Complainant

Respondent

Anonymised Parties

Entertainment reporter

Media Company

Representatives

Self- represented

Did not attend

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-00028977-001

11/06/2019

The complainant worked with the respondent as a website journalist from 24 July 2018 – 2 May 2019.

Her monthly salary was €1750 gross, net €1685. She worked 40 hours a week.

Her complaint is that her employer contravened section 5 of the Payment of Wages Act, 1991 on 31 May 2019.

She submitted her complaint to the WRC on 11 June 2019.

Preliminary point

Incorrectly named respondent.

The complainant accepts that she has incorrectly named the respondent. She requested that the name be corrected.

Substantive complaint.

The complainant states that the respondent wrongfully deducted wages to the amount of €161.54 on 31 May 2015. She further states that the respondent failed to pay her the 18.5 days contracted annual leave due to her up to May 2019, which amounts to €1494 and was withheld from her on 31 May 2019.

The respondent though notified did not attend.

The respondent emailed the WRC, at 10pm on the night before the hearing requesting that the hearing be dismissed as all monies would be paid to the complainant by her accountant.

The respondent did not appear to request a postponement.

Preliminary Point: Incorrectly named respondent.

Section 39(2) of the Organisation of Working Time Act 1977 provides that –

“ A decision (by whatever name called) of a relevant authority under this Act or an enactment referred to in the Table to this subsection 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”.

Section 39 (4)(b) proceeds to state that where

“ the said statement 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 leave to the employee notwithstanding that the time specified under the enactment or statutory instrument within which such proceedings may be instituted has expire”

The matter of changing the respondent’s name was considered in ADJ 12478. The adjudicator stated “In deciding whether or not to grant leave to amend the name of the Respondent, 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 in that case 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 …”.

In the instant case, the complainant’s pay slips submitted in evidence to the WRC clearly show the name of the employer. The name used by the complainant is entirely different from the respondent’s correct name and shares no common element or single name. Her complaint was lodged within 2 weeks of the stated contravention.

Accordingly, I find that the Complainant has named the incorrect respondent as employer in these proceedings and that I do not have jurisdiction to hear this complaint.

I find that the Complainant has named the incorrect Respondent and that I do not have jurisdiction to hear this complaint.

Incorrect respondent.