Complainant

Respondent

Anonymised Parties

Senior Waiter

Restaurant

Representatives

Actons Solicitors

Peninsula

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00028111-001

30/04/2019

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

CA-00028111-002

30/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00028111-004

30/04/2019

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

CA-00028111-006

30/04/2019

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

CA-00028111-007

30/04/2019

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

CA-00028111-009

30/04/2019

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

CA-00028111-010

30/04/2019

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

CA-00028111-011

30/04/2019

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

CA-00028111-012

30/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00028590-001

17/05/2019

The Complainant worked as a senior waiter in a [named restaurant].

Two days prior to the adjudication hearing, the Respondent who is named on the complaint form wrote to the WRC stating that she was an employee of the [named restaurant] and that she was not the Complainant’s employer.

At the hearing, the named Respondent was accompanied by another individual who identified herself as the Complainant’s employer and, therefore, the correct Respondent (the second Respondent). The second Respondent was not sufficiently proficient in English to follow proceedings and she relied on the named Respondent to interpret for her.

The second Respondent submitted a copy of a CRO Certificate of Incorporation and a CRO Certificate of Registration of a business name in support of her assertion.

The Adjudicator asked the second Respondent, through the named Respondent interpreting, if she consented to the replacement of the second Respondent for the named Respondent in the herein case and if she was willing to attend a rescheduled hearing to investigate the complaint. The second Respondent objected to the amendment of the Respondent’s name in the herein case and indicated that she was not willing to return for another adjudication hearing.

Following initial consideration of the preliminary issue, the Adjudicator directed each party to make submissions on the matter to be delivered by the 19th September 2019.

A submission was received from the Complainant. No submission was received from the Respondent.

The Respondent did not make a submission after the adjudication hearing.

At the hearing, the named Respondent submitted that she was not the correct Respondent.

The named Respondent was accompanied at the hearing by an individual who submitted that she was the correct Respondent. The second Respondent submitted CRO documentation in support of her position.

The second Respondent indicated that she was not agreeable to be named as the Respondent in the proceedings.

The following is a summary of the submission which was made on behalf of the Complainant after the adjudication hearing –

The named Respondent submitted that she is not the Complainant’s former employer but rather the Manager of the [named restaurant] where the Complainant was employed. The named Respondent submitted the name of the limited company which she asserted was the correct Respondent.

On Tuesday the 3rd September an email was received from the WRC attaching a copy letter from the named Respondent outlining that she is an employee in the [named restaurant] where the Complainant was employed.

The named Respondent informed the Adjudicator that she was there as a matter of courtesy. She submitted she is accordingly incorrectly named as the Employer/Respondent.

The named Respondent produced a Certificate of Registration of a Business Name in the name of a limited company dated 18th September 2018. In addition she produced a Certificate of Incorporation and Constitution of the limited company. The named Respondent informed the Adjudicator that the lady who accompanied her was the representative of the limited company.

The Adjudicator asked the representative of the limited company, through the named Respondent interpreting, if she consented to the amendment of the title of the case with the substitution of the limited company for the named Respondent and to return another day to address the matter. The representative of the limited company stated she did not wish to come back.

It is the Complainant's position that he was interviewed and employed by the named Respondent. The Complainant commenced work in the [named restaurant] in January 2016. This remains the Complainant's position. He had no knowledge whatever of the entity which has identified itself as his employer and had absolutely no contractual relationship whatever with that entity.

Review of the Certificate of Incorporation of the entity which identified itself as the Complainant’s employer (as acknowledged by the named Respondent) confirms the date of incorporation as 10th May 2018, some 2 years and almost 4 months after the Complainant started work in the [named restaurant].

There was reference by the named Respondent to a former employer. Again, the Complainant had absolutely no knowledge of the existence of that employer.

Nowhere does the named Respondent in her original response to the complaint to the WRC dated 29th May 2019 refer to the former employer or the limited company whose representative was present at the adjudication hearing. Nor does the named Respondent in any way suggest the Complainant was employed by anyone other than her and indeed makes many references therein to her personal involvement, for example:

would like to respond to your correspondence" ..."l am aware that an employee is entitled..."

"l will admit some weeks he did work 40/44 hours"...."To this day I have never dismissed the Complainant"

"I did not dismiss the Complainant and in fact he left me in a very stressed situation as I had to ask other staff..."

"l have acted in a fair and just fashion as I would like to think I am a fair person to work for

It is not denied that the Complainant commenced work in the [named restaurant] in January 2016. Accordingly it is impossible for either the former employer or the limited company to have employed him, as neither such company existed at that time.

Further the Complainant’s revenue record is similarly manifestly incorrect and at very least begs the question as to who employed the complainant from January 2016 to January 2017, again noting, this cannot be an error as [the former employer] was only incorporated in October 2016.

The Complainant never received any contract of employment and was never provided with the most basic information as required by statute, in particular in the instant case, Name of Employer, following commencement of employment or at any time since. Further he was never consulted about or in any way notified of any change of employer at any time during his 3 years of employment. Additionally, he was never once provided with a payslip and is a complete stranger to the copy payslip accompanying the named Respondent’s response dated 29th May 2019.

As previously outlined the Complainant received no payment advices or P60 during the course of his employment.

In summary, the Complainant does not accept the contention that he was employed by the limited company and/or previously by the previous employer but rather at all times was employed by the named Respondent who represented and maintained herself as his employer.

On behalf of the Complainant it is submitted that the named Respondent is and was his employer.

Before deciding on the substantive issue, I must first decide whether or not the Complainant has named the correct Respondent for the purpose of the herein complaints.

I have evaluated all the evidence adduced in this case. I am satisfied that no employment relationship existed between the Complainant and the named Respondent. I find, therefore, that the Complainant has named the incorrect Respondent as employer in these proceedings.

Accordingly, I find that I do not have jurisdiction to hear this complaint.

Having carefully considered all evidence available to me, I find that I do not have jurisdiction to hear this complaint.

Wrong respondent, jurisdiction