Complainant

Respondent

Parties

Ms. Stacey Barrett

Mr. Claudio Malizia

Representatives

Mr. Seamus Collins BL instructed by Ormonde & Co. Solicitors

Mr. David Gaffney, Solicitor, Gaffney Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00044406-001

31/05/2021

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

CA-00044406-003

31/05/2021

This case is linked to ADJ-00047278. There was extensive preliminary argument as to who was the correct legal Respondent in this case, and whether or not the correct legal Respondent was on notice of the proceedings. This matter was raised, for the first time, at the hearing on 23/03/2023.

The Adjudication Officer, at the hearing, on 28/03/2023, acceded to the application, on behalf of the Complainant to adjoin a second Respondent (Easy Meals Ltd.) The arguments made in relation to this are set out in ADJ-00047278.

This case was listed for hearing on three separate occasions:

1.      On the first occasion (13/10/2022), the Solicitor for the Respondent was ill, and a postponement was granted on the basis of “substantial grounds or exceptional circumstances” as per Process 2 of the Workplace Relations Commission’s Guidelines on Postponements. Supporting documentation (a medical cert.) was provided. The Complainant and her representative attended on the morning of the hearing.

2.      On the second occasion (Thursday, 23/03/2023), the Solicitor for the Respondent attended but the Respondent did not. An application for a postponement was made by the Solicitor for the Respondent, which was resisted by Counsel for the Complainant. A very short postponement was granted by the Adjudication Officer at the hearing on the basis of “substantial grounds or exceptional circumstances” as per Process 2 of the Workplace Relations Commission’s Guidelines on Postponements. An undertaking to provide supporting documentation was given, and subsequently submitted.

The Complainant and her representatives attended on both occasions. Mindful that this was an Employment Equality case (in terms of the Respondent employer’s attendance) and that the Complainant had now attended twice, along with her representatives, in circumstances where applications for postponements were made and granted, the Adjudication Officer granted a very short postponement only and reconvened the hearing the following Tuesday, 28/03/2023, for the third time. On 23/03/2023, it was stated by the representative for the Respondent that Mr. Claudio Malizia would be in attendance on the next occasion (28/03/2023).

On Sunday 26/03/2023, a written submission was made by the Solicitor for the Respondent submitting that Mr. Claudio Malizia was not the correct legal respondent.

3.       A hearing was convened on 28/03/2023. The Solicitor for the Respondent appeared. Mr. Claudio Malizia did not appear. Ms. Samantha Cleary, Mr. Malizia’s wife (and business partner), entered an appearance on his behalf, and was in a position to give the Solicitor for the Respondent instructions, i.e. no further postponement was being sought.

In response to an enquiry by the Adjudication Officer, it was clarified by Mr. Gaffney, Solicitor, that Ms. Samantha Cleary was solely in attendance in her capacity on behalf of Mr. Claudio Malizia and not in attendance in any capacity on behalf of Easy Meals Ltd.

Mr. Gaffney, Solicitor, further clarified that he was on record for Mr. Claudio Malizia only and had no instructions from, and was not on record for, Easy Meals Ltd.

The Respondent, Mr. Claudio Malizia, through his representative, ran a wholly technical defence, i.e. that he was not the correct legal respondent to the proceedings herein.

On foot of the Respondent’s written submission of 26/03/2023, Counsel for the Complainant - for clarity - then made an application at the hearing on 28/03/2023 seeking to adjoin Easy Meals Ltd. as a Respondent, while maintaining the position that Easy Meals Ltd. had been named as a Respondent in its submissions. [The details of this application are set out in ADJ-00047278]. The Adjudication Officer granted Counsel for the Complainant’s application.

CA-00044406-003 - the Complainant outlined that she never received a contract of employment from her employer, despite requesting one.

CA-00044406-001 – the Complainant gave evidence as to her treatment at work while pregnant, and  that she was summarily dismissed on foot of pregnancy-related illness by email, and the impact that had on her. [A summary of her evidence is set out in ADJ-00047278]. 

The Respondent was given an opportunity to cross-examine the Complainant and chose not to exercise that right. No witnesses were proffered on behalf of the Respondent, who ran a wholly technical defence.

The Respondent, Mr. Claudio Malizia, through his representative ran a wholly technical defence only, i.e. submitting that he was not the correct legal Respondent to these proceedings; and further objecting to the application by the representative for the Complainant to adjoin Easy Meals Ltd. as a Respondent.

[Adjudication Officer’s Note: At the time of the hearing, Easy Meals Ltd. has two shareholders (owners) and two directors, Mr. Claudio Malizia and his wife Ms. Samantha Cleary. The allegations made by the Complainant in relation to discriminatory treatment on the basis of pregnancy are levelled against Ms. Samantha Cleary who the Complainant identifies as her line manager; and the allegations in relation to discriminatory dismissal on the basis of pregnancy are levelled against both Mr. Claudio Malizia and Ms. Samantha Cleary.]

The Solicitor for the Respondent also clarified that he was not on record for Easy Meals Ltd., and had no instructions from Easy Meals Ltd.; and that Ms. Samantha Cleary was not present, in any capacity, on behalf of Easy Meals Ltd., that she was solely present on behalf of Mr. Claudio Malizia.

I find that the Respondent in these proceedings (ADJ-00033534), Mr. Claudio Malizia, is not the correct legal Respondent in this case.

I find that the correct legal Respondent is Easy Meals Ltd. (ADJ-00047278).

I granted an application made on behalf of the Complainant that Easy Meals Ltd. be adjoined as a Respondent to these proceedings. The arguments raised in respect of that and the basis for my decision are set out in ADJ-00047278 – I found that Easy Meals Ltd. was not prejudiced by the application, and was at all times, on notice of the Complainant’s proceedings.

I find that the Respondent in these proceedings (ADJ-00033534), Mr. Claudio Malizia, is not the correct legal Respondent in this case.

I find that the correct legal Respondent is Easy Meals Ltd. (ADJ-00047278).

I therefore find in favour of the Respondent, under ADJ-00033534.

CA-00044406-001 – As Mr. Claudio Malizia is not the correct legal Respondent, I find that this complaint is not well-founded.

CA-00044406-0003 – As Mr. Claudio Malizia is not the correct legal Respondent, I find that this complaint is not well-founded.

Incorrect Legal Respondent; Application to adjoin a second Respondent; Notice; Prejudice; Jurisdiction;