EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2017-027
Comhaltas Ceoltoiri Eireann
Francis McGagh B.L. instructed by Eugene P. Kearns, Solicitor
File reference: et-149801-ee-14
Date of issue: 24 April 2017
HEADNOTES: Employment Equality Acts – Sexual Orientation ––Access to Employment
1.1.This dispute concerns a claim by James Mounsey that he was discriminated against by Comhaltas Ceoltoiri Eireann on the grounds of his sexual orientation contrary to section 6 of the Employment Equality Acts in relation to conditions of employment in terms of section 8 of those Acts.
1.2.The complainant referred a claim to the Director of the Equality Tribunal on October 20th 2014 under the Employment Equality Acts. On 30 March 2017, in accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Pat Brady an Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director (General) under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on April 4th 2017.
1.3.This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2. PRELIMINARY MATTER
2.1.The Complainant had a previous employment relationship of varying sorts with the respondent at various stages in the past. This began when he was a student on a sort of placement or internship but he was also formally employed on a contract of service for a period. However the respondent raised a preliminary objection on the basis that he was not an employee at the time of making the complaint. I therefore address this as a preliminary matter.
2.2. The complainant worked intermittently with the respondent two days per week in 2011 and 2012. Included in his duties was administrative work which finished in 2012. He also worked in the United States with an organisation which had an affinity with the respondent but which was an entirely independent legal entity.
2.3.He returned to work in Ireland as a performer each summer. From 2012 on his relationship such as it was with the respondent was in his capacity as a performer.
2.4.Evidence was given and accepted that in 2013 the extent of his engagement as a performer was that he played in eight out of a possible seventy performances. In 2012 he was available to work only three weeks out of a full summer season.
2.5.It is also clear from email communications between the complainant and the respondent that a formal employment relationship had ceased some time before this in 2012. Bear in mind that the complaint was made on October 20th 2014 and that is the material date on which the complainant must meet the criterion of having been an employee.
2.6.On March 3rd 2014 the complainant wrote to the respondent from the United States advising that his contract there was terminating and saying;
‘You mentioned in the past that there would always be work for me at [the respondent HQ] …and I wish to apply to you to return to my previous work …on my return’.
2.7.The respondent replied, essentially saying that he was not in a position to offer anything because of financial difficulties in the organisation. There was further email correspondence from the complainant to a different recipient on June 3rd (and June 11th) inquiring whether ‘you have shows opening dates’… and saying he was looking forward to performing in them. He was told that there were not.
2.8.It is worth noting that at this stage the complainant had not worked under a contract of employment with the respondent since 2012. Whatever degree of commitment may have been represented by the vague, and probably well-intentioned ‘there’ll always be work for you here’ comment it does not provide evidence of any continuity in the complainant’s contractual relationship with the respondent; indeed quite the opposite. It is the sort of comment one might associate, almost by definition with a parting of the ways.
2.9. Equally, his second request for work as a performer indicates that clear water had opened up between his previous engagement both in terms of the passage of time and of the nature of the working relationship.
3. COMPLAINANTS' SUBMISSION
3.1.The facts as outlined above were accepted by the complainant. He did not make a submission on the legal issues.
4. RESPONDENT'S SUBMISSION
4.1.The respondent referred to section 8(1) of the Employment Equality Acts 1998-2011 where it is stated that an ‘employer shall not discriminate against an employee or prospective employee’ and says that the complainant was not an employee or a prospective employee.
4.2.Under section 2 of the Acts the contractual relationship required is described as being based on a ‘contract of employment’ which is further defined and clarified to mean a ‘contract of service’.
4.3.The respondent further submitted that while there is no statutory definition of a ‘prospective employee’ there must be prospective employment for them represented by, for example a position having been advertised and applied for, or that an intention existed to fill a position.
4.4.Therefore, the respondent submitted that as the complainant did not fall within the definition of an employee or prospective employee (and the respondent therefore does not fall within the definition of an employer), and as there was never a contract of employment between the parties the complainant does not fall within the remit of the Employment Equality Acts.
5. FINDINGS & CONCLUSIONS OF THE ADJUDICATION OFFICER
5.1.I have to decide, as a preliminary matter whether the complainant had the necessary status at the time of making the complaint to bring it within the jurisdiction of the Employment Equality Acts and to enable me to make a decision on the merits of the complaint.
5.2. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
5.3.It is clear from the undisputed evidence outlined above that the complainant terminated his employment relationship with the respondent in 2012. He had some limited engagement in 2012 and 2013 as a performer, but even in 2013 this was very brief and more importantly not in the nature of a contract for service. (There was some dispute between the parties as to the precise nature of the remuneration arrangements, but neither version of the argument constituted a contract of service.)
5.4.I find that he does not come within the definition of an employee, or have the necessary contract of service to bring him within jurisdiction.
6.1.I have investigated the above complaint and make the following decision in accordance with section 79 of the Employment Equality Acts that:
The complainant was not in an employee/ employer relationship at the time of making the complaint and it therefore does not fall within the jurisdiction of the Employment Equality Acts.
6.2.Accordingly the complaint is not upheld.
24 April 2017