UD2377/2011, MN2394/2011, RP2938/2011

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                                 CASE NO.

EMPLOYEE,                                                                                                              UD2377/2011

                                                                                                                                      MN2394/2011

                                                                                                                                     RP2938/2011

against

EMPLOYER  and

EMPLOYER  and

EMPLOYER.

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Ms S.  Behan

Members:     Ms M.  Sweeney

                     Mr J.  Flavin

heard this claim at Cork on 28th June 2013

Representation:

_______________

Claimant:              Ms Colleen Minihane, SIPTU, Liberty Hall, Dublin 1

Respondent:         Mr Adrian Hegarty, Malone Hegarty Solicitors, Muckross Road,

     Killarney, Co Kerry 

Determination on Preliminary Issue:

A preliminary objection was made by Mr Adrian Hegarty Solicitor on behalf of the Respondent on the following basis:

The details submitted in relation to the Respondent were incorrect in that the employer was not named correctly nor was the registered office cited. Mr. Hegarty, on behalf of the Respondent outlined that the correct title of the Respondent was Kellor Services Ireland Limited. He stated that the Registered Office of the Company was Cahernard , Castleisland, Co. Kerry. He stated that that an inappropriate address had been used, namely Ballydesmond, Laca Cross, Mallow, Co. Cork. He further stated that Section 39 of the Organisation of Working Time Act 1997 had no application and could not be relied upon by the Tribunal in amending the title. He stated that the Applicant’s claim was therefore now out of time and barred by reason of the operation of the Statute of Limitation.

A booklet of documentation was produced by Mr Hegarty on behalf of the Respondent which included a Company Registration Office search.

It transpired that the C.R.O. search produced, in fact referred to the title of the company as being Kellor Services (IRE) Limited. The name of the company as appearing in its headed note paper is Kellor Services (Ireland) Limited and the name as it appeared on the Contract of Employment was Kellor Services  Ireland Limited. It was further noted that the address of the employer  recorded in the Contract of Employment was Lacka Cross, Ballydesmond, Mallow, Co. Cork. Further, the address Lacka Cross, Ballydesmond, Mallow, Co. Cork appears on the headed note paper of Kellor Services Ireland Limited as well as recording the Registered Office being at Cahernard, Castleisland, Co. Kerry.

It is the firm view of the Tribunal in this regard that no issue should arise in relation to the address of the Respondent company, given the fact that the place of business has clearly been identified  in the aforementioned documentation and no issue should therefore arise  in relation to same

The only issue accordingly to be dealt with is whether the fact that the title of the Respondent Company  referred to  as Munster Joinery t/a Kellor Services Limited whereas in fact the correct name of the Defendant company is Kellor Services (Ire) Limited, was sufficient to defeat the claim of the Applicant.  It was conceded by the Applicant’s representative Ms Colleen Minihane that the”(Ire)”should have been included in the title of the Respondent.

The Appearance filed on behalf of the Respondent Company did not make any issue of the title of the Respondent Company despite the fact that the Notice of Appearance Form itself contains the following notice which is highlighted within the document “N.B. if employer’s name is different from above please give employer’s correct legal name.”

Furthermore the Defence lodged by the Respondent in the case was that “each and every particular of claim by the Appellant is denied as if same were set out individually and traversed seriatim”. This Defence is one of rebuttal and relates to the claims of the Appellant.  It does not deal with the issue of the correct title or otherwise of the Defendant.

The issue for consideration by the Tribunal is therefore whether or not the omission of the word (Ire) from the title of the Respondent Company is fatal to the application made to the Tribunal.

An Application was made by the Applicant following the preliminary objection on behalf of the Respondent for leave to institute and amend the proceedings to name the Respondent as Kellor Services (Ire) Limited. It was submitted on behalf of the Applicant that the misstatement of the

Respondent’s name was due to inadvertence on behalf of the Applicant and it was acknowledged by the Applicant that an error was made in this regard.

The Tribunal has found that the misstatement in relation to the omission of the word (Ire) from the title of the Respondent company was a mistake due to  inadvertence, and is prepared to allow the claim proceed and the title be amended pursuant to the provisions of Section 39 of The Organisation of Working Time Act 1997. In the circumstances the Tribunal allowed the Respondent the opportunity to adjourn the case so as to ensure that no injustice would be rendered by reason of the amendment and to ensure that the Respondent would be in a position to deal with the proceedings as amended.

It might be noted that the Respondent relied on a copy of an EAT determination in the case of UD38/2001 in which the Claimant had completed a T1A Form naming the HR Manager and the hotel in which he worked as his employers which said named Respondents were incorrect. The correct Respondent was in fact a company referred to as C Limited. The T2 filed stated that the wrong employer was named. The Tribunal found that it did not have jurisdiction to hear the claim.

This case can be distinguished from the case of UD38/2001. The Tribunal was satisfied that there was no inadvertence in relation to the matter. The Claimant in the aforementioned case brought the claim against the wrong entity entirely and in light of the fact that there was no finding of inadvertence, no benefit could be obtained from Section 39 of the Organisation of Working Time Act 1997 in the circumstances.

In the present case however the Tribunal has found that there was inadvertence in the misstatement of the Respondent’s name. The Respondent’s name was incorrectly cited simply by omitting “Ire” which is entirely different from inappropriately proceeding against two separate legal entities. It is obvious that a mistake has occurred in this case for which the Claimant should not be penalised.

The Tribunal must also have regard to the somewhat informal nature of the proceedings before it and to the comments of Walsh J in the Supreme Court in the matter of Halal Meat Packers (Ballyhaunis) V Employment Appeals Tribunal 1990 ILRM 293 in which he referred to the Employment Appeals Tribunal as being set up to relieve people of what is regarded as undue technicalities of court and furthermore of being intended in many ways to be somewhat informal.

It would be an injustice not to allow the Claimant proceed with his claim in all of the circumstances.

On the preliminary issue, regarding the incorrect name and address of the respondent the Tribunal is unanimously agreed that the address used by the claimant was his place of work, and that the correct title of the employer was Kellor Services (Ire.) Limited. The (Ire.) was omitted due to inadvertence on behalf of the claimant. The claim under the Unfair Dismissals Act can proceed.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)