her complaint form that she was discriminated against by reason of her gender and her age. She also claimed that the Respondent victimised her. She said that the Respondent treated her unlawfully by discriminating against her in Conditions of Employment and for Dismissing her for discriminatory reasons. She claimed that the Respondent treated her unlawfully by discriminating against her in dismissing her because she opposed discrimination. She claimed that the most recent date of discrimination was 31 December 2018.

The Complainant gave examples of employees who worked beyond their 65th birthday, of a man who worked as a General Manager and worked into his mid-70s. She identified a photographer who worked until he was 72. She named a man who worked in advertising until after his 65th birthday and a woman who worked as an advertising executive and she was over 65 years of age.  The Complainant could not recall one member of staff who was forced to retire on their 65th birthday. She submitted that there was no custom and practice for doing so.  She explained how she was insulted at what was proposed. Initially she thought they were joking when there was mention of organising a retirement party for her.

The Complainant held the belief that the Respondent forced her to retire so it would not have to pay her a redundancy payment.

She submitted that there was no justification for the Respondent's decision.

The Respondent explained the legal background to the transfer of the Complainant's employment from 2005 to 2014.

It submitted that it was not the employer of the Complainant.

It explained that the named Respondent acquired the shareholding of the Complainant's employer in 2014.  The acquisition of the shareholding did not trigger a Transfer of Undertakings or change of employer.  That company was now a subsidiary of the Respondent.

The Respondent submitted that all members of staff, including the Complainant were informed of the transfer of their employment to the company that the subsidiary company before it acquired its shares.

It pointed out that the Complainant in her submission to the WRC attached P60s for 2016 and 2017 showing the employer as the Respondent’s subsidiary, a separate legal entity. 

The Complainant was a member of that company's pension scheme and an application form was signed by the Complainant in May 2018 when the pension provider changed.

The documentary evidence provided to me included three P60s. Two of these were in the name of the company that the Respondent submits is the Complainant's employer. One P60 was in the name of the Respondent.

The Employers PAYE registered number was the same for all 3 P60s. 

All three P60s were in the Complainant's possession and were part of her booklet of documents submitted to me at the hearings.

The Respondent provided me with confirmation from Revenue that the Employer PAYE number belonged to the company that the Respondent submitted was the Complainant's employer.

This is the same Employer Registered Number that was inserted in the Complainant's P45.

The Complainant provided three payslips in the name of the Respondent's name.

It is quite common for businesses to have a different legal name from their trading name. The evidence provided to me by both parties was that the Complainant was aware of the various transfers of the business over the period of her employment.

The Complainant’s Booklet of documents contained a report from the Competition and Consumer Protection Commission which set out that the Company that the Respondent submitted was the Complainant's employer was a subsidiary of the Respondent and it owned a number of regional newspapers and listed the newspaper that the Complainant worked for as in its ownership.

At the time of the termination of the Complainant's employment she was in possession of all the Revenue documents listed above. A careful examination of them would have identified the conflicting names as her Employer.

The Complainant lodged just one complaint on 10 June 2019 against the Respondent. She later lodged another complaint under ADJ – 00024865 against the company the Respondent's submits is her employer.

While I appreciate that was confusing for the Complainant and very sloppy on the part of the Complainant's employer to have different names on different tax documents, the Complainant had within her possession documentary evidence that would have led her to ascertain the correct name of her Employer had she done so at the time.  I do not accept that the failure to name the Complainant’s employer was due to a technical, clerical or administrative error.

The error here arose due to a failure to ascribe any significance to the documents the Complainant had in her possession and while I have sympathy for her, I find that the Complainant was never employed by the Respondent. 

The Respondent named in this complaint is not the Complainant's employer. I have no jurisdiction to hear this complaint.  This complaint is not well founded.

Wrong employer named as Respondent.