Complainant

Respondent

Anonymised Parties

Fitter

Construction Company

Representatives

Ormonde  Solicitors

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00012966-001

04/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00012966-002

04/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00012966-003

04/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00012966-004

04/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00012966-005

04/08/2017

A hearing was convened to hear the complaints submitted by the complainant against a named respondent employer. At the outset of the hearing, the representative of the respondent stated that as the respondent cited was not the employer of the complainant, the complaints should be dismissed. The complainant’s solicitor made application at the hearing to amend the name of the respondent.

Section 39 of the Organisation of Working Time Act (1997) contains the relevant provisions to deal with difficulties arising from a proposed respondent being improperly named in a decision (Section 39 (2)) or in an initiating form (Section 39 (4)).   In this instant case, as a decision has not issued, Section 39 (2) does not apply.

Section 39 (4) 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 the 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 whatever 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 the opinion that to do so would result in an injustice being done to the proposed respondent”.

This subsection does not deal with the amendment of proceedings. The provision provides a mechanism by which fresh proceedings can be initiated against an employer which was incorrectly identified. The power to grant leave pursuant to subsection (4) is confined to complaints under the list of enactments in the Table set out in the section. The table does not include the Safety, Health and Welfare at Work Act, the Industrial Relations Act, The protected Disclosures Act or the Employment Equality Acts.

In this instant case, I find that the wrong respondent was impleaded and the application at the hearing to amend the claim by substituting another legal entity goes beyond what was intended by Section 39 (4) of the Organisation of Working Time Act 1994. The complaints are misconceived and I find the complaints to be not well founded.