Representatives

SIPTU

Mr. Tiernan Lowey B.L. on the instructions of DAS Group

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-00016719-001

10/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00016719-002

10/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016719-003

10/01/2018

The Complainant was employed as a General Operative in a restaurant owned by Mr. X and Mrs. X from 22 April, 2008 until 21 August, 2017 when her employment was terminated. The Complainant claims that she was unfairly dismissed from her employment without any due process or disciplinary procedures. The Complainant claims that she did not receive her statutory notice entitlements under the Minimum Notice and Terms of Employment Act 1973 when her employment was terminated by way of dismissal. The Complainant also claims that the Respondent failed to pay her appropriate annual leave entitlements on the termination of her employment contrary to the provisions of Sections 19 and 23 of the Organisation of Working Time Act 1997.

On the Complaint Referral Form which was submitted to the WRC in relation to this matter, the Complainant identified the trading name of the restaurant (referred to hereinafter as “the ABC”) as the Respondent/Employer in the instant proceedings. The WRC received correspondence dated 11 September, 2018 from the legal representatives acting on behalf of the owners of the restaurant, namely Mr. X and Mrs. X, in which it was submitted that the Complainant had named the incorrect entity as the Employer/Respondent in the instant proceedings. It was further submitted that the ABC is not a legal or juristic person, and therefore, has no capacity to participate in the instant proceedings. It was confirmed that the Complainant’s employer, Mr. X and Mrs. X, was not willing to consent to any amendment to the title of the proceedings and it was requested that the proceedings be dismissed in circumstances where they have been improperly instituted. It was also indicated by the legal representatives acting on behalf of Mr. X and Mrs. X that their preference was to avoid having to attend the scheduled hearing on 18 September, 2018 but would do so, if necessary, for the purpose of advancing the aforementioned preliminary objection. It was further submitted that any such attendance should not be regarded as a submission by its client to the jurisdiction of the Adjudication Officer to hear the Complainant’s substantive claims or to its agreement to the amendment of the title of the instant proceedings.

The WRC responded to the legal representative for Mr. X and Mrs. X on 12 September, 2018 and indicated that the aforementioned letter had been copied to the Complainant and that this issue of jurisdiction would be dealt with as a preliminary matter by the Adjudication Officer at the hearing on 18 September, 2018. The hearing proceeded on this date and the Complainant, her Trade Union representative and the legal representatives acting on behalf of Mr. X and Mrs. X were in attendance. Neither Mr. X or Mrs. X attended the hearing. Both parties were afforded the opportunity to address the jurisdictional issue at the oral hearing and the hearing was adjourned following the conclusion of submissions on this issue.

The Complainant’s representative also made an application pursuant to Section 39(4) of the Organisation of Working Time Act 1997 at the oral hearing on 18 September, 2018 for leave to institute fresh proceedings against Mr. X and Mrs. X in relation to the matters which are subject of the instant complaints. Both parties were afforded the opportunity to make oral submissions on this matter at the hearing on 18 September, 2018.

I subsequently wrote to the parties on 27 November, 2018 and informed them that I intended to reconvene the hearing on 29 January, 2019 in order to afford Mr. X and Mrs. X an opportunity to be heard in relation to the Complainant’s application pursuant to Section 39(4) of the Organisation of Working Time Act 1997. I received a letter from the legal representatives acting on behalf of Mr. X and Mrs. X dated 27 December, 2018 to confirm that they would not be attending the hearing on 29 January, 2019 and that they were satisfied all relevant submissions in relation to this matter had been made on their behalf at the adjourned hearing on 18 September, 2018.

In the circumstances, I wrote to both parties on 23 January, 2019 and informed them that I would not be proceeding with the reconvened hearing on 29 January, 2019 and that I would proceed with my deliberations on this matter and issue a written decision in relation to the application pursuant to Section 39(4) having regard to the oral and written submissions which had already been made by both parties on this matter.

Preliminary Issue

The legal representatives acting on behalf of the owners of “the ABC” (namely Mr. X and Mrs. X) submitted that the Complainant has named the incorrect legal entity as the Employer/Respondent to these proceedings. It was submitted that the instant proceedings should be dismissed in circumstances where they have been improperly instituted, fail to disclose any legitimate or justiciable cause of action, and are thus bound to fail. The following points were also relied upon in support of this position:

·         The ABC is merely the name of the restaurant and is not a legal person with the necessary juristic quality to participate in proceedings. It has no legal capacity or personality to enter into a contract of employment with the Complainant or any other party. In those circumstances, there can be no contract of employment between the Complainant and the named Respondent. In the circumstances, the instant proceedings are wholly misconceived and incorrectly instituted.

·         There exists no legal mechanism or statutory power conferred upon an Adjudication Officer within the amended versions of either the Workplace Relations Act 2015, the Unfair Dismissals Act 1977, the Minimum Notice and Terms of Employment Act 1973 or the Payment of Wages Act 1991 to amend the title of proceedings in cases before them save for very limited and express circumstances and only where a decision has already issued. A party who has failed to name the correct Respondent has only one option, namely the issuance of a fresh claim subject to the statutory time limits. It was submitted that the relevant time limits for initiating the complaint under the abovementioned enactments has passed, and therefore, are statute barred.

·         While there are no provisions contained in Irish law statutes permitting the amendment of the title of proceedings prior to the commencement and, indeed, conclusion of any related hearing, there are very discrete provisions that provide equivalent statutory recognition to the slip rule, long applied in the context of the civil courts. The Complainant cannot seek to invoke Section 41(16) of the Workplace Relations Act 2015 and/or Section 39(2) and (3) of the Organisation of Working Time Act 1997 to amend or correct the title of the proceedings in the circumstances of the instant case as these provisions relate specifically to the correction and/or amendment to the title of proceedings in very specific and limited circumstances where a decision has already been issued by the relevant authority. It was submitted that the Adjudication Officer has not issued a decision in relation to the instant complaints, and therefore, the aforementioned legislative provisions are not applicable in the circumstances of the instant case.

The legal representative acting on behalf of Mr. X and Mrs. X also made the following submissions in response to the Complainant’s application pursuant to Section 39(4) of the Organisation of Working Time Act 1997 for leave to institute fresh proceedings against Mr. X and Mrs. X in relation to the instant complaints.

·         In any such application, the Complainant bears the onus of proof, namely that the failure to name the correct party “was due to inadvertence”. It was submitted that the Complainant has failed to establish that the failure to identify the correct Employer/Respondent in the initial proceedings was due to inadvertence.

·         It is the duty of any party who wishes to initiate proceedings under the abovementioned enactments to ensure, firstly, that they have identified the correct employer. The Complainant was provided with a written contract of employment which identified the name of her employer as “Mr. X”. In the circumstances, the Complainant was fully aware of the correct title of her employer and the obligation rested with her to identify the correct respondent when referring the initial proceedings to the WRC.

·         The Complainant failed to carry out sufficient and reasonable enquiries prior to initiating the within proceedings so as to ensure she identified the correct name of the Employer/Respondent.

·         Any application for leave to institute fresh proceedings under Section 39(4) can only be granted in circumstances where the proposed respondent would not suffer an injustice if leave is granted. It was submitted that Mr. X and Mrs. X would suffer an injustice if such leave was granted in the instant case.

·         The main authority on misjoinder (i.e. naming an incorrect party) is the Supreme Court case, Sandy Lane Hotel Limited -v- Times Newspapers Limited [2014] 3 IR 369 and these submissions rely on Hardiman J’s strict analysis of the law in such circumstances.

The Respondent also relied upon the case Al Tambraga -v- Morrissey & Killarney Avenue Hotel UD36/2011 and Capital Food Emporium (Holdings) Limited -v- Walsh & Others (2016) IEHC 725 in support of its position on this matter.

The Complainant’s representative made the following submission on her behalf in relation to the issue of jurisdiction:

·         The Complainant was not aware of the correct name of the legal entity that employed her during her period of employment. The Complainant was provided with payslips and tax documentation (including P.60’s) during her period of employment which identified the name of her employer as the ABC.

·         The Complainant named Mrs. X as the owner of the business on the “Contact Details” section on the Complaint Referral Form which was submitted to the WRC in relation to the instant complaints.

·         The correct Respondents, namely, Mr. X and Mrs. X, have been fully aware of the instant proceedings from the outset and have been notified by the WRC of the scheduled hearings in relation to the complaints (namely the hearing on 5 June, 2018 – which was postponed on the Respondent’s request – and the hearing on 18 September, 2018). Therefore, Mr. X and Mrs. X have not been prejudiced or disadvantaged in any way in relation to the naming of the ABC as the Respondent/Employer in these proceedings.

·         On 25 January, 2018 the WRC corresponded with Mrs. X and received a response from her solicitor dated 13 February, 2018 advising that he was instructed to come on record for Mrs. X and that the Respondent would be willing to engage in the mediation process.

·         The WRC corresponded with the solicitors acting on behalf of Mr. X and Mrs. X regarding the scheduling of a hearing on 5 June, 2018 to which a postponement was sought and granted by the WRC. It was submitted that this type of engagement clearly demonstrates that Mr. X and Mrs. X knew exactly who the Complainant is and were fully aware that the instant complaints had been referred to the WRC.

The Complainant also made an application pursuant to Section 39(4) of the Organisation of Working Time Act 1997 at the oral hearing on 18 September, 2018 for leave to institute fresh proceedings against Mr. X and Mrs. X in relation to the matters which are subject of the instant complaints.

The Complainant submits that the misstatement of her employer when initiating the instant complaints arose as a result of inadvertence and it was contended that the owners of the business that employed her, namely Mr. X and Mrs. X, were fully aware of these proceedings from the outset. It was submitted therefore, that Mr. X and Mrs. X would not suffer any injustice or prejudice, if leave was granted to initiate proceeding against them in relation to the matters which are the subject of the instant complaints.

The Complainant relied upon the case of Capital Food Emporium (Holdings) Limited and John Walsh and the Employment Appeal Tribunal and Maureen Stewart [2016] IEHC 725 in support of its application pursuant to Section 39(4) of the Organisation of Working Time Act 1997.

CA-00016719-001, CA-00016719-002 and CA-00016719-003 - Preliminary Issue in relation to Jurisdiction

The first issue that I must decide is whether or not the Complainant has named the correct Employer/Respondent in the instant proceedings. It was not in dispute between the parties that the Complainant named the trading name of the restaurant where she was employed (namely the ABC) as the Employer/Respondent in the instant proceedings. However, it is clear from the evidence adduced that it was the owners of the restaurant, namely Mr. X and Mrs. X, who employed the Complainant.

In the circumstances, I am satisfied that the Complainant has incorrectly named the trading name of the business rather than the owners of same as the Employer/Respondent in these proceedings. I find that there was not an employer/employee relationship between the Complainant and the ABC. Accordingly, I find that I do not have any jurisdiction to enquire into the complaints under the abovementioned enactments against the ABC.

The Complainant’s representative made an application to amend the name of the Employer/Respondent in these proceedings to the actual owners of the business, namely Mr. X and Mrs. X. The Complainant’s representative sought to invoke the provisions of Section 39(4) of the Organisation of Working Time Act 1997 for the purposes of making the amendment to the name of the Respondent.

The question I must consider is whether or not it is permissible to substitute the names of the owners of the business, namely Mr. X and Mrs. X, as the Employer/Respondent in these proceedings or if it is necessary for the Complainant to invoke the provisions of Section 39(4) in order to pursue the owners of the business in relation to these complaints.

I will firstly consider whether or not it is permissible to allow the Complainant to simply substitute Mr. X and Mrs. X instead of the ABC as the Employer/Respondent in relation to these proceedings. The legal representative acting on behalf of Mr. X and Mrs. X has objected to any such amendment and submits that there is no legal mechanism or statutory power available to an Adjudication Officer to amend the title of proceedings in cases before them except for very limited and express circumstances and only where a decision has already issued.

In considering this matter, I note that the Courts have held in a number of cases, that statutory adjudicative bodies (such as the WRC) should not adopt a more stringent procedural approach than that adopted in ordinary litigation. In this regard, the Labour Court held in the case of Travelodge Management Limited -v- Sylwia Wach EDA1511 that: “The decision of the High Court in County Louth VEC v Equality Tribunal [2009] IEHC 370 is a seminal case on the question of when proceedings before a statutory tribunal can be amended. In that case McGovern J set out the following principle of law: - “If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.” The ratio of that case appears to be that the procedures adopted by statutory tribunals in relation to the amendment of non-statutory forms used in the initiation of claims should not be more stringent than those that apply in the ordinary courts. That is in line with the generally accepted principle that statutory tribunals, such as this Court, should operate with the minimum degree of procedural formality consistent with the requirements of natural justice”.

The Labour Court also held in the Travelodge case, in referring to Order 15, Rule 13 of the Rules of Superior Courts (S.I. No. 15 0f 1986) which makes provision for the amendment of proceedings initiated in the High Court in which parties are improperly named, that: “It could cogently be argued that in keeping with the decision in County Louth VEC v Equality Tribunal, and by application of the principle of equivalence, the Court should not adopt a more stringent stance in relation to the substitution of parties that is available in the High Court pursuant to that rule.”

Having regard to the foregoing authorities, I am satisfied that it is permissible for statutory Tribunals, such as the WRC, to allow a party to amend or substitute the name of an Employer/Respondent in proceedings in certain circumstances and that any such application must be considered on the merits of the individual case.

However, I am also cognisant that there is a further established key principle which has emanated from the Courts and which must be taken into consideration when deciding on the merits of any such application for an amendment to the name of an Employer/Respondent, namely whether or not the action in question against the party is statute barred. The Labour Court also addressed this issue in Travelodge case and held that: “ ….. it appears to the Court 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 applying this jurisprudence to the facts of the instant case, it is clear that the application to amend the name of the Employer/Respondent has not been made within the applicable time limits that govern the referral of complaints under the respective enactments in question (namely, Section 41(6) of the Workplace Relation Act, 2015 or Section 8(2) of the Unfair Dismissals Act 1997). The Complainant has claimed that the alleged unfair dismissal occurred on 3 September, 2017, and therefore, the alleged contraventions under the enactments under which the instant complaints have been referred could not have occurred any later than that date. I note that the application to amend the name of the employer/respondent was not made by the Complainant until the date of hearing, namely on 18 September, 2018, and therefore, was clearly made outside of the statutory time limits which govern the referral of complaints under these enactments. In the circumstances, I find that I do not have jurisdiction to allow the Complainant to amend or substitute the name of the Employer/Respondent in these proceedings from the ABC to Mr. X and Mrs. X.

Application pursuant to Section 39(4)

The next issue that I must consider turns to the Complainant’s application pursuant to Section 39(4) of the Organisation of Working Time Act 1997 for leave to institute fresh proceedings against Mr. X and Mrs. X in relation to the matters which are the subject of the instant complaints.

The Complainant submits that the identity of her employer has never been very clear during her period of employment, and therefore, through inadvertence, the name of her employer was identified as the trading name of the business (the ABC) rather than the owners of the business (Mr. X and Mrs) on the Complaint Referral Form which she submitted to the WRC in respect of this matter on 10 January, 2018.

Section 39(4) of the Organisation of Working Time Act, 1997 provides: -

(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 misstatement was due to inadvertence,

then the employee may apply to whichever relevant authority would hear such proceedings 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 such leave to the employee notwithstanding that the time specified under the said 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.

As is clear from a careful analysis of the wording of subsection (4), these provisions are intended to provide a mechanism by which fresh proceedings can be instituted against an employer which was incorrectly identified in an original complaint. This subsection does not deal with the amendment of either proceedings or a decision. Nor does it allow for the substitution of one Respondent for another. This subsection applies to situations in which a complaint is initiated against a wrong party as Respondent and the complainant wishes to initiate a fresh complaint concerning the same matter against the correct Respondent. What this subsection provides is that, in these circumstances, the complainant may apply to an Adjudication Officer for leave to re-initiate proceedings against the correct Respondent. That is a stand-alone process and if leave is granted, the Complainant can re-submit his or her complaint afresh.

It is clear that, in order to grant leave to an employee to invoke these provisions, an Adjudication Officer will have to be satisfied that the conditions specified in the subsection are met, namely: -

(a)    That a complaint was previously initiated in respect of the same matter against an incorrectly named or described party,

(b)    The proposed Respondent has been afforded an opportunity to be heard in relation to the application,

(c)     That the error in naming or describing the employer in the original case was due to inadvertence, and

(d)    That the proposed new Respondent would not suffer an injustice if leave is granted.

In applying the above tests to the instant case, I am satisfied that the conditions outlined at (a) and (b) above have been satisfied. In relation to (a), it is clear that the Complainant has already initiated proceedings in respect of these matters against an incorrect Respondent. In relation to (b), the legal representative acting on behalf of Mr. X and Mrs. X attended the hearing on 18 September, 2018 to advance arguments on behalf of their clients in relation to the jurisdictional issue, including the application under Section 39(4). Given that Mr. X and Mrs. X were not in attendance at the hearing on this date, I also scheduled a further hearing on 29 January, 2019 to afford them the opportunity to be heard in relation to the application. However, it was subsequently confirmed by the solicitor’s acting on behalf of Mr. X and Mrs. X that they would not be attending this hearing in circumstances where all necessary submissions had already been made on their behalf. In the circumstances, I decided to cancel the hearing as I was satisfied that the proposed Respondent had been afforded an opportunity to be heard in relation to the application.

In relation to the issue of “inadvertence” identified in (c) above, I note that the Employment Appeals Tribunal held in the case of Jeevanhan Al Tambraga -v- Orna Morrissey and Killarney Avenue Hotel[2013] 24 ELR 275 when commenting on the scope of Section 39(4) of the Act that: “The majority acknowledge that s.39 of the Organisation of Working Time Act 1997 gives certain scope to the Tribunal to allow for an application to be made to the Tribunal for amendment of the name of the employer. Such power is qualified quite significantly in s.39(4)(b) of such section noting that there must be inadvertence on the part of the relying party, to justify the making of an amendment. The word inadvertence is the qualifier in these circumstances, meaning an accident or oversight. I also note that the word “inadvertence” is defined in the Collins Concise English Dictionary as “a lack of attention; heedlessness; an oversight; slip”. I am satisfied that a considerable degree of confusion existed on the part of the Complainant in relation to the correct name of her employer during her period of employment. In this regard, I note that the Complainant’s payslips and P60’s indicated that the name of her employer as being the trading name of the business rather than the names of the owners of the business. Having regard to the evidence adduced, I find that the error which resulted in the misstatement of the employer’s name in the original application arose as a result of inadvertence on the part of the Complainant.

In considering the issue as to whether the proposed new Respondent would suffer an injustice, I am satisfied that Mr. X and Mrs. X were fully aware from the outset of the Complainant’s intention to initiate proceedings in relation to the matters which are the subject of the instant complaints. In this regard, I note that the solicitor who was formerly acting on behalf of Mr. X and Mrs. X acknowledged notification from the WRC of the original complaints by letter dated 13 February, 2018 and indicated that his clients would be prepared to engage in mediation in relation to the matter. It was not until some seven months later on 11 September, 2018 that the new solicitor who had been instructed to act on behalf of Mr. X and Mrs. X raised the issue in relation to jurisdiction. Having regard to the foregoing, I am satisfied that Mr. X and Mrs. X would not suffer any injustice if leave is granted to initiate proceedings against them in relation to these matters.

Accordingly, I am prepared to grant leave to the Complainant pursuant to Section 39(4) of the Organisation of Working Time Act 1997 for leave to initiate proceedings against Mr. X and Mrs. X in relation to the complaints under the Unfair Dismissals Acts, 1977—2015, the Minimum Notice and Terms of Employment Act, 1973 and the Organisation of Working Time Act 1997.

For the sake of clarity from a procedural perspective and having regard to the fact that the provisions of Section 39(4) do not provide for the substitution of one Respondent with another in a claim already in being, in circumstances where leave is granted pursuant to Section 39(4), the Complainant must then initiate his or her claim afresh against the correct party through the established procedures of the WRC by completing the normal initiating form.

I find that I do not have jurisdiction to inquire into the complaints under the Unfair Dismissals Acts, 1977—2015, the Minimum Notice and Terms of Employment Act, 1973 and/or the Organisation of Working Time Act 1997 as the incorrect employer had been named in the claims referred to the Workplace Relations Commission under these enactments.

I find that the misstatement of the Respondent’s name on the Complaint Referral Form presented to the WRC in respect of the initial proceedings was due to inadvertence. Accordingly, I grant leave to the Complainant pursuant to Section 39(4) of the Organisation of Working Time Act 1997 to initiate proceedings against Mr. X and Mrs. X in relation to the complaints under the Unfair Dismissals Acts, 1977—2015, the Minimum Notice and Terms of Employment Act, 1973 and the Organisation of Working Time Act 1997.

Unfair Dismissals Act 1997 – Organisation of Working Time Act 1997 – Minimum Notice and Terms of Employment Act 1973 – Incorrect Respondent/Employer – No Jurisdiction – Section 39(4) – Application to initiate fresh proceedings against correct Respondent/Employer – Leave Granted