TUD168

FULL RECOMMENDATION

TU/16/16

DETERMINATIONNO.TUD168

r-152461-tu-15/JT

SECTION 11 (1), EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATION, 2003

PARTIES :

STARRUS ECO HOLDINGS T/A WASTEPAL LTD
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)

- AND -

JOHN LARKIN
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

Chairman: Mr Haugh
Employer Member: Mr Marie
Worker Member: Ms O'Donnell

SUBJECT:
1. Appeal Of Adjudication Officer Decision No. R-152461-TU-15/JT

BACKGROUND:

2. The employee appealed the Decision of the Adjudication Officer to the Labour Court on the 4 July 2016. A Labour Court hearing took place on the 1 September 2016. The following is the Court's Determination:

DETERMINATION:

Background to the Appeal

This is Mr Larkin’s appeal against a decision of an Adjudication Officer (r-152461-tu-15/JT) dated 23 June 2016. The Notice of Appeal was received by the Court on 4 July 2016.

The Adjudication Officer found the claim before him at first instance was not well founded as – in his view- there had been no breach of the Transfer Regulations (SI 131 of 2003) when the Complainant’s employment transferred from Wastepal Ltd to that of the transferee Respondent.

Jurisdictional Issue

The Adjudication Officer’s decision names the Respondent at first instance as “Starrus Eco Holdings t/a Wastepal Ltd.” The Notice of Appeal received by the Court on 4 July 2016 names the Respondent to the appeal as “Greenstar”. The title page of the Appellant’s written submission to the Court refers to “Greenstar Ltd”. That same submission contains examples of correspondence on company headed paper that identifies the Appellant’s employer as “Starrus Eco Holdings Ltd (T/A Greenstar)”.

Having consulted the Companies Registration Office’s website, the Court notes that the correct legal entity that should have been named in the within proceedings is “Starrus Eco Holdings Limited”, the registered number of which is 527552. There is no legal entity with the company name “Greenstar” registered with the Companies Registration Office.

Labour Court Precedent

This Court has recently – inSylvia Wach v Travelodge Management Limited[2016] 27 ELR 22 - considered at length the limited scope of its jurisdiction to amend the name of a party to an appeal before it. As that determination was adverted to by the Court in the course of the within hearing, it is worth quoting the following material passage from the Court’s decision in that case:

“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.”

Ms Wach’s case originated as a complaint under the Employment Equality Act 1998. Hence the reference to section 88 of that Act in the passage just quoted. The within proceedings are before the Court pursuant to section 44 of the Workplace Relations Act 2015. Subsection (8) of that section is worded in like manner to section 88 of the Employment Equality Act 1998 and provides as follows:

“(8) The Labour Court may, by notice in writing given to the parties to an appeal under this section, correct any mistake (including any omission) of an administrative or clerical nature in a decision under this section in relation to the appeal.”

The Court in this instance is therefore, likewise precluded from amending the proceedings to the same extent that it was inSylvia Wach v Travelodge Management Limited[2016] 27 ELR 22.

Determination

On the basis that the Notice of Appeal received by the Court does not name the Respondent to the appeal in the same format as the title given to the Respondent at first instance by the Adjudication Officer or indeed in accordance with that of any legal entity registered on the Companies Registration Office’s website, the Court has no option but to decline jurisdiction in the within matter.

The Court so determines.

Signed on behalf of the Labour Court

Alan Haugh
LS______________________
28 September 2016Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.