The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-090
(Represented by Union of Motor Trade Technical and Industrial Employees)
Fiona Fitzgerald t/a Salon 56
(Represented by R.A. Consulting)
File Reference: EE/2013/212
Date of Issue: 18th September 2015
1.1 This dispute concerns a claim by the Complainant that she was dismissed by the Respondent on 8th March 2013 whilst on sick leave owing to a pregnancy related illness, on the grounds of gender, contrary to Section 6(2)(a) of the Employment Equality Acts 1998-2011 (also referred to as ‘the Acts’).
1.2 Through her Union representative, Mr Eamonn Woods of the Union of Motor Trade Technical and Industrial Employees (UMTTIE), the Complainant referred this complaint to the Director of the Equality Tribunal on 8th May 2013. On 12th August 2015, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Aideen Collard, 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 which date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 26th August 2015. Both parties were in attendance and represented. All written and oral evidence, personal statements, correspondence and documentation relating to claims made to other employment fora presented to the Equality Tribunal by both Parties before and during the hearing have been taken into consideration when coming to this decision.
2. PRELIMINARY ISSUE
2.1 Representatives for both Parties had brought to the Equality Tribunal’s attention the fact that the Complainant had made a number of other claims arising from the same set of facts to other employment fora. Therefore, as a preliminary issue, I had to consider such facts as were necessary to determine whether the Equality Tribunal had jurisdiction to hear this claim pursuant to Section 101(4) of the Acts. (Similar issues arose in the cases of Employee -v- Employer, UD909/2012 & Hughes -v- Dublin and Dun Laoghaire Training & Education Board formerly Dun Laoghaire VEC, DEC-E2014-099)
2.2 Mr Woods, Representative for the Complainant confirmed that a number of other claims arising out of the same set of facts had been submitted to other employment fora via a separate Workplace Relations Complaint Form on 11th July 2013, including a claim for unfair dismissal under the Unfair Dismissal Acts 1977-1993. Following a hearing before the Rights Commissioner, a number of findings issued including Ref: r-137633-ud-13 dated 10th January 2014, upholding the Complainant’s claim of unfair dismissal under the Unfair Dismissals Acts 1977-1993 and awarding her a sum of compensation. The Respondent appealed this decision to the Employment Appeals Tribunal and on the day of the hearing, the Parties entered into a written settlement dated 2nd April 2015 and the appeal was formally withdrawn. The written agreement contained the usual terms including a term that it was in full and final settlement of all matters, save for the right to pursue the claim herein and included a clause: “I reserve the right to pursue one (1) outstanding claim (reference EE2013/212) and it is acknowledged that this claim (under Section 77 of the Employment Equality Act 1998 - alleging dismissal due to pregnancy related illness) has been submitted to the Equality Tribunal.” The Respondent subsequently defaulted on the terms of the settlement including an agreement to make periodical payments. Mr Woods also indicated that he had unsuccessfully attempted to re-enter the matter before the Labour Court and had submitted a claim for implementation of a Rights Commissioner’s recommendation to the Employment Appeals Tribunal.
2.3 Mr Woods also confirmed that the Complainant was not submitting any other claim to the Equality Tribunal other than a claim of discriminatory dismissal on the grounds of gender. It is noted that the only box ticked in the standard Workplace Relations Complaint Form submitted to the Tribunal was that of discriminatory dismissal and the gender ground was confirmed in subsequent correspondence. The only elaboration contained within the Form was: “I was sacked by Fiona Fitzgerald while on certified sick leave due to a pregnancy related illness.” Mr Woods further confirmed that the circumstances leading up to the alleged dismissal as set out in a statement of the Complainant and submitted to the Tribunal on 17th December 2014 were fully aired and considered before the Rights Commissioner.
2.4 Section 101(4) of the Acts sets out the jurisdiction of the Equality Tribunal to hear a discriminatory dismissal claim when a claim based on the same facts has also been submitted to another forum:
“101(4) An employee who has been dismissed shall not be entitled to seek redress under this Part in respect of a dismissal if-
(a) the employee has instituted proceedings for damages at common law for wrongful dismissal and the hearing of the case has begun,
(b) in the exercise of powers under the Unfair Dismissals Acts, 1977 to 1993, a rights commissioner has issued a recommendation in respect of the dismissal, or
(c) the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal.”
2.5 I note that the Complainant has had Union representation in respect of this claim and the claims before the other fora. Having given careful consideration to the matter, I am satisfied that in the exercise of his powers under the Unfair Dismissals Acts 1977-1993, a Rights Commissioner issued a recommendation in respect of the same dismissal on 10th January 2014. Section 101(4)(b) of the Acts unequivocally provides that a Complainant who has been dismissed shall not be entitled to seek redress under the Employment Equality Acts in respect of the same dismissal in such circumstances. For the avoidance of doubt, I find that the Tribunal’s jurisdiction to hear the claim herein ceased under Section 101(4)(b) of the Acts upon the issuing of the decision by the Rights Commissioner on 10th January 2014, notwithstanding the subsequent appeal to the Employment Appeals Tribunal which was withdrawn upon the Parties entering into a written agreement purporting to allow the Complainant to pursue this claim.
3.1 Based on all the foregoing, I find that pursuant to Section 79(6) of the Employment Equality Acts, that I am lacking jurisdiction to investigate the within complaint, due to the fact that an earlier Rights Commissioner recommendation upholding the same dismissal under the Unfair Dismissals Acts 1977-1993 issued on 10th January 2014, pursuant to the provisions of Section 101(4)(b) of the Acts.
18th September 2015