SECTION 77, EMPLOYMENT EQUALITY ACT, 1998
@ RESONANCE LIMITED
- AND -
(REPRESENTED BY MICHAEL E HANAHOE, SOLICITORS)
Chairman: Mr Flood
Employer Member: Mr Keogh
Worker Member: Mr. Somers
1. Alleged unfair dismissal under Section 77 of the Employment Equality Act 1998
2. The worker is a computer web designer and developer. She commenced employment with the Company on the 29th of January, 2001. The worker claims that she was given no contract of employment or a job description. She raised this issue with her employer in July before going on holiday. When she returned from holiday she informed management that she was pregnant and that the baby was due in March, 2002. The worker was on sick leave for a number of days in September. When she returned, her manager informed her that business was bad and that he was going to dismiss her with one month's notice. The worker believes that she was discriminated against because of her pregnancy. She claims that 3 other employees doing similar work were kept on after she was let go.
The worker sent a questionnaire to the Company in October, 2002. She received a reply from the Company's solicitors claiming that the Company had ceased to trade in November, 2001, and no longer had any assets. They also claimed that all employees of the respondent had been "dismissed with notice in September, 2002." They also claimed that one of the 3 workers was subsequently employed by Resonance Limited, a separate company. The worker believes that the other 2 employees were given P45s in September/October, 2001, but continued to work in the same location without any break in their employment, which meant that she was the only person dismissed.
The worker referred her case (through the Equality Authority) to the Labour Court on the 19th of March, 2002. A Labour Court hearing took place on the 7th of May, 2003. The Company did not attend the hearing or forward a written submission.
The claimant was employed by @Resonance Limited on the 29th of January 2001. She became pregnant in or around the month of June, 2001. She informed her employers of this fact in August, 2001. On the 20th of September, 2001, she was informed by the Managing Director of her employers, Mr Ross Blakely, that things were not going well for the Company and that she would have to be made redundant. Her employment was finally terminated on the 10th of October, 2001.
The plaintiff noted that the Company continued to trade after she left and that of the three other people who had been employed by the Company, two remained on in their original positions and the third emigrated. The claimant took the view that the Company had dismissed her because she was pregnant. She subsequently instituted proceedings under Section 77 of the Employment Equality Act, 1998, (the Act) and during the course of those proceedings she issued a questionnaire under Section 76 of the Act. In the response to that questionnaire, the respondents indicated that @Resonance Limited had ceased trading and that the company currently trading from the business premises of @Resonance Limited was an entirely separate legal entity called Resonance Limited.
The claimant has now applied to the Court to have the name of the Respondent changed from @Resonance Limited to Resonance Limited on the grounds that Resonance Limited is, in effect, the same company as the original respondent and/or that there has been a transfer of undertaking to Resonance Limited so that it is responsible for the obligations and responsibilities of the original company towards the claimant.
The Court cannot accede to this application. It has no powers under the Act to substitute one respondent for another, or to join another party as co- respondent. If a transfer of undertaking has occurred or, in effect, Resonance Limited is the same company as @Resonance Limited, it is for the claimant to establish this fact prior to bringing her claim and ensure that proceedings are issued against the correct respondent.
Equally, on the conclusion of this matter, the claimant may seek a declaration in the appropriate forum that there has been a transfer of undertaking or that Resonance Limited is, in effect, the same company as @Resonance Limited, but these are not matters on which this Court can adjudicate.
The claimant’s application is refused. The Court so determines.
Signed on behalf of the Labour Court
8th August, 2003______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.