Complainant

Respondent

Anonymised Parties

An Employee

An Employer

Representatives

John Bolger PC, HR/IR Mediation/Consultation Service

William Fry Solicitors

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-00031243-001

01/10/2019

The Complainant’s representative wrote to the Workplace Relations Commission stating that the complainant’s wished to pursue a claim for Unfair Dismissal. He did not elaborate on the reasons he alleged he was unfairly dismissed. The Respondent, he states, knew the reasons. He was aware the Respondent had stated that the WRC had no jurisdiction to process the application due to the fact that no complaint form has been filed. The complainant’s representative is not computer literate. He did not know how to fill out the form on online. When he received the letter from the WRC he did not think to ask for the form to be sent to him, so he could fill it out manually. He did receive a letter from the WRC stating that he could proceed in the absence of a complaint form. That letter quoted the Brannigan V Louth VEC decision.

FIRST PRELIMINARY OBJECTION

The Respondent makes three preliminary objections to the jurisdiction of the Workplace Relations Commission ("WRC") to hear the within complaint. These are:

         i.            The WRC lacks jurisdiction to adjudicate upon the purported claim for unfair dismissal herein in circumstances where the Complainant has not complied with the statutory requirements laid down under Section 41 of the Workplace Relations Act 2015;

First preliminary objection: any hearing by the WRC is ultra vires due to the Complainant’s non-compliance with Workplace Relations Act 2015 and Supreme Court Brannigan decision.

The Complainant herein has furnished no, or no adequate details, of the complaint being pursued before the WRC and the Respondent’s solicitors have written to the WRC specifically putting this matter in issue.   Reference is made to correspondence dated 30 October 2019, a copy of which is exhibited at Appendix 1 hereto.   In the said correspondence the solicitors for the Respondent expressly relied upon Section 41(9) of the Workplace Relations Act 2015 explaining how the WRC did not have any jurisdiction to deal with the said complaints. By way of reply dated 19 November 2019, a copy of which is exhibited at Appendix 2 hereto, the information and customer services division of the WRC referred to the case of “Brannigan v. Louth VEC in the Equality Tribunal”.

It is assumed that the said reference refers to the Supreme Court decision in County Louth Vocational Education Committee v Brannigan [2016] IESC 40. The said decision, however, is not authority for the proposition that it is not necessary to put in any complaint form or complaint documentation whatsoever. On the contrary, it is authority for a very different proposition – namely that once an outline of the main complaints is made on the appropriate complaint form (in that case, a form EE1 had been submitted by the complainant, in contrast with the present case where no form whatsoever was apparently submitted), then it is open to the Adjudication Officer to allow further detail to be provided even where such detail is not provided on the form. That is manifestly a very different situation to that which pertains in the instant case and accordingly the Respondent will rely upon the Brannigan decision and the statutory wording underpinning the holding of a WRC hearing in order to impugn the jurisdiction of the WRC to proceed with this complaint. In particular, the Respondent invokes the dictum of MacMenamin J in Brannigan where MacMenamin J cautioned at paragraph 61:

“It goes without saying, first, that the duty of the [Adjudication] Officer is both statutory, and, ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry.”

The Respondent submits that the failure by the Complainant to present a Workplace Relations Complaint Form means that it would be ultra vires the WRC to proceed to hear his complaint.

The complainant did not file a complaint form with the WRC. His representative wrote a letter simply stating:

“I enclose copy of Correspondence dated 07/O8/2O19 which I had sent to Mr C. B.

In this letter as you can see, I was seeking an early hearing on behalf of a [ the complainant] of xxxxxx Co. Carlow who had been summarily dismissed from his employment.

Mr B has suggested I now correspond with you in order to have this matter dealt with.[The complainant] is strongly of the view that he was unfairly treated and I would welcome an adjudication under the section 8 of the unfair dismissals Act….”

By Letter dated the 30th October, 2019 the respondent wrote to the WRC stating:

“The WRC's "Procedures in the Investigation and Adjudication of Employment and Equality Complaints" state that complaints "should be made using the Workplace Relations Complaint Form." lt is to be presumed that that form, and the particulars contained in that form are the form and particulars specified in Section 41(9) of the 2015 Act. Ln light of the mandatory provisions of Section 41(9), the WRC does not have any jurisdiction to operate an extra-statutory scheme for accepting complaints.”

By letter dated the 19th November,2019 the WRC wrote the Respondent stating:

“In relation to the Workplace commission treating the submitted documentation as sufficient to initiate a complaint in accordance with Section 41 (1) of the Workplace Relations Act 2015 the Workplace Commission do not have a prescribed form.

For the purpose of information, please see Brannigan and Louth VEC in the Equality Tribunal.”

The complainant is relying Brannigan decision stating that he doesn’t have to file a complaint form. Once the respondent knows what the claim is, that is sufficient. I note that the entirety of the information furnished to the respondent was that the complainant deemed himself to have been unfairly dismissed and that he wished to have a hearing on the matter. I agree with Respondent that the Brannigan decision is not an authority for the proposition that it is not necessary to put in any complaint form or complaint documentation whatsoever. It is an authority for a very different proposition – namely the amount of information that is contained in a complaint form and whether or not it is open to the Adjudication Officer to allow further detail to be given even where such detail is not provided on the form.

The complainant did not submit a claim form, nor did he submit any details in relation to the claim other than he deemed himself to be unfairly dismissed. The letter written to the respondent on the 19th November was entirely incorrect in its interpretation of the Brannigan decision. The minimum standard that is required is that a complainant will file a complaint form setting out some details of the complaint and/or allegations being made against a respondent. That did not happen in this case and accordingly I find that I do not have jurisdiction to hear the complaint.

The complaint fails.