Complainant

Respondent

Anonymised Parties

An Employee

An Employer

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00030820-001

10/09/2019

The Complainant commenced working with the Respondent, a horse breeder/stud farm owner, in February 2008.

The Complainant submitted a complaint, under the Redundancy Payment Act, 1967, to the Workplace Relations Commission on 10 September 2019. That complaint is the subject of this adjudication.

According to the Complainant, the original working arrangement with the Respondent (Mr A) in 2008, which was by way of verbal agreement at the time, was that she would ride/school horses for him in return for accommodation, with utilities paid and a wage every week.

The Complainant submitted that, for the first year of the arrangement she received her wages. However, the Respondent’s business went into liquidation the following year. According to the Complainant’s evidence, there was a further verbal agreement between her and Mr A that in exchange for looking after a small number of broodmares that were still on the farm, she could stay living in the accommodation, rent free, as long as she paid the utility bills.

According to the Complainant, as the Respondent’s business began to recover over the years, she intermittently but infrequently received some payments, which were always in cash, until 2017, when she received payment into her bank account on a number of occasions. However, she did not receive any payslips. However, the Complainant submitted that in 2018/2019 her weekly payments were all paid by cash.

The Complainant submitted that as the business continued to improve, her workload increased to the point where she was no longer able to carry it out on her own.   According to the Complainant, when she brought this to the Respondent’s attention, he sent a farm hand/handyman to assist her for a few hours each day.

According to her evidence, the Complainant suffered an accident in December 2018 which prevented her from riding horses for a number of months. The Complainant submitted that, on her return to work following the period of incapacitation, her workload consisted of just looking after one horse. According to the Complainant’s evidence, another trainer, who had rented part of the Respondent’s yard was riding out on the other horses.

The Complainant submitted that she spoke with the Respondent, at that point in time, as she felt insecure in her position as a result of how matters were developing. According to the Complainant’s evidence, in this regard, Mr A informed her that while any work she did in the future would be paid for, he was not in a position to indicate how much work there would be for her. In addition, the Complainant submitted the Respondent informed her that, in the meantime, she would be required to sign a lease on the accommodation and commence paying rent.

The Complainant ceased employment with the Respondent on 23 August 2019 and submitted her claim for redundancy to the WRC on 10 September 2019.

A representative (Mr B) attended the Oral Hearing and advised that he was there to represent Mr A, the individual, as opposed to the entity, named on the Complainant’s complaint form.   Mr B provided a document, purportedly signed by Mr A, authorising him to act on his behalf by proxy at the Hearing.

At the commencement of the hearing Mr B, made a preliminary point in relation to the correct identity of the respondent in this case. According to Mr B’s submission, the Respondent as identified on the complaint form does not exist. According to Mr B’s submission, as the Complainant had received salary in 2017 she should have been aware of the correct name of her employer.

On the basis that the respondent was not correct, Mr B submitted that the matter was procedurally flawed and he was therefore requesting that the case be dismissed.

Preliminary point:

On the electronic complaint form submitted to the WRC, on 10 September 2019, the respondent is identified as “Mr A Construction”. At the Oral Hearing, the Complainant confirmed in her evidence that Mr A’s surname was misspelled, in error, on the electronic complaint form.

In her direct evidence at the Oral Hearing, the Complainant confirmed that all engagements and/or interactions, in relation to her employment, from its commencement in 2008 to its conclusion in August 2019, had been with the individual named Mr A.   According to the Complainant’s evidence, these engagements included, inter alia, the original verbal agreement regarding her employment, discussions (in 2009) regarding the impact on that relationship of Mr A’s business going into liquidation and, finally, discussions in relation to the working relationship in August 2019 which led to the ceasing of the employment.

The Complainant submitted, in evidence, four payslips she received in 2008,which she confirmed were the only payslips she received throughout the entirety of the 11 year working relationship with Mr A. An examination of the payslips in question, which were dated 1 April, 27 May, 3 June and 9 September 2008, showed that three of the payslips identified the employer as “X Construction Ltd”, while the remaining payslip, that of 9 September, identified the employer as “Y Stud”.

In addition, the Complainant submitted that the only time she received wages, in a format other than cash, was in August/September/October 2017, when it was paid directly into her bank account. The bank statements, submitted by the Complainant, in support of her evidence in this regard, identifies the weekly payments as “POSA WAGES”.

In her direct evidence to the hearing, the Complainant stated that, based on the evidence submitted, she understood Mr A to be her employer at all stages throughout the 11 year employment relationship. On that basis she requested that her complaint against Mr A would be heard and that a decision issue on that basis. This in effect amounted to a request by the Complainant to substitute the correct respondent, Mr A, for the incorrect one “Mr A Construction”, as appeared in the complaint form.

In considering the Complainant’s request in this regard, I found the recent Labour Court case of “Auto Depot Limited v Mr Vasile Mateiu” [UDD1954 – 2 October 2019], to be extremely informative.

In that case, the Labour Court found that the provisions of Section 39(4) of the Organisation of Working Time Act, 1997, were “intended to provide a mechanism by which fresh proceedings can be instituted against an employer”. However, the Court went on to state that: “this subsection does not deal with the amendment of either proceedings or a decision. Nor does it allow for the substitution of one respondent for another”.

Consequently, based on the above, the Court, concluded as follows: “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 the correct respondent in this case”.

In their consideration of the matter before them, the Court reviewed the main relevant authorities on this matter, including: Travelodge Management Limited v Sylwia Wach [EDA1511, 30 June 2015], County Louth VEC v Equality Tribunal [2009, IEHC 370] and Sandy Lane Hotel Limited v Times Newspapers Limited [2011, 2 I.L.R.M 139].

Noting the different authorities emanating from the above cases, the Court, in the Auto Depot case, made specific reference to the more recent High Court case, Capital Food Emporium (Holdings) Limited -v- Walsh & Others (2016) IEHC 725. In particular, the Court noted that Barrett J. distinguished, in a number of significant respects, the Sandy Lane case, on which the Court in Travelodge placed considerable significance, when he 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.”

Applying this approach to the circumstances in the Auto Depot case, the Court concluded as follows:

“the court is fully satisfied that the correct employer has been pursued by the Complainant….. The respondent party has had a full opportunity to be heard and to answer those complaints. The Court was therefore the equally satisfied that the employer will suffer no prejudice or injustice by its decision in this preliminary matter”.

Having carefully reviewed the authorities set out in both the Capital Food Emporium and the Auto Depot cases, I am fully satisfied that they equally apply to the within case. This view is based on the following:

§  The representative (Mr B) who attended the Oral Hearing and submitted in evidence that he was representing Mr A, “the individual”, confirmed to the Hearing that the notification of the Complainant’s complaint, as contained in the letter of 13 September 2019, in this regard, was received by Mr A. The representative’s attendance at the hearing is further, irrefutable, evidence that Mr A received the notification of the complaint.

§  Therefore, it is clear that Mr A was on notice that the Complainant had issued an employment complaint against him.

§  Both the Complainant and Mr A were notified by way of letter dated 20 January 2020 that a hearing before an Adjudication Officer would take place on 26 February 2020. No evidence exists, either direct or indirect, to suggest that Mr A made any effort, following receipt of the WRC notification in September 2019 and/or the Hearing notification in January 2020 to advise the Commission that he was not the Complainant’s employer.

§  At all material times in the pursuit of the complaint against Mr A, the Complainant was not represented legally or professionally in anyway. Consequently, I am satisfied that the Complainant in this case, could really be considered in the context of the “ordinary person”, as referred to in the Sandy Lane case.

§  From the evidence adduced, it is also clear that the Complainant was never, as is required by the provisions of the Terms of Employment (Information) Act, 1994, provided with a written statement of the terms and conditions of her employment. Clearly, if the Complainant had been provided with such a statement it would have correctly identified her employer.

§  In the absence of any reliable or accurate documentation, such as payslips etc, I am satisfied that the Complainant did the best she could in her efforts to accurately identify, from a technical perspective, the correct title of her employer, whom in any event she always considered to be Mr A, the individual.

In addition to all of the above, I note the relevance attached by the Labour Court, in the Auto Depot case, to the High Court case of O’Higgins v University College Dublin & Another [2013 21 MCA], where Hogan J. held as follows: “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)…. In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.”

With regard to the within case, I am satisfied that Mr A, is not prejudiced by the Complainant’s technical error in the completion of the complaint form. The evidence, as presented by the Complainant, clearly demonstrates that, at all times, throughout the eleven year working relationship, Mr A operated and behaved as her employer. I am further influenced, in this regard, by Mr A’s failure to raise any issue in relation to this matter when officially advised of the complaint, despite having ample opportunity and time to do so. Consequently, I believe it would be disproportionate and a travesty to deny the Complainant the opportunity to have her complaint heard on the basis of a technical error in the completion of her complaint form.

Taking all of the above into consideration and, having carefully considered all of the evidence adduced in the within case, I am satisfied that, in the submission of her complaint against Mr A, the individual, the Complainant has been pursuing the correct employer. In addition, I find that the identification of the respondent on the WRC electronic complaint form as “Mr A Construction” represents a technical error which, in line with the determination by the Labour Court in the Auto Depot case, can be simply amended to that of Mr A.

Based on the above finding I reject the Respondent’s preliminary point and now proceed to consider the Complainant’s substantive claim under the Redundancy Payments Act.

Substantive Complaint:

The Complainant’s claim is based on her contention that her work with the Respondent was changed and significantly reduced, particularly in 2019, to the extent that by August of that year he was not in a position to advise her as to the nature or extent of any future work.

The Respondent did not provide any direct evidence in relation to the change of work patterns and/or the Complainant’s employment status. Consequently, I am satisfied, based on the uncontested evidence of the Complainant that the significant level of work she had in 2017, which required her to give up a number of part-time jobs she had in order to fully concentrate on work for the Respondent, had significantly reduced by mid-2019, to the point where he was no longer in a position to advise when he might have work for the Complainant and/or what the extent of that work might be.

Section 7 (2) of the Redundancy Payment Act, 1967, states as follow:

“For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to –

(a)the fact that his employer has ceased, or intends to cease, to carry on the business for the purpose of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b)the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish.”

Having carefully considered the evidence presented by the Complainant and in the absence of any evidence, in this regard, from the Respondent, I am satisfied that, in the context of the above section from the Act, the termination of the Complainant’s employment with the Respondent represented dismissal by reason of redundancy. Consequently, I find that the Complainant's claim for redundancy is well founded.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s claim for redundancy is well-founded and she is, therefore, entitled to statutory redundancy based on her service from 1 February 2008 to 23 August 2019, subject to her PRSI status.

Redundancy Payment Acts