ADJUDICATION OFFICER DECISION.

Adjudication Reference: ADJ-00021664

Parties:

	Complainant	Respondent
Anonymised Parties	A chef	A licensed premise

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00028406-001	14/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00028406-002	14/05/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00028406-003	14/05/2019

Date of Adjudication Hearing: 30/08/2019

Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and/or Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

Background:

The Complainant was employed by the Respondent as a chef, her employment commenced on 15th December 2010 and ended on 14th February 2019. Working a 40-hour week she was paid €445.75 per week.

This complaint was received by the Workplace Relations Commission on 14th May 2019.

Preliminary Argument:

The Complainant submitted her application to the WRC on 14th May 2019 against the wrong Respondent, the Respondent named in the Complaint form is a shell company only in existence to satisfy the needs of the bank and for no other purposes.

As the Adjudication Officer hearing the complaint, I informed the parties that it was my intention to amend the Respondent name to the correct Respondent, there was an objection from the Respondent representative.

I then informed the parties that I would address this issue in my decision and move onto the substantive issue.

Outcome of Preliminary Argument.

Organisation of Working Time Act 1997, Section 39(4)

Section 39(4) gives certain scope to allow for an application to be made to a relevant authority for amendment of the name of an employer. These provisions provide a relevant authority (including an Adjudication Officer) with the power to grant leave to an employee to pursue the correct employer, in circumstances where proceedings have already been initiated against an incorrectly named employer.

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 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 as 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.

(5) References in subsection (4) to the institution of proceedings in respect of any matter under an enactment or statutory instrument referred to in subsection (2), or the Table thereto, shall be construed as including references to the presentation of a complaint, or the referral of a dispute, in respect of the said matter, to the relevant authority concerned”.

The power to invoke the provisions of Section 39(4) apply only in the following circumstances:

Where an employee has already instituted proceedings against an employer (i.e. which subsequently transpires to have been an incorrectly name employer) under an enactment included in the Table (as set out in subsection (2)).
The employee seeks leave from the relevant authority to pursue the correct employer in respect of the matter being subject of the initial proceedings in circumstances where the employer has not had the opportunity to be heard
The fact of the said person not having the opportunity to be heard was owing to a misstatement of its name or details
The said misstatement was due to inadvertence; and
The relevant authority shall not grant such leave, if to do so, would result in an injustice to the proposed employer.

The key issue for consideration in terms of deciding whether or not to grant leave to an employee to pursue the correct employer (as indicated at point d above) is whether or not the misstatement of the employer’s name was due to inadvertence.

Having considered the matter, I will allow the hearing of the complaint under the Unfair Dismissals Act. The complaints referred under the Industrial Relations Act, 1969 and the Safety, Health & Welfare at Work Act, 2005 cannot be heard as they are made against the wrong respondent. Neither of these Acts are included in the table of enactments for the purpose of Section 39 of the Organisation of Working Time Act, 1997.

I have changed the name of the Respondent to the one shown in the heading of this document.

Summary of Complainant’s Case:

The Complainant contends that she was working happily as a chef for nearly 10 years. One of the barmen, Mr D who commenced employment around the same time as the Complainant, the Complainant and Mr D had very few dealings with each other until a year or two ago when Mr D was sent to the kitchen as a chef with the clear objective of expanding the food business. The Complainant was involved in the training of Mr D as a chef.

The Complainant alleges that Mr D started to bully her and other staff around 2016 or 2017 and constantly criticised her in front of other staff members and at times this treatment reduced her to tears. Mr D would often ask the Complainant when she was leaving.

The Complainant reported this treatment to management and they acknowledged the allegations of bullying but claimed they could do nothing about the bullying.

In August 2018 the Complainant contends that she driven by the treatment to write a letter of resignation however she agreed not to resign when informed that Mr D had resigned from his employment. The Complainant was given assurances that if she returned to work Mr D would not be there.

The Complainant went back to work and in January 2019 she was absent from work with a problem in her shoulder. During her absence Mr D returned to the Respondent’s employment and was still in employment when the Complainant was in a position to return to her employment.

The Complainant felt that the only course open to her was to reign which she did by letter dated 224th January 2019.

Summary of Respondent’s Case:

The Complainant has been an employee with the Respondent since 2009, she was employed on a permanent basis working 30 hours or more per week, depending on business needs.

In January 2019 the Complainant went on a period of sick leave due to a shoulder injury sustained outside of work. The Complainant was absent from work for a two-week period but failed to furnish a medical certificate during this period, she kept the Respondent updated vis text messages.

In late January the Complainant indicated she would be returning to work and the Respondent informed her that they would arrange a roster for her. The Complainant was placed on a minimal hour roster as they were unsure how fit she was to return, would she be looking for light duties that had been suggested by her partner, a customer at the public house.

The Complainant then contacted the Respondent querying these minimal hours and was placed on her regular hours. The Complainant never returned to work.

The Respondent received a letter from the Complainant’s GP informing them that the Complainant’s intention was to resign.

The Complainant sent a formal grievance letter dated 24th January. The Respondent replied to this suggesting that the Complainant attend a meeting on 4th February 2019 to discuss this letter and any problem she may have.

The Complainant did not attend this meeting and the Respondent subsequently made an attempt to re-arrange the meeting, this re-arranged meeting was scheduled for 8th February. The Complainant did not attend this re-arranged meeting and instead chose to send a letter of resignation. The Complainant sent two letters dated the same day, both letters were dated 14th February 2019.

On receipt of this resignation the Respondent wrote to the Complainant again requesting that the Complainant attend a meeting in order to discuss her complaint in further detail and the letter offered her some re-assurance that her position remained open to her. The suggested meeting was scheduled for 22nd February 2019.

The Complainant replied to this meeting request on 24th February 2019 by writing to the Respondent outlining that they had made her position untenable through not taking her complaint seriously and again stated that she was not willing to attend a meeting to go through her complaint.

In summary the Respondent states that they did not dismiss the Complainant, nor did it cause the Complainant to terminate her own employment.

Findings and Conclusions:

I have considered this complaint very carefully and feel that the Complainant has acted in haste towards the end of her employment.

The Respondent was in a position in which they were not aware when the Complainant may have been in a position to return to work. The Complainant did not submit medical certs to the Respondent and the Respondent required the services of a chef.

In Conway V Ulster Bank UD474/1981 the EAT considered that the Complainant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’. In this instant case the Respondent has offered on more than one occasion the opportunity to the Complainant to utilise the grievance process in place.

Had the Complainant fully utilised the grievance procedure in place the outcome could have been very different.

The failure of the Complainant to utilise the grievance procedure cannot be overlooked and it is for this reason that I find that the complaint as presented is not well founded and therefore fails.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

As outlined above. The complaint as presented is not well founded and therefore fails.

Dated: 19/9/19

Workplace Relations Commission Adjudication Officer: Jim Dolan

Key Words:

Constructive Dismissal.