ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019293
Parties:
| Complainant | Respondent |
Anonymised Parties | Guesthouse/Bar Manager | A Guesthouse/Bar Owner |
Representatives |
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Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00025169-001 | 21/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00025169-002 | 21/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00025169-004 | 21/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00025169-005 | 21/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00025169-006 | 21/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00025169-008 | 21/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00025169-009 | 21/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00025169-010 | 21/01/2019 |
Date of Adjudication Hearing: 17/05/2019
Workplace Relations Commission Adjudication Officer: James Kelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant commenced employment at the Guesthouse/Bar on 22 February 2018. He said he was not issued with a contract of employment. He claims that he was accused of taking money from the business and sought to clear his name and recover the wages and other money owing to him including bank holiday’s and holiday entitlements. He said that he managed to have a meeting with the Respondent to explain his side of the story and clear his good name, which he claims he did.
The Complainant said that the Respondent promised to pay what was owed to him. However, after a number of weeks of unanswered calls and texts and failure by the Employer to turn up for pre-arranged meetings, the Complainant referred the case to the Workplace Relations Commission. The Respondent said that he is not the correct Respondent in this case. |
Summary of Complainant’s Case:
In relation to the preliminary matters raised, namely that the complaints were filed out of time and against the wrong Respondent; the Complainant said that he was never sure who his employer was. He said that he dealt with the named Respondent, he is the person who interviewed him and that he worked for. The Complainant said he was not legally represented and had taken a separate case against another Respondent “the Company”, as he was uncertain of the process and who the correct Respondent was in this situation. In relation to the question as to whether the complaints were filed within the 6-month time limits prescribed under Section 41(7) of the Workplace Relations Act, 2015 the Complainant said that he was aware that the complaints were filed outside of the 6-month period from the date of the contraventions of the relevant statutes the various complaints were taken under. However, the Complainant said that it had been in contact with the WRC and was getting information about how to correctly lodge his complaints and he may have made a mistake. He had previously filed a complaint against the company under the Industrial Relations Acts and had referenced in the narrative the issues raised here and requested that this should be taken into consideration. He said the time delay was because he was trying to resolve his grievances directly with the Respondent for some time and there were signs it might be resolved amicably and because of that he ran out of time before he lodged the complaint with the WRC. |
Summary of Respondent’s Case:
The Respondent is a natural person and said that he is not the correct Respondent in this case. He said that he is the person who has worked with the Complainant, but the correct Respondent is a limited company, the owners of the business where both he and the Complainant had worked. The Respondent said that the correct Respondent was identified in a separate Recommendation issued by the WRC recently which was brought by the Complainant against that Respondent and where the Adjudication Officer made a Recommendation in relation to that dispute. He claims that it cannot be the situation where one Respondent is responsible one day and a different Respondent is responsible another day. The Respondent said that there cannot be two decisions/recommendations issued by the WRC citing different Respondent’s on the same matters. He said that the correct Respondent is the company and not him as he never employed anyone in a personal capacity. The Respondent said that the complaints are out of time, there is no exceptional reasons made out to extend the time limits and the WRC therefore has no jurisdiction to hear the complaints. |
Findings and Conclusions:
At the outset I asked both parties to comment on the jurisdictional issues that needed to be addressed before I could consider the substantive matters contained within the individual complaints themselves. I am satisfied that there are two matters that require my attention namely a question regarding the time limits as set out in Section 41(7) of the Workplace Relations Act, 2015 and a question regarding who the correct Respondent is. On 14 March 2019 I held a hearing with the same Complainant in relation to a dispute that he had with a named Guesthouse/Bar. The Respondent on that day was identified as a company, Company X. A Recommendation was issued subsequently against that Respondent, Company X, under Reference number ADJ-00018429. The facts of that case are similar, if not identical, to the case before me for consideration here. The two jurisdictional matters although are separate but interlinked. The Complainant’s employment ended on 23 June 2018 and he lodged a complaint (ADJ-00018429) with the WRC under the Industrial Relation Acts 1969 against Company X. From the Complainant’s own evidence, he may have made a mistake and the complaints should have been lodged under various pieces of legislation and when he discovered that mistake, he set to remedy it by filing individual complaints under the present case (ADJ-0019293). These complaints were lodged with the WRC on 21 January 2018. One month and a half after the first complaints were lodged with the WRC and some seven months after his employment terminated. These complaints are against a natural person and not against Company X. I have heard from the Complainant that he was unsure of the process and who the correct Respondent is, and this should be taken into consideration when determining jurisdiction. The Respondent said the complaints are out of time and there already exits a decision/recommendation from the WRC against ‘Company X’ on the same set of facts and the Complainant has named the wrong Respondent in this case. The Law Section 41 sets out the requirements for the presentation of complaints and referrals of disputes and at subsections 41(6) and 41(8) is set out the time limits “… (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. … (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”(my emphasis added) The established test for deciding if an extension of the time limits should be granted for ‘reasonable cause’ was addressed in Labour Court Determination WTC0338 (October 28, 2003) Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. The test was set out in the following terms: - It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case. In that case, and in subsequent cases in which this question arose, the Court adopted an approach similar to that taken by the Superior Courts in considering whether time should be enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36. It appears that the formative decision on this point is that of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here the Court was concerned with applying a provision of the Rules of the Superior Courts which allows for an extension of time for bringing judicial review proceedings where there is good reason for so doing. Here Costello J. (as he then was) stated as follows: - “The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.” As an alternative to this, I note the decision in Seamus (James) O'Dwyer v Sword Risk Services Limited [2014] 25 E.L.R. 123, which in following Costello J's decision in O'Donnell v Dun Laoghaire Corporation [1991] I.L.R.M. 301, confirmed that: " ... a court should not extend a statutory time-limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings. The judge pointed out that the reason relied upon must excuse the delay on an objective standard". In consideration of this question regarding the extension of time I am mindful of all the specific facts that are before me. In particular, the Complainant’s own evidence in chief that having realised he had erred in that his complaints should have been lodged under the various statutes rather than one complaint under the Industrial Relations Acts he set about correcting that but failed to meet the time limits. I am satisfied that Company X, from that point, was on notice of a dispute under the Industrial Relation Acts. Notwithstanding, I note that the second complaint, the case here for consideration, was not only sent in to the WRC outside the six months’ time limit but was also changed. The Respondent has changed from Company X to a natural person. I determine that to be a significant factor in this case. In relation to the change of Respondent I note the dicta of Hogan J. in O’Higgins v UCD and the Labour Court [2013] IEHC 431 (at paragraph 17) “In my judgment, the same principles apply by analogy to the present case. The proceedings were commenced within time and all relevant parties were duly served in the manner required by O. 106, r. 4. The motion paper and affidavits outlined with clarity the case the appellant wishes to make. Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be). The matter could easily have been rectified by the making of an appropriate order amending the title to the proceedings. As in Re MJBCH, there was no overriding policy objective which ordained that proceedings of this kind should be nullified by reason of such essentially harmless error.” I also take note of the Labour Court in Wach v Travelodge Management Ltd EDA 1511: “The decision of the High Court in County Louth VEC v Equality Tribunal [2009] IEHC 370 is a seminal case on the question of when proceedings before a statutory tribunal can be amended. In that case 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. I note in the Supreme Court in Halal Meat Packers (Ballyhaunis) Ltd v Employment Appeals Tribunal [1990] I.L.R.M 293 where Walsh J stated, albeit obiter: - 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.” Therefore, it’s clear that it could be said that statutory tribunals, such as the WRC, should operate with the minimum degree of procedural formality consistent with the requirements of natural justice. Where there is no question of prejudice or surprise for the Respondent and depending on the circumstances of the case there is the possibility of correcting the name of the Respondent. In deciding if the name of the Respondent should be amended, I have taken note of the determination of the Employment Appeals Tribunal in Jeevanham Al Tambraga v Orna Morrissey and Killarney Avenue Hotel (UD36/2011). 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 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 had sight of who his employer was, or at least had the possibility to determine who his employer was and therefore who the correct Respondent was, from his P45. This was raised in the hearing and was referenced in the Recommendation in ADJ-00018429. Taking all the factors into consideration I am satisfied that this is not just a situation where either a simple extension of time could be granted to allow this case fall within the “reasonable cause” category provided for under Section 41(8) of the Workplace Relations Act. These complaints are different in too many ways from the earlier complaint under ADJ-00018429, which was lodged with the WRC, in that both the legal framework with which the complaints fall under is different as well as the different Respondents cited. This coupled with the fact that the Complainant was satisfied that the Respondent was Company X in the related case under the Industrial Relation Acts is now suggesting that the Respondent is a natural person. It was suggested that I should now consider that both Respondents to be one in the same and allow the case to be considered within the timeframe due to reasonable cause. I find that this complaint was taken outside of the six-month period outline under Section 41(6) the Acts, and I do not consider that the reasons offered to extend the time limits as those that come within Section 41(8) of the Acts as reasonable cause. I find that the Complainant has named the incorrect Respondent as the employer in these proceedings. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that I do not have jurisdiction to hear this complaint. |
Dated: 3rd September 2019
Workplace Relations Commission Adjudication Officer: James Kelly
Key Words:
Workplace Relations Act 2015 – time limits – wrong Respondent – no jurisdiction |