Worker

Employer

Anonymised Parties

Office Administrator

A Translation/Interpretation Service

Representatives

John Mcnamara, McNamara Solicitors

Caroline Doyle BL instructed by E.P. Daly & Co Solicitors  

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00000787

20/10/2022

On 20 October 2022, the Worker referred to the Director General of the WRC a claim under the Employment Equality Acts, 1998 (as amended) and the within dispute. Both were based on the same set of facts.

The Worker alleges that she was discriminated against by the Employer by reason of her religion and race, and that she was dismissed for discriminatory reasons. The most recent date of discrimination was stated as 18 May 2022.

The Worker confirmed at the adjudication hearing that the within claim is identical to that submitted separately under the Employment Equality Acts, 1998 (as amended).

The Employer submits that the Worker was not discriminated against and that the Worker’s employment was lawfully terminated with relevant notice on 25 May 2022, which was during her probationary period. It is submitted that the dismissal was solely on performance related grounds.

The Court of Appeal in O’Donovan v Over-C Technology Ltd [2021] IECA 37 outlined that adequate weight must be given to a termination which occurs during the probationary period, which is described as a period during which “both parties are – and must be – free to terminate the contract of employment for no reason, or simply because one party forms the view that the intended employment is, for whatever reason, not something with which they wish to continue.”

The Court of Appeal went on to affirm the common law position that, outside of the statutory unfair dismissals framework, an employer can terminate employment for any reason or no reason, provided adequate (i.e. contractual or statutory) notice is given. Furthermore, the Court stated that an employer is not required to apply fair procedures on dismissing an employee during the probationary period, unless they are being dismissed for misconduct.

In the above circumstances, it is submitted that the Adjudicator should not make any recommendation in the Worker’s favour pursuant to the Industrial Relations Acts.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The Worker submitted her complaint to the Director General of the WRC alleging that she has an industrial relations dispute. The Worker alleges that she was discriminated against by the Employer by reason of her religion and race, and that she was dismissed for discriminatory reasons. The most recent date of discrimination was stated as 18 May 2022.

It was confirmed at the oral hearing that this dispute is based on the same set of facts that are contained within the complaint of discrimination referred to the Director General of the WRC by the Worker under the Employment Equality Acts, 1998 (as amended). The statutory framework for making a complaint in relation to such matters is clearly provided for in the Employment Equality Acts. The Worker has already sought redress in respect of the claim of discrimination in accordance with the statutory framework set out in that enactment, and her complaint was dealt with separately as appropriate.

For the avoidance of doubt, the Worker did not refer a dispute regarding the fairness or otherwise of the procedure employed by the Employer in the execution of the termination of her employment.

In the circumstances, I find that the complaint of discrimination in the instant claim does not fall within the definition of a “trade dispute” for the purpose of Section 13 of the 1969 Act. Accordingly, I do not recommend in favour of the Worker in relation to this dispute.

 I do not recommend in favour of the Worker in relation to this dispute.

Discrimination – identical claims