FULL RECOMMENDATION
SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2014 PARTIES : PAVEMENTSIDE LIMITED - AND - CATHAL O' TOOLE DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Decision no. ADJ-00013596.
BACKGROUND:
2. This is an appeal of a Decision of the Adjudication Officer to the Labour Court in accordance with Section 8(1) of the Terms of Employment (Information) Acts, 1994 to 2012. A Labour Court hearing took place on the 12 September 2018. The following is the Determination of the Court:-
DETERMINATION:
Preliminary Issue
An application has been made by Mr Cathal O’Toole (“hereinafter referred to as the Applicant”) to correct the name of the Respondent in Adjudication Officer’s Decision ADJ-00013596 as it incorrectly stated the name of his former employer. The Decision stated that his employer was Br�, which is a public house licensed premises. The Applicant sought to correct the employer's name to Pavementside Limited.
In support of his application, the Applicant stated that he had not received a statement or a contract of employment setting out the name of his employer when he commenced employment on 9thDecember 2016, nor any at any time thereafter. He stated that he did not receive payslips until 19thFebruary 2017. He said that the branding on the work clothing provided to him and on other merchandise simply said “Br�” and that within the workplace the employer was only ever referred to as Br� or Br� House Fairview. The Applicant produced a copy of his P45 furnished to him on the termination of his employment, this document failed to give the name and address of his employer. The Applicant said that when submitting his claim to the Workplace Relations Commission (WRC), he telephoned the WRC and sought advice from it on completing the form, due to difficulties he encountered in entering the correct details of his employer, including the employer registered number on the WRC online application system. However, in his attempt to provide the correct information, and on foot of advice he received from WRC staff, he included his payslips, which identified the employer as Pavementside Limited, along with the complaint form.
In his appeal form to the Court, under the heading ‘Respondent’s Details’ the Applicant cited the name ‘Mr Daire Harlin’ as the name of his former employer and gave the Company name as ‘Karpview Limited, Pavementside Limited’. The Applicant also included both the trading address of the public house in Fairview, Dublin 3 and the registered legal address of Pavementside Limited, Oaktree Business Park, Unit 5 Site 6, Trim, Co. Meath.
Mr Daire Harlin (“hereinafter referred to as the Respondent”) in his written submission to the Court stated that he represented a company by the name of Karpview Limited, he said that Karpview was not the Applicant’s employer.
At the hearing before the Court Mr Harlin stated that, as the sole Company Director of Pavementside Limited, he was the Applicant’s employer during the relevant period i.e. between 9thDecember 2016 and 21stMay 2017 when his employment was terminated. However, he maintained that incorrect details were submitted by the Applicant on the WRC claim forms therefore he was not legally responsible for the claims before the Court.
Determination on the Preliminary Issue
Having considered the submissions of both parties, the Court in exercise of its powers under Section 39(2) of the Organisation of Working Time Act, 1997 determines that the name of the employer in Adjudication Officer’s Decision ADJ-00011979 shall be changed from Br�, 12 Fairview, Dublin 3, D03C998 to Pavementside Limited, c/o Br� Brewery, Unit 5, Site 6, Oaktree Business Park. Trim, Co. Meath.
Claim under the Terms of Employment (Information) Act 1994
This is an appeal by Mr Cathal O’Toole (“hereinafter referred to as the Complainant”) against Adjudication Officer’s Decisions ADJ-00013596 which held that she had no jurisdiction to hear the complaint in circumstances where the Complainant had cited an incorrect employer name.
The Complainant referred his claim to the Workplace Relations Commission on 1stFebruary 2018 under the Terms of Employment (Information) Act 1994 (hereinafter referred to as “the 1994 Act”) alleging that he was never supplied with a statement of his terms and conditions of employment by his former employer, Pavementside Limited (“hereinafter referred to as the Respondent”).
The Respondent raised a preliminary issue that the claim was submitted outside the statutory time limit.
The Law
Section 41(6) and (8) of the Workplace Relations Act 2015 (‘the 2015 Act’) provides as follows:-
- 41(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
41(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.
The within claim was presented to the Workplace Relations Commission on 1stFebruary 2018. No application was made for an extension of time. As the Complainant’s employment terminated on 21stMay 2017 the claim was presented out of time and is consequently statue barred.
DETERMINATION
The Court finds that the claim under the 1994 Act was presented outside the time limit prescribed by Section 41 of the 2015 Act. Accordingly, the claim is statute-barred and the Court has no jurisdiction to investigate the complaint. Therefore, the appeal fails.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
17 September, 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.