Complainant

Respondent

Anonymised Parties

Bar Manager

Publican

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00015901-001

20/11/2017

The Complaint contended that he was employed by the Respondent from 9 December 2016 to 22 May 2017 when his employment was terminated. The Complainant referred a complaint to the Workplace Relations Commission on 20 November 2017 alleging the Respondent had breached the Payment of Wages Act 1991 in that he had not been paid for all the hours he had worked.  

The Complainant has also submitted complaints under the Unfair Dismissals Act 1997 and the Terms of Employment (Information) Act 1994 in respect of the same employment under reference ADJ-00013596.

The Respondent who was named on the complaint form attended the Adjudication Hearing. He maintained that he was not the correct Respondent.   Another party, who stated that he was the Complainant’s employer for the period covered by this complaint, also attended the Adjudication Hearing.

The Complainant (who was unrepresented) indicated that he had difficulty entering the correct name of the Respondent on the complaint form and that he mistakenly entered the trading name instead of the name which was shown on his payslips. He indicated that it had been his intention to name the correct Respondent on the complaint form.

The Respondent said that he was the owner of the trading name of the business where the Complainant was employed but that he was not the correct Respondent for the purpose of this claim. He said that he had licensed the trading name to the Complainant’s former employer.

The Complainant’s former employer said that the registered name and number of the Complainant’s employer was shown on the payslips which the Complainant had submitted to the WRC prior to the Adjudication Hearing. At the Adjudication Hearing, the former employer submitted a copy of the Complainant’s P45 which showed the same PAYE registered number as the registered number on the payslips. He also submitted a copy of the Complainant’s New Employment Details Form which showed the same employer as the employer named on the payslips.

The Complainant’s former employer objected to being substituted as the Respondent in this case.

Before deciding on the substantive issue, I must first decide whether or not the name of the Complainant’s employer for the period encompassed by this Complaint can be substituted for the Respondent named on the complaint form.

Section 39 of the Organisation of Working Time Act 1977 provides that –

“(1) In this section ‘relevant authority’ means an Adjudication Officer ….

(2)  A decision (by whatever name called) of a relevant authority under this Act or an enactment or statutory instrument referred to in the Table to this subsection [the said Table includes the Unfair Dismissals Acts] that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by any party concerned, be amended by the authority so as to state correctly the name of the employer concerned or the other material particular.

(3)  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.

(4)  If an employee wishes to pursue against a person a claim for relief in respect of any matter under an enactment or statutory instrument referred to in subsection (2), or the Table thereto, and has already instituted proceedings under that enactment or statutory instrument in respect of that matter, being proceedings in which the said person has not been given an opportunity to be heard and–

(a)  the fact of the said person not having been given an opportunity to be heard in those proceedings was due to the respondent's name in those proceedings or any other particular necessary to identify the respondent having been incorrectly stated in the notice or other process by which the proceedings were instituted, and

(b)  the said statement was due to inadvertence, then the employee may apply to whichever relevant authority would hear such proceeding in the first instance for leave to institute proceedings against the said person (‘the proposed respondent’) in respect of the matter concerned under the said enactment or statutory instrument and that relevant authority may grant leave to the employee notwithstanding that the time specified under the enactment or statutory instrument within which such proceedings may be instituted has expired:

Provided that that relevant authority shall not grant such leave to that employee if it is of opinion that to do so would result in an injustice being done to the proposed respondent.

In deciding if the name of the Respondent can be amended, I have taken account of the determination of the Employment Appeals Tribunal (EAT) in Jeevanham Al Tambraga v Orna Morrissey and Killarney Avenue Hotel (UD36/2011). In its majority determination, the EAT found that while Section 39 of the Organisation of Working Time Act gave certain scope to the Tribunal to amend the name of the Respondent, this is qualified in that there must be inadvertence on the part of the relying party to justify the making of an amendment.  

The Tribunal went on the find that “… there is no inadvertence in this matter. In evidence the claimant stated that he had his payslips which clearly state his employer …”.

Whilst I recognise that the Complainant was unrepresented, I find that the name of the Complainant’s employer was clearly stated on all the payslips which the Complainant submitted to the WRC prior to the hearing.

I find, therefore, that I do not have the jurisdiction under Section 39 of the Organisation of Working Time Act 1977 to change that name of the Respondent in these proceedings to that of the Complainant’s former employer.

I have evaluated all the evidence adduced in this case. I am satisfied that no employment relationship existed between the Complainant and the named Respondent. I find that the Complainant has named the incorrect Respondent as employer in these proceedings.

I find that I do not have jurisdiction to hear this complaint.

Having carefully considered all evidence available to me, I find that I do not have jurisdiction to hear this complaint.

Wrong Respondent, Jurisdiction