EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1249/2013
CLAIM OF:
Kevin Granaghan
against
DSV Solutions Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr D. Peakin
Ms E. Brezina
heard this claim at Dublin on 2nd July 2015
Representation:
Claimant : Mr Seamus Clarke B L instructed by Coonan Cawley, Solicitors, Wolfe Tone House, Naas Town Centre, Naas, Co Kildare
Respondent : Mr Tom Mallon B L instructed by Ms Pauline O'Hare, IBEC ltd., 84-86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:
The Tribunal has carefully considered the submissions made by the legal representatives for the parties in this case.
The matter came before this division of the Employment Appeals Tribunal on foot of a workplace relation complaint form filed with the Employment Appeals Tribunal on the 11th of September 2013. The form claims unfair dismissal against the employer known as Grafton Recruitment (GR) with a registered address at 78 Walkinstown Road, Dublin 12, a well-known workplace placement agency operating within the jurisdiction of this State. The form details the work address being DSV Packaging operating in Tougher Business Park in Naas.
The Tribunal notes that the employer GR is cited in the workplace relations complaint form as two addresses-the registered office and the address at Tougher Business Park. In so far as the Tribunal can rely on those details outlined in the complaint form, it is worth noting that the claimant states he was dismissed on the 7th of May 2013 by an individual from GR.
It was indicated to the sitting division of the Tribunal that this matter came before another division of the Tribunal some eight months ago when the claimant and the entity known as GR came before the Tribunal for hearing. At that time, representatives for the entity known as GR successfully argued that GR should be released from those proceedings in light of the provisions of section 13 of the Unfair Dismissals Act, 1993, which section provides that the end user of the services provider by an individual placed by an employment agency shall be liable for any redress awarded under the Unfair Dismissals legislation. Accordingly, the section provides that the individual shall be deemed an employee of the end user under a contract of employment for the purposes of the Act.
This division of the Tribunal has therefore been told that GR successfully argued that for the purpose of Unfair Dismissal legislation only, the entity known as DSV Packaging should have been considered as the correct employer in circumstances where the claimant had been placed by the GR employment agency in the DSV packaging plant in Tougher Business Park since February 2012.
As this division of the Tribunal understands it, GR was released and the entity known as DSV Packaging at Tougher Business Park was invited to attend the Tribunal at an adjourned date which ultimately is the date on which this matter came before this division of the Tribunal.
It is noted that (to date) no (formal) Order has been made to identify the respondent as being anyone other than GR (as per the workplace relations form) and in particular the claimant accepted that this matter was simply adjourned to the new hearing date to allow for a formal representation be made by the entity known as DSV Packaging (as named in the workplace relations form)
Robust representation was made on the part of DSV Packaging to the effect that legally speaking they were put on notice of their having any role in the proceedings arising out of the termination of the claimant’s employment some eighteen months after the said termination (and on foot of whatever communication emanated from the EAT after the November 13th hearing) It was put to the Tribunal that the time limits for bringing proceedings against a proposed employer had long since expired and it was not permissible for the Tribunal to direct a new workplace relations complaint form to issue and it is further accepted that the previous division would not have had this power either as the twelve months (allowed under the legislation) had expired when GR and the claimant had appeared before that division in November 2014.
Ultimately, the claimant requested that this division of the Tribunal exercise its power to give leave to the claimant to institute proceedings against a “proposed respondent” where due to inadvertence a named respondent has been incorrectly identified in some material particular.
This power lies within the provisions of section 39 of the Organisation of Working Time Act, 1997.
The claimant invited the Tribunal to follow the reasoning of Hogan J. in the case of O’Higgins –v-University College Dublin + Anor wherein the judge found that it would be grossly disproportionate to disallow the claimant to proceed by reason of a technical error(ie name the two directors instead of the limited company). This Tribunal has been invited to re-look at the initial workplace relations complaint form and correct the misstatement contained therein whereby DSV packaging at Tougher Business Park should have been named as the employer.
For its part the entity known as DSV Packaging argued that such a correction would go way beyond the power envisaged that the Tribunal would have in such circumstances. In reliance on its position the letter sent by the claimant, dated the 10th July 2013, in the immediate aftermath of the termination of the employment demonstrates that the claimant and/or his legal advisers knew or ought to have known that the claimant was an employee of either GR or DSV Packaging and that faced with this uncertainty it was reckless of them to proceed against one party only (GR)
The Tribunal has to accept that any ordinary reading of the workplace relations complaint form which issued on 11th September 2013 discloses an intention to nominate GR as the employer for the purpose of the Unfair Dismissals legislation and that the fact that the name of DSV packaging appears on the form at all is purely incidental and intended only to provide a place of work. The Tribunal finds that it cannot under section 39 replace one proposed employer with another as such correction goes well beyond the Tribunal’s power to correct a maternal particular which appears by reason of inadvertence.
The claimant’s application pursuant to section 39 must therefore fail.
Accordingly, the Tribunal must decline jurisdiction against the notice party for the claim under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)