Complainant

Respondent

Anonymised Parties

A Sales Rep

A Respondent

Representatives

Dave Curran, SIPTU

Reg Jackson B.L. instructed by Adrian HegartyMalone Hegarty Solicitors

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-00016457-001

20/12/2017

The Complainant referred a complaint to the Workplace Relations Commission on 20th of December 2017 alleging that the named Respondent had breached the Payment of Wages Act in relation to a payment of €4,274.00 in respect of wages which were due to be paid to the complainant on the 2^nd of June 2017.

I proceeded to a hearing of this matter on the 11^th of April 2019.  Final submissions were provided on 9^th of May 2019.

The complainant submits that

the respondent deducted monies from wages properly payable to the complainant on a number of occasions from 2^nd of June 2017 to 3^rd of November 2017, these deductions are ongoing on a monthly basis,

 The Complainant did not give consent in writing or otherwise for all or any of the deductions thus the monies were unlawfully deducted by the Respondent.

The respondent submits that

It has incorrectly been named as respondent to these proceedings,

The complainant is not an employee of the named respondent ‘M’ limited but he is employed by ‘K’ Limited,

The claim form cites 2^nd of June 2017 as the date of the unlawful deduction and so the claim is out of time as the complaint was submitted on 20^th of December 2017, more than six months after the date of the alleged deduction,

The matters complained of are also being pursued in High Court proceedings issued by the complainant against his employer ‘K’ Limited.

Issue of Correct Respondent

The respondent was represented at the hearing and submitted that the named respondent ‘M’ Limited is not the correct respondent to these claims as it is not the complainant’s employer.  The named respondent submitted that the complainant was employed by ‘K’ Limited and that his contract of employment specified that his employer was ‘K’ Limited.   The named respondent also stated that the complainant payslips and P60 all named his employer as ‘K’ Limited.   The respondent also advised the hearing that the complainant has instituted High Court proceedings in a related matter seeking to wind up a related company and, in those proceedings, he identifies himself as an employee of ‘K’ limited.  The respondent stated that he complainant swore an affidavit on 1^st of February 2018 identifying his employer as ‘K’ Limited.

The complainant at the hearing referred to the power to change the name of the respondent as provided for in Section 39 of the Organisation of Working Time Act 1977 and requested additional time to provide submissions on this matter and on two other preliminary issues raised by the respondent.    This request was granted, and the complainant provided his submissions in this regard on the 25^th of April 2019. The respondents replying submission was provided on the 9th of May 2019.  Both sides provided submissions on the preliminary issues raised at the hearing. 

Request to change name of respondent under Section 39 of the Organisation of Working Time Act 1977.

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

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 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.

 (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 statement was due to inadvertence, then the employee may apply to whichever relevant authority would hear such proceeding 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 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 complainant submitted a request under s39 of the Organisation of Working Time Act that the employer’s name be changed from “M” Limited” to “K” Limited.

The complainant in his submission requested that the respondent name in respect of this claim be changed from ‘M’ Limited to ‘K’ Limited as the complainant Mr. F had understood that he worked for ‘M’ Limited.   

The complainant Mr. F who was represented by his union official submits that he had understood that he worked for ‘M’ Limited as he had received documentation on headed paper which shows that ‘M’ Limited have engaged in correspondence with Mr. F on work matters.

Mr F submits that he was also given an email address incorporating the name of company ‘M’ Limited.   The complainant’s submission goes on to state that the owner of ‘M’ Limited is also a director of ‘K’ limited and a number of other companies.

The complainant in his submission requests that the name of the respondent be amended under s39(2) as he submits that a misstatement was made in error.

It is further submitted by the complainant that as per s39(3) the employer has been given the opportunity to be heard, as they have corresponded with the WRC and sent representatives to the hearing.    It is submitted that the respondent representatives corresponded with the WRC on behalf of ‘K’ Limited and therefore, as per S39(4)(b) there is no injustice done to the respondent.

The respondent in its initial submissions to the hearing stated that the complainant was out of time as the claim form cites 2nd of June 2017 as the date of the alleged deduction and so is out of time as the complaint was not submitted until 20th of December 2017, more than six months after the date of the alleged deduction.    The complainant in response to this point refer to s39(4)(b) and submits that the “misstatement was due to inadvertence” and therefore asks that the case be heard “notwithstanding that the time specified under the said enactment…. has expired”.

The respondent in its replying submissions made the following points

The respondent opposes any application by the complainant to seek to change the name of the respondent, the respondent asserts that the claim is otherwise statute barred and should be dismissed.   The respondent refers to the fact that the complaint was submitted on the 20th of December 2017 and submits that it is clear from the complaint form that the date on which the complainant alleges he should have received the payment being claimed was the 2nd of June 2017.

 The respondent refers to the fact that the WRC wrote to the complainant on the 16th of January 2018 alerting them to the time limits issue and the fact that the complaint submitted did not appear to fall within the statutory timelines, the WRC requested a submission in this regard within 14 days.  Despite this request no submissions were furnished by the complainant and no response of any sort issued until the 30th of August 2018, some 7 and 1/2 months after the opportunity was given to the complainant to file submissions in 14 days.  This response stated that the complainant’s position was that the complaint does fall within the statutory timelines and that this would be addressed at an adjudication hearing when one was scheduled.   A reply issued from the WRC on 3^rd of September 2018 referring to the January letter from the WRC to the complainant and the fact that no replying submission had been received.  In correspondence dated 15th of November 2018 the complainant’s representative drew attention to section 41(8) of the WRC Act 2015 stating that an extension to the six months’ time limits was possible where reasonable cause was shown for the delay.   The respondent submits that the complainant had had failed to identify any reasonable cause for the submission of his claim outside of the six months and only in submissions dated 18^th of February 2019 suggested that the claim related to ongoing deductions during the period from June 2017 to November 2017.

The complainant has now filed submission on the 25th of April 2019 requesting that the respondents name be name be changed from ‘M’ Ltd to ‘K’ Ltd, this request is being made 16 months after submission of the initial claim and almost two years after the date of the alleged unlawful deduction.

The Respondent opposes the application to change the name of the respondent for the following reasons

Section 39(4) of the Organisation of working time act 1997 provides for amendments to the name of the employer.   The complainant must firstly establish that the miss statement of the respondent’s name was due to ‘inadvertence’ moreover it is clear that leave should not be granted “if an injustice would be done to the fullest respondent “

The respondent submits that any suggestion on the part of the complainant that there was any confusion or that he was otherwise unaware of who his employer was at the time of the submission of this complaint is disproven for the following reasons

The complainant issued High Court proceedings on the 1^st of February 2018 identifying that his employer was ‘K’ Ltd.

The complainant‘s contract of employment specifies that his employer was ‘K’ Limited. 

The complainant was in receipt of numerous P60’s identifying that his employer was ‘K’ Limited, (copies of relevant documents were submitted in evidence)

In High Court Proceedings the complainant issued oppression proceedings against an entity named ‘J’ Ltd which is related company of ‘K’ Ltd.   The complainants petition verified by affidavit identifies his employer as ‘K’ Ltd and ‘K’ Ltd are a notice party to those proceedings.

The respondent submits that the suggestion that the complainant understood that he worked for ‘M’ Limited is untenable in circumstances where within weeks of lodging his claim with the WRC, he issued extraordinary High Court proceedings in relation to a part of his remuneration and included his employer ‘K’ limited as notice party to those proceedings.   Moreover, the complainant knew who his employer was before the claim was lodged as his contract of employment and numerous P60’s sent to the complainant clearly identified his employer as ‘K’ Ltd.

Thus, it is submitted that the complainant has failed the first hurdle of the test required by section 39 in that he has failed to establish that he named the wrong entity as his employer as a result of inadvertence.

The second limb he must overcome is that “the relevant authorities shall not grant such leave if it is of the opinion that to do so will result in an injustice been done to the proposed respondent “

The respondent in this regard submits that whilst it is apparent that there are circumstances in which leave can be granted where the time specified under the enactment within which such proceedings may be instituted has expired, these circumstances do not prevail here.   It is submitted that the application here is being made outside the time limit and further it is being made outside of any extended time period which could be granted.  It is thus apparent that any change name of the respondent at this stage would amount to an injustice been done to the proposed respondent.

Furthermore, it is submitted that the delay on the part of the complainant in responding to the request from the WRC for a submission on 16th of January 2018 is noteworthy.  Aside from failing to furnish a submission within 14 days the complainant did not respond to the WRC in any way for a period of seven months.

It is submitted that having regard to the knowledge which the complainant had regarding his employer, the manifest delay on the part of the complainant responding to the WRC and his delay in bringing this application to change the name of the respondent, a gross injustice would be inflicted on the proposed respondent were they to be parachuted in to these proceedings at this stage.

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 …”.

I note that the complainant in his submission refers to the power to change the name of the respondent in accordance with Section 39(2) and (3), however I am mindful that subsections (2) and (3) apply to circumstances where an application is being made to amend the name of the respondent in circumstances where a decision has already issued.  The complainant in this case has also made an application under Section 39(4) which 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.  This subsection is intended to provide a mechanism by which fresh proceedings can be instituted against an employer which was incorrectly identified in an original complaint.

Having regard to the totality of the evidence adduced in the present case I note that the Complainant in the present case has since the initiation of his claim been represented by his union official.   I also note the persistent delays on the part of the complainant in replying to requests from the WRC for further particulars of this complaint.  In considering the case advanced by the complainant in support of his application under Section 39(4) while I note that the complainant did receive some correspondence on headed paper from company ‘M’ Limited, I am satisfied from the evidence adduced that the name of the Complainant’s employer which was clearly stated on the complainant’s Contract of Employment and on  his P60’s was ‘K’ limited and that ‘K’ limited was also the name of the employer on the complainant’s payslips.  In addition, evidence was adduced that the complainant has initiated High Court proceedings on the 1^st of February 2018 against ‘K’ limited in which he has named ‘K’ limited as his employer on a separate but related matter and in that matter, he has identified his employer as ‘K’ limited.

Having considered the totality of the submissions made and the evidence adduced on this matter and having regard to all of the circumstances of this case I am satisfied that the application under Section 39(4) of the Organisation of Working Time Act 1977 does not succeed.  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.

Having evaluated the totality of the evidence adduced in this case,   I find that the Complainant has named the incorrect Respondent as employer in these proceedings and accordingly I find that I do not have jurisdiction to hear this complaint.

Section39(4), amend respondent name, inadvertence, jurisdiction