DWT1922

Ms. Aoife Sheehan, B.L., instructed by Hanley & Lynch Solicitors, on behalf of the Respondent, raised a preliminary issue that the Complainant was never employed by the Respondent. She contended that the correct name of the Complainant’s employer was Auto Depot Limited. Whilst she confirmed that Mr. Finbarr Sullivan was a Director of both Auto Depot Limited and Auto Depot Tyres Limited the two were separate legal entities, she stated that the latter had never traded and had never had any employees. Ms. Sheehan said that this fact was made known to the WRC by letter dated 29^thMarch 2018 and was conceded by the Complainant as his representative wrote to the WRC on 1^stJune 2018 appearing to concede that the named Respondent had been incorrectly joined to the proceedings and sought to add Auto Depot Limited as a second Respondent to the complaint.

Mr. Marius Marosan on behalf of the Complainant argued that a lack of a contract of employment, payslips etc to assist in identifying the correct name of the Respondent led to the difficulties identified by Ms Sheehan. When searching the Companies Registration Office , Mr. Marosan said that he could find only one company registered at the Complainant’s workplace address, that of Auto Depot Tyres Limited.

Summary of Mr Finbarr Sullivan’s Evidence on the Preliminary Issue

Evidence was given by Mr Finbarr Sullivan on the preliminary issue. He told the Court that he was a director of Auto Depot Tyres Limited, a company which was set up to diversify from Auto Depot Limited as he was splitting from his partner in the latter company. However, he said that Auto Depot Tyres Limited was a dormant company, registered in March 2016, it did not trade, and had no employees at any time. He said that was he also a Director of Auto Depot Limited (he has since left that company, and although still a Director, he has not worked in the company since October 2018).

Mr. Sullivan told the Court that the Complainant had been employed by his father who was the sole shareholder in Kingpin Tyres Limited, which was based at the same location as a branch of Auto Depot Limited in Straffan, Co Kildare, as a separate unit. Mr. Sullivan described himself as a “silent” Director of Kingpin Tyres Limited, but he said he had no practical involvement with that company otherwise. He said that the Complainant was employed by Kingpin Tyres Limited from 2007 until he joined Auto Depot Limited on 2^ndNovember 2015, as Kingpin Tyres Limited was not doing well at that time and the Complainant was seeking employment.

Mr. Sullivan accepted that the Complainant was employed by Auto Depot Limited from 2^ndNovember 2015 until early February 2017 as a tyre fitter, firstly at the garage in Straffan and latterly at the garage in Tallaght. Mr. Sullivan said that he was the Manager at the Tallaght garage, when the manager at the Stafffan garage asked him to take the Complainant on as he was seeking a move from Straffan and he took him on in Tallaght around November/December 2016.

The witness was asked about a letter that the Complainant received from the Department of Social Protection which stated that there were no social insurance contributions records on his behalf in the Department. Mr. Sullivan said that all PAYE/PRSI deductions/payments were made in respect of the Complainant during that time and forwarded to the appropriate authorities. The Complainant was furnished with P60’s for 2015, 2016 and 2017. Mr. Sullivan said that each of these stated that this employer was Auto Depot Limited. He said that the Complainant was also furnished with a P45 on the cessation of his employment, though he accepted that the P45 omitted to include the name of the employer. He said the P45 did include the employer’s tax registration number. He said that he had asked his accountant to check the matter, and on checking with the Revenue Commissioners he was satisfied that all was in order and printed out the appropriate information from ROS (copy supplied to the Court).

The witness was asked about the notification from the WRC regarding the Complainant’s claim under the Acts, dated 18^thJuly 2017. He said that he did not specifically recall receiving it but knows that he passed it on to his Solicitors. He said that he did not know why he didn’t take issue with the name of the employer on the WRC documentation at the time of receipt but was satisfied that it was in the hands of his Solicitors at that point. He said that he received further communication from the WRC in March 2018 and that letter was also forwarded to his Solicitors who responded at that point to inform the WRC that the Complainant had never been employed by Auto Depot Tyres Limited. Mr. Sullivan said that he had had a WRC inspection around that time and was actively co-operating with the inspector.

Mr. Sullivan accepted that he did not furnish the Complainant with a contract of employment or any written statement setting out his terms and conditions of employment. When questioned about payslips he said that all employees, including the Complainant, received payslips on a regular basis which contained the name of the employer, Auto Depot Limited, (copies supplied to the Court).

Summary of the Complainant’s Evidence on the Preliminary Issue

The Complainant told the Court that he was hired by Mr. Sullivan Junior to work for Mr. Sullivan Senior in 2007. He said that he worked for both Mr Sullivan Snr and Jnr in two different garages in the same courtyard in Straffan, until he transferred to Tallaght. However, he said that he was never informed that he was transferring employment from one company to another. He said that there was no change in his terms and conditions of employment, his rate of pay remained the same, however, he said that he never received any payslips and was paid in cash. He said that he did receive P60’s but did not read them. The Complainant said that he was always seeking to be regularised in his employment but that never happened.


Court’s Findings on the Preliminary Issue

With regard to the issue of the correct Respondent in this case, Ms. Sheehan submitted to the Court that the only mechanism available to the Complainant to substitute a correct respondent for an incorrect respondent are the provisions of Section 39 of the Organisation of Working Time Act, 1997, and in particular, Subsection (4) of that Section. Ms. Sheehan submitted that no application had been made under Section 39 and that it was therefore not open to the Court to substitute another party for the named respondent.

Section 39 of the Organisation of Working Time Act, 1997 provides, in relevant part, as follows:

• “39.—(1)In this section “ relevant authority” means a rights commissioner, the Employment Appeals Tribunal or the Labour Court.
  
  (2) A decision (by whatever name called) of a relevant authority under this Act or an enactment [or statutory instrument] 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.
  
  Table….
  
  3) The power of a relevant authority under subsection (2) shall not be exercised if it would result in a person who was not given an opportunity to be heard in the proceedings on foot of which the decision concerned was given becoming the subject of any requirement or direction contained in the decision.
  
  (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.”

The Court must therefore respectfully disagree with Ms. Sheehan’s characterisation of the Section 39(4) process. It is not a process for amending proceedings or substituting parties. It is a process whereby a tribunal at first instance, being satisfied that certain conditions have been met, can grant a Complainant leave to initiate a fresh complaint against the correct respondent without falling foul of applicable limitation periods. In any event, no application under Section 39 was made by the Complainant at first instance.

There being no specific statutory mechanism open to this Court in dealing with an appeal to substitute a correct respondent for an incorrect one, the Court must therefore consider whether or not it is legally permissible for the Court to accede to the Complainant’s application to substitute in the correct respondent in this case.

This Court in a Decision under the Employment Equality Acts dated 30^thJune 2015,Travelodge Management Limited -v- Sylwia Wach EDA1511, reviewed the main relevant authorities on this subject. The Court noted the decision of the High Court inCounty Louth VEC v Equality Tribunal[2009] IEHC 370 in which 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 Court also reviewed the case ofSandy Lane Hotel Limited v Times Newspapers Limited [2011] 2 I.L.R.M 139, a case in which Kearns P. in the Supreme Court would not allow the amendment of a name fromSandy Lane Hotel Ltd(a company in St. Lucia) toSandy Lane Hotel Co Ltd(a company in Barbados) and relied on the“long established principle that a court will not add a defendant…..if the action against that party is quite clearly statute barred”.

Noting the divergent decisions on the subject, and with particular reliance on theSandy Lanecase, the Court concluded in theTravelodgecase that it could not add or substitute a party to proceedings where the limitation period in the action has expired as against that party.

Bearing in mind the differing authorities, the Court notes the more recent High Court case inCapital Food Emporium (Holdings) Limited -v- Walsh & Others (2016) IEHC 725.This case was an unfair dismissal claim referred by a former employee of Capital Food Emporium to the Rights Commissioner. The representative for the employer acknowledged receipt of the complaint under the Unfair Dismissals Act, 1977 but failed to attend the Rights Commissioner hearing. A recommendation was issued, and the employer appealed it to the EAT and then withdrew the appeal before the hearing. The former employee applied to the EAT seeking implementation of the Rights Commissioner’s recommendation and at that stage the representative of Capital Food Emporium Ltd notified that the recommendation was made against the wrong employer. After an application under Section 39 of the Organisation of Working Time Act 1997 the Rights Commissioner issued a correction order amending the name to the correct employer’s name. The former employee then applied to the EAT for implementation of the recommendation which was granted. Capital Food Emporium Ltd., then applied for a judicial review on a number of grounds including that the Rights Commissioner and the EAT acted ultra vires.

InCapital Food Emporium, Barrett J distinguished, in a number of significant respects, theSandy Lanecase, a case in which this Court inTravelodgeplaced considerable significance. Barrett J. stated:

• “it appears to this Court that the within case is distinguishable in a number of respects from Sandy Lane Hotel, viz: (A) the appellants in Sandy Lane Hotel contended that Sandy Lane Hotel Limited was not the right party to the proceedings whereas in the within proceedings Capital Food Emporium Limited repeatedly acknowledged that it was the correct party to the within proceedings, until it suited it to seek, entirely unconvincingly, to deny this, (B) the Supreme Court, in Sandy Lane Hotel, appears to have placed no little emphasis on the fact that the basis for the confusion arising derived from “ a complicated series of arrangements made for tax planning purposes, in which they [the respondent and those behind it] obviously had the benefit of the best legal and taxation advice ” whereas in the within proceedings Ms Stewart is a so-called ‘ordinary’ person who was acting with the benefit of trade union assistance: she is not a sophisticated commercial group acting with the benefit of ‘blue chip’ legal and tax advice, and (C) the Supreme Court, in Sandy Lane Hotel, also seems to have had regard to the fact that the company secretary appears to have been, perhaps, somewhat sanguine in terms of seeking to join the right party whereas Ms Stewart has always sought to bring her claim against the correct party and, again, was repeatedly acknowledged and accepted by that party as having pursued the correct party until it elected, unconvincingly, to deny this.”

• a.Mr. Sullivan accepts that as a company director of Auto Depot Tyres Ltd he received notification, by letter dated 19^thJuly 2017 from the Workplace Relations Commission (WRC), of the Complainant’s complaints under the various statutes. He told the Court that Auto Depot Tyres Ltd had been incorporated by him for a certain purpose, which did not ultimately transpire, and the company was effectively dormant and never traded nor employed anyone.
  
  b.The notification from the WRC was received by him at the registered address for Auto Depot Tyres Ltd at Unit 5 Cookstown Industrial Estate in Tallaght. This was also the trading address of the Tallaght branch of Auto Depot Ltd, which was also Mr. Sullivan’s business and of which he was a company director. The Tallaght branch of Auto Depot Ltd was the business where the Complainant physically worked at the time of the termination of his employment on 10^thFebruary 2017 and which was his employer at that time. The Court notes that unlikeSandy Lane, where the two different legal entities were each in a different jurisdiction (one in St. Lucia, the other in Barbados), the legal entities here were both Mr. Sullivan’s, both were incorporated in the same jurisdiction and indeed both shared an address in common with one entity trading from it and the other registered at it.
  

  c.From 19^thJuly 2017, Mr. Sullivan was on notice of employment complaints from one of his former employees, albeit that he had employed the employee through a different legal entity, Auto Depot Ltd. It is not disputed that he knew precisely who the complaints were being made by and what those complaints related to and that he had previously employed that person at one of his companies.
  
  d.Mr. Sullivan told the Court in evidence that when he received the complaints, he“didn’t realise that he wasn’t the employer”. In other words, he believed himself to be the employer. He told the Court that he passed the documentation on to his solicitors.

  e.The parties were notified in January 2018 of a hearing before an Adjudication Officer on 12^thFebruary 2018. Up to that point, no issue regarding the correct respondent was notified by Mr. Sullivan to either the Complainant or the WRC. That hearing did not proceed, and a new hearing date of 5^thApril 2018 was subsequently arranged.

  f.It was not until 29^thMarch 2018, eight months after he was notified of the complaints and seven days before the rescheduled hearing, that an email was sent to the WRC by Mr. Sullivan’s solicitors alleging that an incorrect respondent had been impleaded.

  g.Mr. Sullivan, though his solicitor, raised the incorrect respondent issue in March 2018 at a point in time over twelve months after the termination of the Complainant’s employment in February 2017 and some eight months after being notified of the complaints.

  h.Mr. Sullivan, who in his capacity as owner and director of Auto Depot Ltd was the Complainant’s employer, appeared at the Adjudication Officer hearing on 5^thApril 2018 represented by his solicitor and Counsel. It was not accepted by Mr. Sullivan that he was the correct respondent and it was argued that Auto Depot Tyres Ltd was a stranger to any employment proceedings instituted by the Complainant. Mr. Sullivan, as the Complainant’s former employer, was in a position to produce P60 documents to the Court from Auto Depot Ltd which showed that the Complainant had been employed by that entity.

• • a.The Complainant was not represented by solicitor or counsel in these matters. Nor was he represented by a trade union official. The Court understands that Mr. Marosan was assisting the Complainant in a personal capacity. PerSandy Lane, the Complainant is an“‘ordinary’ person”and“is not a sophisticated commercial group acting with the benefit of ‘blue chip’ legal and tax advice”.
  • b.In evidence before the Court, Mr. Sullivan confirmed that, contrary to statutory requirements, the Complainant was never provided with a written statement of his terms and conditions of employment. Such a statement, if it had been provided, would have provided the Complainant with details of the correct identity of his employer, including the address. Mr. Sullivan told the Court that from 2007 until November 2015, the Complainant was employed by an entity called Kingpin Tyres Ltd, the principal of which was Mr. Sullivan’s father, but of which Mr. Sullivan Jnr. was a company director. He told the Court that he took the Complainant in to the employment of his company, Auto Depot Ltd, due to the trading difficulties being experienced by his father’s company. There was no evidence before the Court that the Complainant received any documentation relating to the transfer of his employment from Mr. Sullivan Snr. to Mr. Sullivan Jnr.
  • 
    c.Mr. Sullivan submitted that from November 2015 onwards the Complainant was provided with weekly payslips. He stated that the payslips identified the legal entity which employed the Complainant, Auto Depot Ltd. Following a break in the proceedings at the hearing before the Court, copies of such payslips were obtained from a firm of accountants who deal with Mr. Sullivan’s payroll and were produced to the Court. Mr. Sullivan added that the Complainant had received P60’s which identified his employer. In evidence before the Court, the Complainant strongly refuted that he ever received any payslips. The Court was told that these documents were being sighted for the first time at the Court hearing.

• a.With the assistance of Mr. Marosan, the Complainant made efforts to identify the entity whom he believed to be his employer.
  
  b.A Companies Registration Office Search was undertaken. The “Auto Depot” entity which the Complainant identified as his employer was the one which was registered at the address where he had worked, the Tallaght address, at the time of the termination of his employment.
  

  c.The Complainant was doing the best he could with the information and resources that he had at his disposal. Regard must also be had to the fact that he appeared to be at a significant disadvantage concerning the absence of the company documentation which should have been provided to him for referral in order to avoid exactly the circumstances which the Complainant found himself in.

• This present case indicates a degree of formality, and even rigidity, which is somewhat surprising. It is a rather ironic turn in history that this Tribunal which was intended to save people from the ordinary courts would themselves fall into rigidity comparable to that of the common law before it was modified by equity.

• “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

• 6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

The Claim

As it is common case that the Complainant did not receive a written statement of his terms of employment, the Court finds that the Complainant’s claim is well-founded.

Determination

For all the reasons set out above under the unfair dismissals case, the Decision of the Adjudication Officer is varied. The Court hereby amends the Respondent’s name to reflect its correct legal title, that of ‘Auto Depot Ltd’.

The Court determines that the Respondent (Auto Depot Limited) has breached the Act at Section 3 and orders it to pay to the Complainant the sum of €1,560.00 (four weeks’ pay) in compensation, being the amount, the Court considers to be just and equitable in all of the circumstances.

The Decision of the Adjudication Officer is varied accordingly.

The Court so Determines.




CLAIM UNDER THE ORGANISATION OF WORKING TIME ACT, 1997-2015


This is an appeal by Mr. Vasile Matieu against a decision of an Adjudication Officer ADJ-00009617 CA-00013611-004, dated 13^thDecember 2018 under the Organisation of Working Time Act (‘the Acts’).

The Adjudication Officer held that the Complainant had wrongly named the employer, therefore he held that he lacked jurisdiction to investigate the complaint.

For ease of reference the parties are given the same designation as they had at first instance. Hence Mr. Vasile Matieu will be referred to as “the Complainant” and Auto Depot Tyres Limited will be referred to as “the Respondent”.

The Complainant submitted his claim under the Acts to the Workplace Relations Commission on 18^thJuly 2017.

The period encompassed by the claim is the period 19^thJanuary 2017 to 18^thJuly 2017.

The Complainant alleges that he was regularly required to work 52 hours per week, in excess of the statutory maximum working week, therefore he alleged that the Respondent was in breach of Section 15 of the Acts.

This allegation was disputed by the Respondent, who maintained that the Complainant consistently worked 39 hours per week.

Summary of the Complainant’s Evidence on the Organisation of Working Time Claim

The Complainant told the Court that he regularly worked six days per week, from 9am to 6pm Monday to Friday and 9am to 4pm on Saturdays and sometimes in excess of those hours for which he was not paid and sometimes worked on Sundays. He said that he opened up the garage before starting times and held the keys. He said that he would start work between 8am and 9am on occasions. He said that he could not recount the hours he worked in his last week of employment. He said that his amount of pay varied and that he would receive some in cash and the rest in his bank account. He said he was paid €11.00 per hour.

Summary of Mr. Finbarr Sullivan’sEvidence on the Organisation of Working Time Claim

Mr. Sullivan told the Court that the normal opening hours of the garage are 9am to 6pm, Monday to Friday and 9am to 4pm on Saturdays. He said that the Complainant was rostered to work Mondays, Tuesdays and Fridays from 9am to 6pm, he worked Saturdays from 9am to 4pm and worked a half day on either Wednesdays or Thursdays. Therefore, Mr Sullivan said that he was rostered to work 39 hours per week less breaks however, he was paid for 39 hours per week at a rate of €10.00 per hour. Mr Sullivan said that since the Complainant was employed by Auto Depot Limited from 2^ndNovember 2015 until his resignation in February 2017 he was never paid in cash, his wages were always paid into his bank account on a weekly basis and payslips were handed to him every week or so (copies supplied to the Court). The witness said that the Complainant was never given keys to the premises. He said that the garage religiously opened and closed at the same time every day, every week, no overtime was ever worked, and it was never open on a Sunday.

The witness told the Court that all employees, including the Complainant’s hours were written in a Daybook.

The Law Applicable

Section 15 of the Act provides:

• “Weekly Working Hours

  (1) An employer must not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed—

  • (a) 4 months, or

    (b) 6 months—

    • (i) in the case of an employee employed in an activity referred to in paragraph [3, points (a) to (e)] of Article 17 of the Council Directive, or

      (ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection, or

    (c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.
  (2) Subsection (1) shall have effect subject to the Fifth Schedule (which contains transitional provisions in respect of the period of 24 months beginning on the commencement of that Schedule).

  (3) The days or months comprising a reference period shall, subject to subsection (4), be consecutive days or months.

  (4) A reference period shall not include—

  • (a) any period of annual leave granted to the employee concerned in accordance with this Act (save so much of it as exceeds the minimum period of annual leave required by this Act to be granted to the employee),

    (aa) any period during which the employee was absent from work while on parental leave, force majeure leave or carer's leave within the meaning of the Carer's Leave Act 2001,

    (b) any absences from work by the employee concerned authorised under the Maternity Protection Acts 1994 and 2004, or the Adoptive Leave Acts 1995 and 2005, or

    (c) any sick leave taken by the employee concerned.

  (5) Where an employee is employed in an activity (including an activity referred to in subsection (1)(b)(i))—
  • (a) the weekly working hours of which vary on a seasonal basis, or

    (b) as respects which it would not be practicable for the employer concerned to comply with subsection (1) (if a reference period not exceeding 4 or 6 months, as the case may be, were to apply in relation to the employee) because of considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature,

  then a collective agreement that for the time being has effect in relation to the employee and which stands approved of by the Labour Court under section 24 may specify, for the purposes of subsection (1)(c), a length of time in relation to the employee of more than 4 or 6 months, as the case may be (but not more than 12 months).”

Signed on behalf of the Labour Court



Caroline Jenkinson
MK______________________
2 October 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.