Complainant

Respondent

Anonymised Parties

A Shop Assistant

A Grocery Store

Representatives

Matthew Holmes BL instructed by Cullen & Co., Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00011627-001

29/05/2017

The complainant was employed as a shop assistant from the 15th of October 2011 until the 23rd April 2017. She claims that she was unfairly dismissed. The respondent submitted that the complaint was referred against the incorrect respondent.

Jurisdiction Issue

The respondents case is that the complainant has named the incorrect employer on her complaint form. She named XX/ EE as the employer. It was submitted that this is not a legal entity and neither is it the complainant’s employer. The complainant was at all material times employed on a part time basis by XXXX Ltd. The complainant has not sought to amend the proceedings and she is now statute barred from doing so. It was submitted that the fact that the respondent named was not the complainant’s employer was notified to the complainant on the 10th of October 2017, by way of letter from their solicitor to the WRC. The solicitor alerted the complainant to the fact that she had named the incorrect employer and provided the correct name to her. The complainant did not amend her complaint form. If the complainant had corrected the matter at that stage her complaint would have been referred within the statutory 6-month timeframe. She is now time barred from doing so.

The respondent cannot accede to any request to amend the complaint form at this stage. It was submitted that the complaint must fail as it has been referred against the wrong employer and that the complainant is out of time to begin a case against the correct employer.   I was referred to the Labour Court decision in the case of Sylvia Wach v Travelodge Limited [2016] 27 ELR 22. It was submitted that this case had similar facts to the case herein where the complainant had named the wrong employer. The Labour Court held that it did not have the power to amend the complaint form.   In the complaint herein, the complainant was informed by the respondent of the difficulties in her claim and had an opportunity to amend her claim naming the correct employer and she has failed to do so. Therefore, her complaint must fail. Following a request for a further submission on Section 39 of the Organisation of Working Time Act 1997 and the application of the High Court Judgment in the case of Capital Food Emporium (Holdings) Limited (Formerly Capital Food Emporium Limited) v John Walsh v the Employment Appeals Tribunal [2016] IEHC 725 unreported, the respondent’s barrister submitted the following:

It is clear from this subsection that the complainant must show that she misidentified the party due to inadvertence. Here the Complainant was notified in advance that that XX/EE is not her employer and was given an opportunity to amend her claim within the time limits. Where she did not do so it cannot be said that the misstatement was due to inadvertence and this subsection and the powers to add or amend parties under it cannot apply.

Further the respondent is not on notice of any application by the complainant for leave and granting such leave would do an injustice in circumstances where the Complainant was notified in advance, failed to amend her claim, the statute ran out and the case was then heard.

In Wach v Travel Lodge [2016] 27 ELR 22 it was held that “the court could not substitute the name of the employer as the time limit for the claim had expired. It was not appropriate to exercise a discretion to substitute a party to the proceedings where the limitation period had expired as against that party”.

In the Supreme Court decision in Sandy Lane Hotel v Times Newspapers [2011]3 IR 334, which was referred to by Mr Justice Barrett in Capital Food Emporium and by the Labour Court in Wach, it was held that it is a long established principle that a court will not add a defendant if the action against that party is clearly statute barred. The Supreme Court would not allow the amendment of a name from SandyLane Hotel Ltd to Sandy Lane Hotel Co Ltd. This was distinguished by Mr Justice Barrett in Capital Food Emporium on the basis that

“ the appellants in Sandy Lane Hotel contended that Sandy Lane Hotel Limited was not the right party to the proceedings whereas in the within proceedings Capital Food Emporium Limited repeatedly acknowledged that it was the correct party to the within proceedings, until it suited it to seek, entirely unconvincingly, to deny this , (B) the Supreme Court, in SandyLane Hotel, appears to have placed no little emphasis on the fact that the basis for the confusion arising derived from “a complicated series ofarrangements made for tax planning purposes, in which they [the respondent and those behind it] obviously had the benefit of the best legal and taxation advice “whereas in the within proceedings Ms Stewart is a so-called ‘ordinary’ person who was acting with the benefit of trade union assistance: she is not a sophisticated commercial group acting with the benefit of ‘blue chip’ legal and tax advice, and (C) the Supreme Court, in Sandy Lane Hotel, also seems to have had regard to the fact that the company secretary appears to have been, perhaps, somewhat sanguine in terms of seeking to join the right party whereas Ms Stewart has always sought to bring her claim against the correct party and, again, was repeatedly acknowledged and accepted by that party as having pursued the correct party until it elected, unconvincingly, to deny this.”

The respondent’s barrister submitted that in in the present case the circumstances grounding Mr Justice Barret’s distinction of Sandy Lane do not arise. At no point has it been acknowledged or accepted that XX/EE was the complainant’s employer. Nor is it the fact that the complainant has always sought to bring her claim against the correct party. The opposite is the case- despite being notified of this in advance the complainant failed to amend her claim. The naming of the incorrect party is not a mere clerical error but a fundamental error which goes to the jurisdiction of the case as well as the jurisdiction of any award which may be made. The error made by the complainant is not a clerical error of the kind which can result in an amendment or substitution of parties, particularly where she was advised of the correct parties. The applicant to this case has at no stage sought to amend her pleadings and is now statute barred from doing so.

Substantive Complaint

In relation to the complaint of unfair dismissal, it was also submitted that the complainant was not dismissed but her contract was terminated by mutual consent.

The store manager submitted that the complainant worked with the respondent as a part-time shop assistant on Saturdays and Sundays and occasionally one other day during the week. She said that she was in charge of the rosters and the complainant came to her in March 2017 to say that she was resigning in April. The manager said that she was doing up the rosters for Easter and she texted the complainant to enquire about the last day she was working. The complainant then approached her and asked if she could stay on and the manager said that she agreed. About 2 weeks after that the complainant went out sick and did not show up for work.   The manager said that the owner of the shop Mr. XX then decided to accept the complainant’s resignation and to terminate her employment. The complainant came into the shop to find out the days she was rostered to work and she informed her that she was dismissed as Mr. XX had decided to accept her resignation.

The complainant said that she has named the correct respondent and states that the name of the employer on the pay slip was the name she put on her complaint form. She accepts that she got a letter telling her that the name of the employer was XXXX Ltd but she was not sure what she had to do.

The complainant said that she tendered her resignation to the respondent at the end of March 2017 because she was doing a degree and she was doing some relief work with another employer. In the meantime, she decided to withdraw her resignation and the manager accepted that she could withdraw it. On Thursday, the 27th of April 2017, she went into the shop to check the roster but her name was scribbled out. She then rang the manager and she was informed because she was out sick her resignation had been accepted. She states that she was unfairly dismissed.

Finding on Jurisdictional Issue

The first matter I must decide is whether the name of the respondent named on the complaint can be changed to the correct legal name of the complainant’s employer. The respondent submitted that the complainant was employed by XXXX Ltd and not by XX/EE. The complainant contended that EE was on her pay slip and it was the name over the door of the shop. The complainant accepted that she received a letter informing her of the correct name of the employer but she did not respond to it.

Section 39 of the Organisation of Working Time Act of 1997 provides, inter alia, as follows:

“(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.

Section 39 of the Organisation of the Working Time Act, 1977 provides that the name of the employer cited on the complaint form can be amended in certain circumstances. The respondent submits that I have no power to amend the name of the employer per the Sylvia Wach case cited above.   The Labour Court, in finding against the complainant in that case, and after having considered a number of Superior Court judgments stated that “while there are some apparently divergent decisions on this subject, the preponderance of authority is that the Superior Courts will not add or substitute a party to proceedings where the limitation period in the action has expired as against that party.”

In the case herein, the respondent named by the complainant (XX/EE) was provided with the complaint form by a letter from the WRC dated the 6th of June 2017. A letter dated the 10th of October from the solicitor acknowledged receipt of the complaint and went on to say that the named employer was not the correct employer. The solicitor also identified the correct employer as XXXX Limited. The store manager of the respondents shop together with the solicitor and barrister attended the hearing.

In considering whether the name can be amended, I have applied the jurisprudence in the High Court case of Capital Food Emporium (Holdings) Limited cited above. This was an unfair dismissal claim referred by a former employee of Capital Food Emporium to the Rights Commissioner. The representative for the employer acknowledged receipt of the complaint under the Unfair Dismissals Act 1977 as amended, but failed to attend the Rights Commissioner hearing. A recommendation was issued and the employer appealed it to the EAT and then withdrew the appeal before the hearing. The former employee applied to the EAT seeking implementation of the Rights Commissioner’s recommendation and at that stage the representative of Capital Food Emporium Ltd notified that the recommendation was made against the wrong employer. After an application under Section 39 of the Organisation of Working Time Act 1977 the Rights Commissioner issued a correction order amending the name to the correct employer’s name. The former employee then applied to the EAT for implementation of the recommendation which was granted. Capital Food Emporium Ltd., then applied for a judicial review on a number of grounds including that the Rights Commissioner and the EAT acted ultra vires.

Mr. Justice Barrett in his judgment stated that the maxim quod approbo non reprobo applied (‘That which I approve, I cannot disapprove’), because after acknowledging and accepting that Capital Food Emporium Limited was properly the party concerned with the employment dispute they could not withdraw from this position.  Mr Justice Barrett said:

“…the making of the correction order must be viewed in the context of Capital Food Emporium Limited having

(a) submitted to the jurisdiction of the Rights Commissioner,

(b) sought in its letter of 10th September, 2012, the “understanding” of the Rights Commissioner for the purpose of seeking a re-hearing of the complaint, and

(c) confirmed and acknowledged, when lodging its appeal, on 21st September, 2012, that it was the relevant party concerned with the employment dispute.”

In relation to applying the jurisprudence of the Supreme Court judgment in the Sandy Lane Hotel cited above, I note that Justice Barrett drew a distinction between the jurisprudence in that case and the Capital case on the basis of the legal advice available to the parties, stating ““whereas in the within proceedings Ms Stewart is a so-called ‘ordinary’ person who was acting with the benefit of trade union assistance: she is not a sophisticated commercial group acting with the benefit of ‘blue chip’ legal and tax advice,”

The complainant in the case herein had neither the benefit of trade union advice or legal advice in relation to her claim and it can be distinguished from the Sandy Lane Hotel judgment for the same reason. In the circumstances and in applying the jurisprudence in the Capital Food Emporium Limited, I can see no reason why the name of the employer cannot be amended to the correct legal name particularly given the respondent’s solicitor   letter to the WRC acknowledging receipt of the complaint, pointing out that the named respondent was not the employer, giving the correct legal name of the employer, attending the hearing and a witness giving evidence in relation to the circumstances of the dismissal. There was no evidence submitted at the hearing that the legal employer XXX Ltd was not given an opportunity to be heard or suffered any prejudice.  

Having regard to the foregoing, I am satisfied that it would be an injustice not to allow the complainant to proceed with her claim in all the circumstances. Therefore, I am exercising my power under Section 39 of the Organisation of Working Time Act 1997 to amend the name of the employer to the correct legal entity.

Finding on the Substantive Issue

The matter I have to decide is whether the complainant resigned or if she was dismissed. I note that it was common case that the complainant tendered her resignation at the end of March 2017 and in or around the 9th of April 2017, the complainant withdrew her resignation and the manager told her she could stay in the employment. I note that the complainant was out of work sick 2 weeks after she was allowed to withdraw her resignation and the manager’s evidence was that Mr. XX then decided to accept the resignation. I am satisfied therefore that this was dismissal as the withdrawal of her resignation was already accepted by the manager and she was rostered to work.

Section 6 of the Unfair Dismissals Act 1977 as amended provides inter alia as follows:

“(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Subsection (4)(b) provides that “the dismissal of an employee will not be unfair if it results wholly or mainly from inter alia the conduct of the employee”. In addition, subsection (7) provides that where appropriate regard may be had “to the reasonableness or otherwise of the conduct of the employer in relation to the dismissal.”

Therefore, the burden of proof rests with the respondent to demonstrate the dismissal was neither substantially nor procedurally unfair. I note that the complainant was not provided with any good reason for her dismissal. The decision it would appear was connected to the fact that the complainant was on sick leave. I am satisfied there were no substantial grounds for the dismissal. The dismissal was both procedurally and substantially unfair given the complete lack of procedures and the manner in which the dismissal was carried out. It is fundamental to any dismissal that fair procedures are applied and that the person being dismissed knows the reasons and has an opportunity to respond and to appeal the decision. For all of the above reasons, I find that the complainant’s dismissal was unfair within the meaning of the Act.

Regarding mitigation of loss, I note that the complainant was completing her degree and also working for the respondent on Saturdays and Sundays. She was also doing work placement for college and was successful in getting on a relief panel for social care work at the time of her dismissal. She said that she got a number of shifts from April until she got full-time work in August. It seems reasonable to assume the complainant would have given up her weekend work with the respondent when she got fulltime work.   

In all of the circumstances, I award the complainant 10 weeks pay in respect of the financial loss incurred from the end of April 2017 until the end of July 2017. The sum awarded is €150 (net weekly pay) x 12 = €1,500.

I find that the complaint made pursuant to the Unfair Dismissals Acts is well founded and I award the complainant the sum of €1,500 compensation.

Unfair Dismissal, correct name of employer, resignation or dismissal, complaint upheld- compensation.