THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS
Preliminary Decision DEC - E2012 - 189
PARTIES
Mr. Kumar Subramanium
(represented by John Synnott & Co., Ltd.)
and
D4 Hotels.com
File Reference: EE/2010/183
Date of Issue: 20th December, 2012
Headnotes: Employment Equality Acts, - Section 79(3A), Preliminary Decision - Correct respondent - transfer of undertakings
1. Dispute
1.1. This case concerns a complaint by Mr. Kumar Subramanium that he was discriminated against by D4 Hotels.com on the ground of race, contrary to section 6(2)(f) of the Employment Equality Acts, 1998 to 2008 ("the Acts"), in relation to dismissal, contrary to Section 8(6)(c) of the Acts.
2. Background
2.1. The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 25th November, 2009, alleging that D4 Hotels.com had discriminated against him on the ground of race.
2.2. Written submissions were received from both parties. On 17th February, 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced.
2.3. On 23rd April, 2012, I notified the parties in writing by recorded delivery that I had set a hearing of this matter for 26th June, 2012. The notification to the respondent was returned marked "unknown at this address". Arising from this, and from subsequent correspondence with the complainant in relation to this matter, I received a submission from the complainant's representative on 28th May, 2012. This submission was, inter alia, to the effect that a transfer of undertakings had taken place transferring the rights and obligations arising from the complainant's employment with D4 Hotels.com from a company known as MJBCH Ltd. to a company/companies known as ZRKO Ltd./Qulpic Ltd.
2.4. A hearing was held on foot of this submission from the complainant. This hearing ultimately took place on 11th July, 2012. MJBCH Ltd. was not in attendance but representatives from Qulpic/ZRKO Ltd. and the complainant were in attendance at the hearing. Arising from information gathered at the outset of the hearing, I was not satisfied that MJBCH Ltd. was properly notified of the hearing. On that basis, the hearing was adjourned. I engaged in further correspondence with the complainant (through his representative), with MJBCH Ltd. (through its liquidator) and with Qulpic/ZRKO Ltd. (through its representative). The objective of this correspondence was to clarify the nature of the relationships between the parties in order to establish the identity of the correct respondent in this matter. The most recent correspondence in this respect was received on 11th October last from the representatives for Qulpic/ZRKO Ltd.
2.5. In the course of this correspondence, Qulpic/ZRKO Ltd. maintained that it is not, nor should it be, a party to these proceedings. In that context, and in accordance with Section 79(3A) of the Acts, I am issuing this preliminary decision with respect to the questions of who the correct respondent is in this case and/or whether the complaint should proceed against Qulpic Ltd./ZRKO Ltd. or any other party, as well as any other questions of law or fact arising from the complainant's submission dated 28th May, 2012.
3. Preliminary Issue
Complainant's Position
3.1. The complainant submitted that the claim against the respondent was well founded and brought, but that it may require amendment of the name of the respondent to read the correct legal title of MJBCH Ltd. It submitted that the current status of MJBCH Ltd. is no longer relevant as it would appear that a further transfer of undertakings had occurred and that MJBCH Ltd.'s obligations and liabilities have been transferred. It submitted that the precise nature and terms of the transfer is a matter outside of its knowledge. It submitted that ZRKO Ltd. and/or Qulpic Ltd., with (a) registered address(es) of 70 Sir John Rogerson's Quay, Dublin 2, are now the appropriate respondent(s) and should be joined and compelled to address the issues and claims raised by the claimant in the context of the complaint reference EE/2009/850.
3.2. In that context, the complainant submitted that Council Directive No. 2001/23/EC of 12th March, 2001 was transposed into Irish Law through the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003. It also referred to the European Court of Justice (ECJ) cases of Schmidt v Spar-und Leihkasse der fruheren Amter Bordesholm, Kiel und Cronshagen1and Foreningen af Ardejdsledere i Danmark -v- Daddy's Dance Hall2. It submitted that the jurisprudence arising from those decisions is that (i) a transfer of undertakings applies even if ZRKO/Qulpic Ltd. have since leased the business to a third party and (ii) where there is a transfer of undertakings the rights and obligations of the transferor arising from a contract of employment that existed prior to the date of transfer shall be transferred to the transferee.
Position of ZRKO/Qulpic Ltd.
3.3. ZRKO/Quplic Ltd., through its representatives, Matheson Ormsby Prentice, solicitors, submitted that the transfer of undertakings in question took place after the complainant was dismissed by D4 Hotels. In that context, it submitted that the only respondent was MJBCH Ltd. who was the complainant's employer at the time in question and who, inter alia, traded under the D4 Hotels.com trading name at that time. Furthermore, it submitted that it had leased the running of the hotels in question to another named company and they were now the relevant employer in any event.
Position of MJBCH Ltd
3.4. Having been notified of the name of the liquidator in July, 2012, I proceeded to engage in correspondence with it with a view to clarifying its position in the matter as well as to keep it informed as to the position with respect to the complaint. It wrote to me on 11th October last to say that it would not be contesting the matter.
4. Conclusions of the Equality Officer
4.1. In considering the preliminary matters arising herein, a key fact that is accepted by both sides is that the complainant was dismissed on 29th May, 2009, before the transfer of undertakings in question took place. I am not, and cannot, make any determination at this stage as to the validity of that dismissal. However, it can be said without reservation that the complainant's employment relationship with D4 Hotels.com terminated that day. While I have not seen any documentary evidence as to the precise nature of the transfer of undertakings, I am satisfied that neither ZRKO/Qulpic Ltd. nor any other party took on any responsibility for any liability arising from the complainant's employment with D4 Hotels.com in that context. The jurisprudence referred to by the complainant related to cases where the relevant employee was still employed by the relevant organisation at the time that the transfer of undertakings took place. That is not the case with respect to the present complaint.
4.2. Therefore, it is clear that the one and only respondent in this matter is the organisation responsible for the trading name D4 Hotels.com at the time in question. I am satisfied that the organisation concerned is MJBCH Ltd. This complaint can now proceed against MJBCH Ltd. trading as D4 Hotels.com but not against any of the other parties referred to in this decision. In that context, an investigation into the substantive issues arising in this complaint will follow.
5. Decision
5.1. I hereby make the following preliminary decision in accordance with section 79(3A) and 79(6) of the Employment Equality Acts:
5.2. MJBCH Ltd. (trading as D4 Hotels.com) (in liquidation), is the correct respondent in relation to this complaint.
5.3. ZRKO Ltd/Qulpic Ltd., with a registered address of 70 Sir John Rogerson's Quay, Dublin 2, is not and has not been the complainant's employer and is not a respondent in this case.
_____________
Gary O'Doherty
Equality Officer
20th December, 2012
1 Case C-392/92; judgement of 14th April, 1994
2 [1988] EUECJ R-324/86; Case 324/86