EMPLOYMENT EQUALITY ACTS 1998-2011
Ms Gratiela Anton
Team Obair (represented by Anna McShane B.L.)
File Reference: EE/2014/398
Date of Issue: 29th October 2015
Keywords: identical issues litigated under Unfair Dismissals Acts and Employment Equality Acts – Cunningham v. Intel – no jurisdiction
1.1. The case concerns a claim by Ms Gratiela Anton that Team Obair discriminated against her on the ground of family status contrary to Section 6(2)(c) of the Employment Equality Acts 1998 to 2011, in terms of not offering her work placements after learning that she was pregnant.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 23 June 2014. A submission was received from the complainant on 15 April 2015. A submission was received from the respondent on 24 August 2015, and an additional submission from the respondent was received on 19 October 2015 and forwarded to the complainant on the same day. On 20 August, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts, and pursuant to the continuation of my functions set out in S. 83 of the Workplace Relations Act 2015, as amended by S. 20(m) of the National Minimum Wage (Low Pay Commission) Act 2015, and as part of my investigation, I proceeded to hold a joint hearing of the case on 29 October 2015.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that the respondent, who is an employment agency, did not offer her work with a client in the food processing business from January 2014 onwards, after she had worked there since May 2013 with no problem or complaint. She requested work from the respondent until March 2014, unsuccessfully. She then learned that two of her colleagues had gone back to the food processing company in February 2014.
2.2. The complainant states that the only difference between her and her colleagues was her pregnancy. She submits that this amounts to discriminatory treatment due to family status.
2.3. Since the complainant erroneously submitted her complaint on a form for complaints under the Equal Status Acts, it is not clear whether she complains of discriminatory dismissal.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that it did not know of her pregnancy. It further submits that a Rights Commissioner found in the complainant’s favour in November 2014 pursuant to a complaint under the Unfair Dismissals Acts 1977-2007, and that the compensation order was paid. The respondent therefore submits that the complainant is precluded from litigating the same set of circumstances twice. The respondent submitted a copy of the Rights Commissioner’s recommendation, which supports the respondent’s contention that the complainant submitted essentially the same complaint in two different fora.
4. Conclusions of the Equality Officer
Preliminary issue: Jurisdiction
4.1. The preliminary issue for decision in this case is whether the Workplace Relations Commission has jurisdiction to investigate this complainant, given that it was decided in favour of the complainant by a Rights Commissioner pursuant to the Unfair Dismissals Act 1977-2005 by the time the case was delegated to me.
4.2. As noted in paragraph 3.1 above, the text of the Rights Commissioner’s decision sets out the evidence before her very clearly, and from this it seems that the facts which the complainant relies on are indeed the same she relied on before the Rights Commissioner. Given that the complainant also accidentally filed her complaint under the Equal Status Acts 2000-2011, and only later confirmed that she wished to have it investigated under the Employment Equality Acts 1998-2011, this may have been through inadvertence.
4.3. Nevertheless, precise statutory rules, as well as precedent law, exist for such situations.
4.4. S. 101(4) of the Employment Equality Acts precludes a complainant from seeking redress for discriminatory dismissal where a Rights Commissioner, in the exercise of powers under the Unfair Dismissals Acts 1977-2007, has issued a recommendation in respect of the dismissal.
4.5. In Cunningham -v- Intel Ireland Ltd  IEHC 207, Hedigan J expanded the principle enshrined in S. 101 of the Acts by connecting it to the common law rule enunciated in the old case of Henderson v. Henderson (1843) 3 Hare 100, that “there should be finality in litigation and that a party should not be twice vexed in the same matter.”
4.6. Hedigan J. elaborated in his decision that “all matters and issues arising from the same set of facts or circumstances must be litigated in the one set of proceedings save for special circumstances. This is a rule that is of benefit to both plaintiffs and defendants, to the courts themselves and thus to the public interest.”
4.7. This ruling by Hedigan J. binds the Workplace Relations Commission. At the hearing of the complaint, the complainant argued that her previous complaint concerned an unfair dismissal, and her within complaint concerned discriminatory treatment. However, she accepted that the facts which underpinned both sets of proceedings were in fact identical. Accordingly I find that, based on all of the foregoing, and in particular in light of the ruling in Cunningham v. Intel  IEHC 207, I have no jurisdiction to investigate the complaint.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Employment Equality Actsand section 41 (5) (a) (iii) of the Workplace Relations Act 2015, that the Workplace Relations Commission lacks jurisdiction to investigate this matter because the same circumstances were previously adjudicated on pursuant to the Unfair Dismissals Acts 1977-2007.
Adjudication Officer/Equality Officer
29 October 2015