THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS
Decision DEC - E2011-064
( Represented by Richard Grogan & Associates Solicitors)
Masterlink Logistics Limited
(Represented by Carley & Connellan, Solicitors )
File reference: EE/2008/721
Date of issue: 29 March 2011
Headnotes: Employment Equality Acts, 1998-2008 - correct respondent - change of name of respondent.
1.1 This dispute concerns a claim by Ms Gabriele Makauskaite (hereafter "the complainant") that she was subjected to discriminatory treatment on the ground of her race in terms of Section 6 (2) (h) of the Act and on grounds of her gender in terms of Section 6(2)(a) of the Act and contrary to Sections 8 of the Employment Equality Acts by Masterlink Logistics Limited (hereafter "the respondent"). The complainant maintains that the respondent discriminated against her in relation to her conditions of employment and in relation to training. She also maintains that she was discriminatorily dismissed.
1.2 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on 28 October 2008. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Deirdre Sweeney, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 31 January 2011, the date the complaint was delegated to me. Submissions were received on behalf of both parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 9 February, 2011.
2. Summary of the Complainant's Submission
2.1 The complainant, who is a Lithuanian national, states she was employed by the respondent. She submits that she did not receive a contract of employment, health and safety documentation or training. She also alleges that she was discriminatorily dismissed. The complainant states that she went on holidays and became sick on 18 June 2008. She offered her employer a sick cert but it was refused. In mid July she advised the employer that she still could not come back as she was still sick. She was told that the deadline for her return was 25 August. On 19 August she received a phone call from the respondent and she stated that she could return on 29 August 2008. She contends that the respondent told her not to bother returning as the respondent was finding a replacement for her. The complainant went to a Citizens Advice Centre who called the respondent and the respondent subsequently offered her job back. She states that she was not inclined to accept same. The complainant contends that this constitutes unlawful discrimination on grounds of race and on grounds of her gender contrary to the Acts.
4. Summary of the Respondent's Submission
4.1 The respondent states that the complainant was employed and at all material times had a written contract of employment together with policies and procedures in respect of sick leave and certified absence.
4.2 The respondent states that the complainant arranged holiday leave from 16 June to 20June 2008 in order to return to Lithuania and was due to return to work on 23 June 2008. On 22 June 2008 the complainant rang Ms A. of the respondent company and indicated that she was unwell and could not return. Subsequently Ms. A attempted on a number of occasions to contact the complainant but got no response. On 27 June the respondent received a text message from the complainant's mother indicating that the complainant was suffering from complications to her lungs. Over the following two weeks Ms. A attempted to contact the complainant but without success. The only contact with the complainant was a text on 25 July 2008 to Ms A. Ms A explained that in the absence of sick notes or certification the complainant could not be re-employed. The complainant indicated that she would attend a solicitor and obtain a note.
4.3 Prior to 25 August 2008 Ms A received a further text message from the complainant indicating that she could not get a flight from Lithuania and would only be able to return on 29 August. She requested that her job be kept open. Ms A indicated that her job would not be kept open in all of the circumstances. A P45 incorrectly backdated to June issued to the complainant. Subsequently on 4 September 2008 the complainant attended at the respondent company and met with Ms A. Ms A requested the certification of absence which was only dated 27 August and was retrospective. Ms A indicated tot he complainant that it was her belief that she had not been completely honest in relation to her absence as it had been made known to Ms. A that the complainant's mother had given birth to a child and that the complainant was assisting her during that period. The complainant indicated that the respondent should not have known of the baby's arrival but she did not deny same.
4.4 At the hearing the respondent's representatives raised an issue in relation to whether the respondent was correctly named. It was submitted that the named respondent in this case is not a legal entity. Furthermore it was submitted that the complainant was employed by Masterville Limited and that Masterlink Logistics was a business or trading name. The respondent drew the Equality Officer's attention to the payslip submitted in evidence by the complainant which correctly identified the employers as Masterville Limited. As this matter was raised for the first time at the hearing I advised the parties that in my decision this would be addressed as a preliminary issue but I would give the complainant's representative an opportunity to make a subsequent submission in writing. In subsequent correspondence the complainant's representatives made application to change the name of the respondent. It was agreed with both parties that in order to avoid unnecessary delays I would proceed without prejudice to take evidence at the hearing in relation to the substantive issue of the complaint.
5. Conclusions of Equality Officer
Preliminary issue - application to change the name of the respondent
5.1 The respondent submits that there is no legal entity Masterlink Logistics Limited as named by the complainant in this complaint. The complainant's pay slips all correctly identify the employers as Masterville Limited. The respondent further submits that the complainant's representative has acted for a number of other employees and has identified Masterville Limited as the respondent company. The registered business name Masterlink Logistics is owned by the company as evidenced by the business name search furnished to the Equality Officer at the hearing. The respondent also submits that Masterlink Logistics documentation furnished to the complainant make reference to a company registration number which can easily be cross referenced for free with the Companies Registration Office.
5.2 The complainant's representative states that it accepts that an incorrect name of the employer was put in the referral form, in that the trading or business name, Masterlink Logistics, was used rather than the formal name of the company which is Masterville Limited. The complainant's representative accepts that the payslips submitted in evidence on behalf of the complainant gives the employer's name as Masterville Limited. However the representative also refers to the contract of employment submitted in evidence by the respondent at the hearing which gives the employer's name as Masterlink Logistics. The complainant's representative states that the proceedings were originally lodged with another firm of solicitors but having taken over the file they accept full responsibility. They have reviewed the original instruction sheets and note that the person who took the original instructions did put down the name as Masterville Logistics. They accept that a mistake was made. They request that a change of name be granted on the basis that a business entity was named. The complainant's representative states that if a decision is made by me that the name of the respondent cannot be changed, they accept that in these circumstances the claim cannot proceed.
5.3 I am satisfied that the complainants clearly identified Masterlink Logistics Limited as the respondent on referral of this complaint to the Equality Tribunal. I am satisfied that the onus is with the complainant to identify the correct respondent in cases where she is seeking redress under the Acts. Section 77 (4) defines the respondent as
" the person who is alleged to have discriminated against the complainant or, as the case may be, who is responsible for providing the remuneration to which the equal remuneration terms relates or who is responsible for providing the benefit under the equality clause or who is alleged to be responsible for the victimisation".
The complainant's representative states that it accepts that an incorrect name of the employer was put in the referral form, in that the trading or business name, Masterlink Logistics, was used rather than the formal name of the company which is Masterville Limited. Clearly there was some confusion or error in recording the name of the respondent by the complainant's representatives as evidenced by the reference to Masterville Logistics in its application to change the name of the respondent. No evidence has been submitted to me that Masterville Logistics exists.
5.4 In all, four names have been referred to in the course of correspondence to me by the complainant's representative in relation to the name of the respondent, Masterlink Logistics, Masterlink Logistics Limited, Masterville Logistics and Masterville Limited. However, the respondent named in the referral form is Masterlink Logistics Limited (my emphasis). Masterlink Logistics Limited is not a legal entity. I also note that Masterlink Logistics Limited is not a trading or business name of Masterville Limited. I note that Masterville Limited is named as the employer in the complainant's payslips. Masterville Limited trades as Masterlink Logistics and that this trading name Masterlink Logistics was used in the complainant's contract of employment. At the bottom of some documentation headed Masterlink Logistics that the complainant submitted in evidence, reference is made to Masterville Limited t/a Masterlink Logistics. Having considered the issue in its entirety, I am satisfied that the complainant did have the evidence in her possession to identify the correct title of the employer and the correct trading name of the employer at the time of lodging her complaint. I am satisfied that I have no power to accede to the complainant's application to change the name of the respondent. In this regard I note the decision of the Labour Court in the case of@Resonance LTD v Rachel Coleman. In that case the complainant made an application to the Labour Court to have the name of the respondent changed from that originally recorded and the Labour Court stated,
" 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....it is for the claimant to.... ensure that proceedings are issued against the correct respondent."
Accordingly from the evidence available to me I am satisfied that Masterlink Logistics Limited is not the correct respondent in this case. Having considered the matter I am satisfied that proceedings have issued against the wrong respondent.
6.1. As the incorrect respondent is named, I cannot proceed further with this investigation.
29 March 2011