ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014485
Parties:
| Complainant | Respondent |
Anonymised Parties | A Craft Worker | A Construction Company |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00018933-002 | 03/05/2018 |
Date of Adjudication Hearing: 18/07/2018
Workplace Relations Commission Adjudication Officer: Stephen Bonnlander
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant filed his complaint on 3 May 2018. The case was then delegated to me for investigation and decision on 12 June 2018. The respondent which the complainant named in his complaint form turned out to have been dissolved in 2014, before the complainant was even hired. The complainant provided the correct current address for the successor company, which has the same name with a very minor spelling variation. Nevertheless, the hearing notification sent there was returned to the Commission, marked “gone away”. Therefore, at the hearing of the complaint, I first inquired into this problem, to ensure that the Commission had jurisdiction to entertain this complaint. At the day of the adjudication hearing on 18 July 2018, the complainant was in attendance. When asked about the situation with the dissolved company, he credibly asserted, and subsequently proved with written evidence, that the company had been re-established, and spelled, as noted, with an extremely minor variation on the original name, after the current owner split from his former business partner. A check of the CRO register confirmed the facts as provided by the complainant. The complainant also asserted, and supported this with written evidence, that the new company still used the old name at times on its documentation. Section 39 of the Organisation of Working Time Act, 1997, provides that I do have the power to change the name of a respondent, especially in situations like the one on hand, provided that the respondent consents to such a change. This condition is set down in Section 39(3), where it says: The power of a relevant authority under subsection (2) shall not be exercised if it would result in a person who was not given an opportunity to be heard in the proceedings on foot of which the decision concerned was given becoming the subject of any requirement or direction contained in the decision. However, given that neither the respondent, nor the respondent’s successor company, despite having been notified by post at its current address, were present at the hearing, I find I cannot exercise the power to change the respondent’s name under S. 39 of the Organisation of Working Time Act. Neither do I have the power to examine whether the complainant’s employer may have misrepresented its name to the complainant (even with documentary proof provided that it continued to use its old name on its documentation), as the Workplace Relations Act 2015, as amended, does not provide me with any such powers. Accordingly, I must find that I do not have jurisdiction to investigate this matter as the within respondent was dissolved in 2014. I note with regret the detrimental situation which this creates for the complainant, whose integrity and goodwill are not in doubt for me. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 11 of the Minimum Notice and Terms of Employment Act, 1973 requires that I make a decision in relation to the complaint in accordance with the relevant redress options.
As set out in detail above, I find that I lack jurisdiction to investigate this matter, as the respondent company named in the within proceedings has been dissolved. |
Dated: 7th August 2018
Workplace Relations Commission Adjudication Officer: Stephen Bonnlander
Key Words:
Minimum Notice and Terms of Employment Act, 1973 – respondent company dissolved – no jurisdiction to correct name pursuant to S. 39 of Organisation of Working Time Act 1997 unilaterally – no jurisdiction to investigate possible misrepresentation – no jurisdiction. |