FTD149

The preliminary question under consideration relates to whether a claim that the Claimant was penalised by the Respondent, contrary to s.13(1)(d) of the Act, was properly before the Rights Commissioner and consequently whether that matter is properly before the Court.

The Issue
The background against which this issue arose is as follows.

The Claimant was employed by the Respondent pursuant to a series of fixed-term contracts between April 2009 and 31^stDecember 2012. He thus accrued three years and nine months service as a fixed-term employee by the date his employment terminated.

The Claimant made a number of complaints specifically alleging contraventions of sections 6, 8 and 9 of the Act. He did so using the originating form known as ‘The Workplace Relations Complaint Form’. This is the form now used for initiating all complaints under employment rights statutes.

This form invites complainants to outline in detail the specifics of their complaints. In relevant part the Claimant stated the following on this form: -

• In my view DIT breached Section 9 of the Protection of Employees Fixed-Term Work Act 2003. I was issued with 6 contracts by DIT.

  The objective ground in my last contract was that “the position is subject to the continuation and availability of EU funding…which is envisaged to cease on the 31^stDecember 2012. The claimant should have been issued with a CID rather than being issued with a P45. The funding for the project is continuing.

It appears that at the hearing before the Rights Commissioner the Claimant contended that this aspect of his claim was that he had been dismissed for the purpose of avoiding his fixed-term contract being deemed to be a contract of indefinite duration. If that were so, the complaint properly fell within the terms of s.13(d) of the Act.

The hearing before the Rights Commissioner was held on 8^thOctober 2013. The Rights Commissioner held that the complaint form did not raise a claim under s.13 of the Act. The Rights Commissioner further held that a complaint under that section was first presented at the hearing and was therefore out of time. The Rights Commissioner refused an application by the Claimant to extend time in accordance with s.14(4) of the Act.

Position of the Parties
The Respondent contends that the only complaint referable to s.13 of the Act was made on the day of the Rights Commissioner hearing on 8^thOctober 2013. That was more than six months’ from the occurrence of the event to which the complaint relates, namely, the termination of the Claimant’s employment on 31^stDecember 2012. Consequently, the complaint was outside the statutory time limit and statute barred at the time of its making. The Respondent further submitted that there are no reasonable grounds upon which the Court could extend the time for the making of this complaint.

The Claimant submitted that the narrative used on the form clearly indicated that the substance of his complaint was that he had been dismissed in circumstancesin which the funding for the project on which he had been employed was continuing. In these circumstances he contends that the termination of his employment on 31^stDecember 2012, at which point he had accrued three years and nine months continuous fixed-term employment, was wholly or mainly for the purpose of avoiding his fixed-term contract being deemed to be one of indefinite duration in accordance with s.9(3) of the Act.

The Applications Made
The Claimant made two applications to the Court. Firstly, he applied to have the form amended so as make explicit that his claim relates to s.13 of the Act. According to the Claimant, that is already implicit from what he contended on the form. In the alternative, the Claimant sought an extension of time, pursuant to s.14(4) of the Act, up to 8^thOctober 2013 for the making of that claim. In advancing that submission the Claimant sought to apportion blame for not filling out the form properly to his former representative.

Amendment of the Form
The Court first considered the application to amend the originating form.

The circumstances in which a form such as that in issue in this case can be amended was considered by the High Court in CountyLouth VEC v The Equality Tribunal and Brannigan[2009] IEHC 370. Here McGovern J pointed out that forms of this nature have no statutory basis and are intended to set out, in broad outline, the nature of the complaint. At paragraph 6.2 of his judgment the judge said the following: -

• I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, thena fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But, under the legislation, it is clear that the complaints which are made within that expanded period are not time-barred. That is not to say, that complaints going back over a very lengthy period would have to be considered, as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.

These authorities indicate that statutory tribunals, such as the Rights Commissioners and this Court, should not apply a more stringent approach to the amendment of originating forms than is applied by the ordinary courts to the amendment of pleadings. The amendment of pleadingsis governed by Order 28, rule 1 of the Rules of the Superior Courts 1986 (S.I. No. 15 1986). Consequently the starting point in considering the Claimant’s application should be the approach taken by the Superior Courts in applying that rule.

InWalter Croke v Waterford Crystal Limited[2004] IESC 97 the Supreme Court gave consideration to that question. Here Geoghegan J. (Murray CJ, Denham and McGuinness JJ concurring) reviewed the authorities and adopted the approach of the Supreme Court inO’Leary v Minister for Transport1I.L.R.M 132. The following passage appears at par 25 of the report: -

• Although there is a body of case law which has been helpfully referred to in the written submissions of the three parties, the most important legal source is the relevant rule in the Rules of the Superior Courts 1986, in that in many respects its terms are crystal clear. The relevant rule is O 28, r 1, and it reads as follows:-
  • “The Court may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.”
  While undoubtedly there is a discretion in the court as to whether to make the order or not and other factors may come into play, the primary consideration of the court must be whether the amendments are necessary for the purpose of determining the real questions of controversy in the litigation. I am in agreement with the submissions of counsel for the plaintiff that the trial judge did not adequately address that question but was much more concerned with the procedural conduct of the plaintiff. The priority which must be given to that issue was clearly restated by the Supreme Court inO'Leary v Minister for Transport[2001] 1 ILRM 132. McGuinness J sat with Denham and Barron JJ. The following passage at p 143 of the report clearly indicates the approach of McGuinness J and of the court:-
  • • “I accept that there has been undesirable delay in the prosecution of these proceedings. As Mr Gallagher submitted, the action was instituted late in the day, and having been instituted late, has been progressed by the applicant at an extremely relaxed pace. Indeed the amount of delay, and the repeated delay is the strongest argument against permitting the inclusion of a new and distinct claim of conspiracy. However this is an application under O 28, r 1, and the delays in the instant case are not outside the well established parameters of that rule. The operation of the rule was considered by Kinlen J inBell v Pederson[1995] 3 IR 511. In that case an application to amend the pleadings in a substantial and important way was made on the morning of the trial. Kinlen J allowed the defendants to amend their defence in the manner sought. In his judgment he approved the principles laid down by Keane J inKrops v The Irish Forestry Board Ltd[1995] 2 IR 113and referred also to the dicta of Lynch J inDirector of Public Prosecutions v Corbett[1992] ILRM 674, at p 678:-
      • 'The day is long past when justice could be defeated by mere technicalities which did not materially prejudice the other party. While courts have a discretion as to amendment that discretion must be exercised judicially and where an amendment can be made without prejudice to the other party and thus enable the real issues to be tried the amendment should be made. If there might be prejudice which could be overcome by an adjournment then the amendment should be made and an adjournment also granted to overcome the possible prejudice and if the amendment might put the other party to extra expense that can be regulated by a suitable order as to costs or by the imposition of a condition that the amending party shall indemnify the other party against such expenses.'
      Kinlen J adopted this reasoning as part of theratioof his judgment. It appears to me also to be an application of principle which is in accordance with justice.”

      Even if I was not bound to do so, I would have no hesitation in following that judgment. I entirely agree with the approach to the interpretation of the rule which it represents.

    
    
    

• [D]ismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration undersection 9(3).

At this stage the Respondent cannot suffer any prejudice in having the claim form amended so as to reflect the true intention of the Claimant. This is ade novohearing and the Respondent has been aware of the Claimant’s complaint under s.13(1)(d) of the Act since the hearing before the Rights Commissioner. Moreover, the Respondent has fully addressed this claim in its submission to the Court on the substantive aspects of the dispute.

Determination
The Court allows the amendment to the complaint form so as to reflect a claim under s.13 of the Act arising from the termination of the Claimant’s employment in December 2012. The Court will proceed to hear the parties in relation to that complaint. In order to avoid any possible prejudice to the Respondent the Court directs the Claimant to provide the Respondent with full particulars of the evidence upon which he will rely in advancing that claim including the names of witnesses to called on his behalf.

Signed on behalf of the Labour Court



Kevin Duffy
19th May 2014______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.