Complainant

Respondent

Parties

Ella  Ovie

Merck

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-represented

 Non-attendance

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-00061404-001

06/02/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant attended the hearing and undertook to give her evidence under affirmation.  The Hearing notification was sent to the respondent and a third party attended the hearing.  This party was a recruitment agency that arranged the recruitment of the complaint 2 years previously and purported to represent the respondent.  However no prior authorisation was sent to the WRC indicating that the respondent was represented by this company nor had instruction to represent the company.  A short break was taken to enable this company to forward authorisation in this regard.  Following the break, the third party indicated that they had no written authorisation to show that they could represent the respondent.  The two individuals were permitted to remain in the hearing in accordance with the principles of open justice and the hearing proceeded but were not permitted to submit evidence on behalf of the respondent.

Documentation submitted to the WRC, and the complainant, in advance of the hearing indicated that she was not an employee of the respondent.

The complainant submitted that she was an employee of the respondent and that she was subjected to harassment, discrimination and victimisation by the respondent on the basis of her race and disability.

She stated in evidence that her payslip was issued by a company other than the respondent.  She confirmed that that company invoiced the respondent on a monthly basis.  She also confirmed that she had no documentation that indicated that she was employed by the respondent.

The respondent did not attend the hearing of this matter.

The employment relationship that the complainant found herself in was, undoubtedly, a complex one.  She provided written evidence showing that she was employed by a company other than the respondent.  The Employment Equality Act, 1998 contains the following definitions:

“contract of employment" means, subject to subsection (3)—

(a) a contract of service or apprenticeship, or

(b) any other contract whereby—

(i) an individual agrees with another person personally to execute any work or service for that person, or

(ii) an individual agrees with a person carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 to do or perform personally any work or service for another person (whether or not the other person is a party to the contract),

whether the contract is express or implied and, if express, whether oral or written”

"employee", subject to subsection (3), 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, where the context admits, includes a member or former member of a regulatory body, but, so far as regards access to employment, does not include a person employed in another person’s home for the provision of personal services for persons residing in that home where the services affect the private or family life of those persons;

“employer”, subject to subsection (3), 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;

The documentation sent to the WRC and to the complainant in advance of the hearing indicates that the complainant was not an employee of the respondent organisation.  The complainant provided a payslip indicating that she was employed by a company other than the respondent.  She clarified that she received monthly payments together with payslips from that, non respondent, company.  The complainant indicated that she was not in a position to provide any documentation showing that she was an employee of the respondent nor that she worked for an employment agency at the respondent’s place of business.

Section 85(A) of the Act deals with the burden of proof and states as follows:

85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

As the complainant has not demonstrated that she is an employee of the respondent, I find that she has not established facts from which it may be presumed that there has been discrimination in relation to her.  Accordingly, I find that the complainant was not discriminated against.

Having regard to the written and oral evidence presented in relation to this matter, my decision is that the complainant was not discriminated against.

Employment Equality Act – no employment relationship established – complainant not discriminated against