Complainant

Respondent

Parties

Clara  Farrell

Ian Lawlor & Newgrange Energy Limited

Representatives

Bebhinn Murphy B.L. instructed by Orla Troute of  Butler O'Hanrahan Lally D'Alton LLP

 Michael Devitt of Kieran Quigley & Co. Solicitors

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-00046514-002 & CA-00046513-002

04/10/2021

The complainant submitted two complaints to the Workplace Relations Commission on 4 October 2021 against Ian Lawlor and Newgrange Energy Limited under the Unfair Dismissals Act and the Employment Equality Acts. The claims under the Unfair Dismissals Act were withdrawn in advance of the hearing. Therefore, I am investigating claims under the Employment Equality Acts of discriminatory dismissal on the grounds of disability.

At the hearing on 10 August 2022 the respondent made a submission that neither Ian Lawlor nor Newgrange Energy Limited was the correct respondent. They stated that at all times the complainant was employed by Robert Lynch t/a The Energy Centre. I asked both parties to make further submissions in relation to this issue. These submissions were forwarded to the other party and they had an opportunity to respond to these submissions.

In making my decision I have taken into account all evidence given at the hearing and all written evidence given before and after the hearing.

Respondent’s Submission: The respondent submits the complainant commenced employment with Robert Lynch trading as The Energy Centre on 18 February 2019 and was an employee of Robert Lynch trading as The Energy Centre during the entirety of her employment. She was hired by Robert Lynch trading as The Energy Centre and her payslips were issued under the title of Robert Lynch Heating. The complainant’s dismissal letter issued from Robert Lynch trading as The Energy Centre and was signed by Robert Lynch.

Furthermore, the complainant emailed or hand delivered her timesheets to The Energy Centre at regular intervals. A contract referred to by the complainant, which she refused to sign, was issued by The Energy Centre. They say the complainant has failed to adduce or provide documentary evidence of employment from Newgrange Energy Limited; which is a separate legal entity.

Complainant’s Submission: The complainant submits she originally worked for Robert Lynch in the Energy Centre call centre in Duleek Business Park from June 2017 for about six months. She returned on 18 February 2019 to work for Robert Lynch trading as The Energy Centre in the Climote department. In November and December 2019 she became aware that a new company called Green Electric was starting up and she was involved in a mail drop for the new company and maintaining a prospective customer list. Newgrange Energy Limited was formed on 24 January 2020 and registered the business name Green Electric. In January 2020 the complainant worked in a dual capacity for both the Energy Centre in the Climote department and for Green Electric. In February 2020 the complainant was informed the Climote department was being wound down due to changes in Government regulations. She was offered a managerial position with Green Electric. The respondent’s then HR manager sent a draft contract with Green Electric for her to sign. The complainant returned it for amending as it contained a relocation clause which was not acceptable to her. This contract was not returned to her and she did not receive any other contract and was not provided with terms and conditions of employment as required by the Employment (Miscellaneous Provisions) Act 2018. In the absence of these she was not aware of, nor could she have been aware of the complex corporate structure surrounding both businesses that she worked for. The complainant worked out of the Energy Centre in Duleek Business Park in early 2020 until the Pandemic lockdowns. She returned to work in-person in August 2020. From September 2020 she worked solely for Green Electric from its premises in Stamullen, she then moved with Green Electric to their new premisses in Duleek Business Park. The complainant reported to and worked for Ian Lawlor within Green Electric and he sent her home from work on 11 June 2021 and he decided to dismiss her and told her so by telephone.

The complainant submits her payslips state she was paid by Robert Lynch Heating but the ultimate responsibility for her pay was the respondent Green Electric. Green Electric reimbursed Robert Lynch for the payment of wages of workers ‘cross hired’. She was expected to come to the respondent’s premises to be allocated work and she had an obligation to accept that work from the respondent. It is submitted the complainant’s contract of employment was an oral one or one by implied conduct.

Findings and Conclusions: I am investigating whether these complaints of discriminatory dismissal were made against the correct respondent. Section 8 of the Employment Equality Act refers to discrimination of an employee by an employer. Section 2 states “"employee … means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment”; and

““employer”…. means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment”.

It is accepted that in in February 2019 the complainant started working for Robert Lynch in The Energy Centre. The complainant says that in January 2020 she split her time between the Energy Centre and Green Electric, a new enterprise. Then in February she says she was working full time for Green Electric, a registered name of Newgrange Energy Limited, and was given a contract in that name to sign. She says she was unhappy with a relocation clause in the contract, so she sent it back unsigned. The respondent says that contract was in the name of the Energy Centre. Unfortunately, neither party was able to provide a copy of that draft contract.

The only contract produced relates to the complainant starting her employment on 18 February 2019 and shows the employer as Energy Centre.

At the hearing it was explained by those appearing for the respondent that Newgrange Energy started in January 2020 as a new enterprise. The complainant carried out work for the new enterprise but neither the complainant or anyone else was, at that stage, employed by Newgrange Energy. The Energy Centre invoiced Newgrange Energy for the work carried out by the complainant. The respondent says the complainant was never told her employer had changed.

I have assessed all the evidence provided both orally at the hearing and in written submissions and conclude that at all times the complainant was employed by Robert Lynch trading as The Energy Centre. Therefore, I conclude the complainant has incorrectly named Ian Lawlor and Newgrange Energy Limited as respondents and the complaints are not correctly before me.

For the reasons given above I find that the complainant has not named a correct respondent, in either complaint, and is therefore unable establish a claim of discrimination under the Employment Equality Acts.

Employment Equality – incorrect respondent