EDA1511

The Respondent did not appear at the hearing before the Equality Officer nor did it file a submission.

The claims are made on grounds of gender, family status and race. The Complainant is of Polish nationality

As is the normal practice of the Court the parties are referred to herein as they were at first instance. Hence Ms Wach is referred to as the Complainant and Travelodge Management Limited is referred to as the Respondent.

There is a net issue in the case, namely, whether the Respondent employed the Complainant at any time material to her claim.

Position of the parties
The Respondent contends that the Complainant was employed by a company named Smorgs (Ireland) Limited. That company has since transferred its business to a company named Smorgs ROI Management Limited. Travelodge Management Limited is a company incorporated under the Companies Acts which has, since these proceedings commenced, changed its name to Smorgs Property Holdings Limited.

Evidence was given by Mr Richard O’Sullivan, who is a director of Smorgs ROI Management Limited in which he told the Court that the aforementioned company is the Complainant’s employer. The Court was told that at the time material to these claims her employer was Smorgs (Ireland) limited. That company carried on business under the registered business name of ‘Travelodge’. The business of Smorgs (Ireland) Limited was transferred to Smorgs ROI Management Limited and the Complainant’s employment transferred to that company pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I.131/2003)

The Complainant’s cross appeal relates to the refusal of the Equality Tribunal to amend the name of the Respondent. It appears from the decision of the Equality Officer that the Complainant’s representative contended that since the initiation of the claim the Respondent had changed its name and that it transpired that the Respondent was a subsidiary of a larger company.

The Equality Officer found that the Respondent was correctly identified as the Complainant’s employer at the time the complaint arose and that it was her employer within the meaning of the Acts (see pars 4.1 and 4.2 of the decision)

SIPTU, on behalf of the Complainant, told the Court that all of the employment related documentation provided to the Complainant gave the name of her employer as ‘Travleodge’, or ‘Travel Lodge’. Following a search of the Companies Registrations Office the Complainant’s representative identified a company named Travelodge Management Limited, the Respondent herein, which, it was assumed, was the legal designation of the employer.

It appears that sometime in 2011 a colleague of the Complainant, in the same employment, had occasion to initiate proceeding against her employer pursuant to the Organisation of Working Time Act 1997and impleaded the Respondent. SIPTU acted for the Complainant in that case. The Respondent engaged with the Labour Relations Commission and attended a hearing before a Rights Commissioner in that complaint without objection. The matter was settled between the Respondent and the Complainant in that case.

The Complainant had occasion to initiate proceedings against her employer in 2012 pursuant to the Maternity Protection Act 1994 and the Organisation of Working Time Act 1997. The Respondent, Travelodge Management Limited t/a Travelodge Waterford was impleaded as the employer in that case. The Respondent was professionally represented in relation to that case and its representative engaged with the Union and the LRC, on behalf of the Respondent, as the Complainant’s employer without demur.

A settlement was reached in that case the terms of which were reduced to writing in a document dated 5^thNovember 2012. The document is headed“Settlement Agreement between Travelodge Management Limited and Sylwia Wach” It goes on to record that Travelodge Management Limited agreed to pay the Complainant compensation for not having received a premium for Sunday working and that the Complainant agreed to withdraw her claim under the Act of 1997 in consideration of that payment.

SIPTU further pointed out that the Respondent corresponded with the Equality Tribunal in respect of the within claim and did so without raising any objection to being impleaded as the Complainant’s employer.

The Union relied on s.88 of the Act which provides in relevant part as follows: -

• • (2) By notice in writing to the parties, the Director or, as the case may be, the Chairman of the Labour Court may correct any mistake (including an omission) of a verbal or formal nature in a decision or determination under this Part.

    (3) In this section “the parties “means—

    • (a) in the case of a decision under section 79, the complainant and the respondent as defined in section 77(4),

      (b) in the case of a determination under section 83, the parties to the appeal,

      (c) in the case of a decision under section 85, the Authority and the persons referred to in subsection (2)(b) and (c) of that section, and

      (d) in the case of a decision under section 86 or a determination under section 87, the complainant and the respondents, within the meaning of section 86.

    (4) If any person who participated in an investigation under section 79 or 86 is not correctly identified in the resulting decision or determination, the correction of that error shall be regarded as falling within subsection (2).
  
  

The Respondent, in its appeal, seeks to have the decision of the Equality Tribunal set aside as having been made against an entity that was not the Complainant’s employer. In its cross-appeal the Union seeks, in effect, to have the name of the Respondent amended to Smorgs (Ireland) Limited, or to Smorgs ROI Management Limited. The Court was informed that the Complainant has now initiated fresh proceedings before the Equality Tribunal in respect of this matter against the aforementioned company or companies.

The Complainant appears to have applied to the Equality Officer to amend the proceedings so as to correctly name the intended Respondent. That application was grounded on a belief that the Respondent herein had changed its name or that it is a subsidiary of another company. The Equality Officer correctly held that in either case a change in the name of the Respondent for the purposes of his investigation was unnecessary.

The Respondent failed to appear before the Equality Tribunal. But that was not because it regarded itself as a stranger to the proceedings. Rather, it claims that this arose through inadvertence.

The Court has no doubt that the Complainant named the wrong Respondent in her claim as a result of abona fidemistake. That state of affairs may well have been compounded by the fact that the Respondent appears to have held itself out as the Complainant’s employer in earlier proceedings. Moreover, the Respondent accepted proceedings in the within case and failed to deny that it was the Complainant’s employer until the initiation of this appeal, some 30 months after the claim was first initiated.

The only evidence before the Court is that the Complainant was never employed by Travelodge Management Limited. In the absence of any evidence to the contrary that must be accepted. Consequently, the only question that the Court must decide is whether the entity that is the actual employer can be substituted for the entity impleaded in the claim.

The Complainant relies on s.88 of the Act in urging the Court to amend the proceedings. In the Court’s view s.88 is not intended to deal with a situation such as that which arose in this case. That section is intended to enable the Court (or the Equality Tribunal) to amend a determination or a decision, as the case may be, where an error of a formal or verbal nature appears on the face of a written determination or decision. That can include a formal or verbal error in the name of a party that participated in the investigation.

What is in issue in this case does not involve a formal or verbal error. Nor does the Complainant’s application relate to a Determination issued by the Court. The wrong Respondent was impleaded and the Union’s application is to amend the claim by substituting another legal person for the Respondent cited. In the Court’s view that goes beyond was intended by s.88 of the Act.

The decision of the High Court inCounty Louth VEC v Equality Tribunal[2009] IEHC 370 is a seminal case on the question of when proceedings before a statutory tribunal can be amended. In that case McGovern J set out the following principle of law: -

• If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.

• This present case indicates a degree of formality, and even rigidity, which is somewhat surprising. It is a rather ironic turn in history that this Tribunal which was intended to save people from the ordinary courts would themselves fall into rigidity comparable to that of the common law before it was modified by equity.

Order 15, Rule 13 of the Rules of the Superior Courts (S.I. No.15 of 1986) makes provision for the amendment of proceeding initiated in the High Court in which parties are improperly named. It provides: -

• “No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added….”

The authorities on the application of O.15 r.13 of Rules of the Superior Court were considered by Kearns P. inSandy Lane Hotel Limited v Times Newspapers Limited[2011] 2 I.L.R.M 139. While that case was ultimately dealt with by application of O.15 r 2 of the Rules, (which concerns adding a person as plaintiff) in the course of his judgment the President conducted an extensive and instructive analysis of the case law on the application of O.15 r 13.

Having considered the judgment of Geoghegan J. inKennemerland Group v Montgomery[2000] 1 I.L.R.M. 370, the President referred to a long established principle that a court will not add a defendant under Ord.15, r.13 if the action against that party is quite clearly statute barred

Later in the course of his judgment the President stated : -

• Order 15, r.13 concerns the procedure for adding, substituting or striking out a party. The names of any parties may be added, whether plaintiffs or defendants, who ought to have been joined, or “whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter”.

  There are, however, two important distinctions between Ord.15, r.2 and Ord.15, r.13. First, in relation to r.13, it is not necessary for the applicant to establish that a bona fide mistake occurred. Secondly, where a court makes an order pursuant to Ord.15, r.13 the proceedings against the new party are deemed to have commenced only on the date of the making of the order adding that party. This may, therefore, have significant implications concerning the computation of the relevant limitation period in accordance with the Statute of Limitations 1957 (as amended). Ord.15, r.2 does not contain such a provision, however, it nonetheless contains the requirement that the mistake be one of a bona fide nature.

Prima facie, the time limit has passed in this case but whether that is or is not the case would depend on other considerations. In that regard it is noted that the Complainant has instituted fresh proceedings against her actual employer. It will be a matter for the Equality Tribunal in considering that claim to decide whether the claim is statute barred as against the Respondent in that case. It would be inappropriate to pre-empt the decision of the Equality Tribunal on that point, which can be appealed by either party to this Court.

Outcome
It is clear on the only evidence available that Travelodge Management Limited, the Respondent herein, was not the Complainant’s employer at any time material to this claim. For all of the reasons set out herein the Court has come to the conclusion that, notwithstanding thebona fidesof the mistake in this case, and the other circumstances referred to in the course of this Determination, the Court it cannot substitute Smorgs (Ireland) Limited or Smorgs ROI Management Limited for the Respondent against which the case was taken.

In these circumstances the Court considers that it has no option but to find that the Respondent herein has no liability to the Complainant under the Act. Consequently the decision of the Equality Tribunal cannot stand and must be set aside.

Determination
The Respondent’s appeal is allowed and the decision of the Equality Tribunal is set aside.

Signed on behalf of the Labour Court



Kevin Duffy
30th June, 2015______________________
CCChairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.