Complainant

Respondent

Anonymised Parties

A Sales Assistant

A Retail Store

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-00032910-001

11/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00032910-002

11/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00032910-003

11/12/2019

The complainant commenced employment in one of the respondent’s concession stores on May 1st 2016. When his employment was terminated, he was working in a standalone outlet. He was dismissed on June 24th 2019, following an investigation into the falsification of sales records, behaviour which, according to his employer, amounted to gross misconduct. He claims that his dismissal was not justified and that it was substantively and procedurally unfair. He also claims that he did not receive his statutory entitlement to notice.

On behalf of the respondent, A & L Goodbody Solicitors sent a written submission to the WRC on February 24th 2020. At the outset, a preliminary issue was raised concerning the name of the respondent that the complainant identified on his referral complaint form as his employer. On the form, the complainant said that his employer was “A-B,” whereas, the respondent said that he was employed by “A-C.”

A-C is a UK limited company and A-B is an Irish limited company and both are subsidiaries of a major food multinational with headquarters in a third country. On his contract of employment, A-C is stated to be the complainant’s employer. A-B was responsible for payroll and it appears that its HR department provided advice to A-C in relation to disciplinary matters.   Before he was dismissed, in June 2019, the letters requesting the complainant to attend disciplinary meetings were written on the headed notepaper of A-B and his letter of dismissal was on the same headed paper. Throughout his employment from 2016, his payslips were issued by A-B.

At the hearing on February 26th 2020, I was informed that, in December 2018, through his solicitor, the complainant initiated a personal injury claim against his employer concerning an accident at work in July 2018. To assist with a determination regarding the complainant’s understanding of the identity of his employer, I requested copies of the correspondence sent by the solicitor regarding the personal injury claim. On February 28th, I received copies of three letters, each dated December 14th 2018. One letter is to A-B, the second, similar letter is to A-C and a third, similar letter is to a contract cleaning company.

On March 6th 2020, the respondent’s solicitors sent a further submission to me setting out their position regarding the significance of these letters. The complainant’s solicitors sent a response on March 10th. As the hearing ended on February 26th, and as no further submissions had been requested from either party, I have taken no account of this correspondence.

The complainant’s former employer, A-C, operates 58 retail outlets in Ireland and the UK, eight of which are in Ireland. All the employees in Ireland are employed by A-C. For payroll administration reasons, A-C employees in Ireland are paid by A-B but are not employed by A-B. In circumstances where the complainant never worked under a contract for A-B, it is submitted that A-B is not his employer for the purpose of the Unfair Dismissals Act and accordingly, cannot be held liable for his alleged unfair dismissal.

For the respondent, Mr Doyle acknowledged that I, as the adjudication officer, may exercise discretion to substitute one party for another where the wrong party has been named on the WRC complaint form. However, referring to the decision of the Labour Court in the case of Sylwia Wach v Travelodge Management Limited, EDA 1511, Mr Doyle submitted that it is not appropriate to do so where the statute of limitations has passed. The complainant was dismissed on June 24th 2019 and therefore, on December 23rd 2019, his complaint became statute barred. In accordance with the outcome from the Travelodge case, the respondent submits that I have no scope to permit the complainant to substitute A-C as his employer for the purpose of the complaints he submitted to the WRC on December 11th 2019.

Mr Doyle acknowledged that, if the complainant wished to bring a complaint against A-C, he could do so if he could demonstrate “reasonable cause” for the delay in bringing the complaint against this entity. However, he submitted that no such reasonable cause can be shown in this case. In this regard, Mr Doyle referred to the decision of the Labour Court in Brothers of Charity Services Roscommon v Niamh Lynch, EDA 1827.

It is the respondent’s case that the complainant cannot credibly assert that he had a difficulty determining who the respondent was in this case. His contract of employment was with A-C. He was legally advised at the time he submitted his complaint to the WRC and he had an opportunity to get advice from his solicitors regarding the entity against whom he should pursue his claim of unfair dismissal. If he or his solicitors were in doubt regarding the legal name of his employer, they could have sought confirmation before the complaint was lodged. No such confirmation was sought. The complainant has not asserted that he had any difficulty establishing the identity of his employer or that he was delayed in seeking to bring a claim against A-C.

Mr Doyle noted that the complainant only lodged his complaint against A-B less than two weeks before the statutory limitation period expired. In line with the Brothers of Charity case referred to above, this goes against the complainant in terms of the factors that I must have regard to when deciding whether or not to permit the complainant to change the name of the respondent.

In the circumstances where A-B was never the complainant’s employer within the meaning of the Unfair Dismissals Act 1977 – 2015 or the Minimum Notice and Terms of Employment Act 1973 - 2015, Mr Doyle submitted that the claims against this entity should be dismissed.

For the complainant, Ms McVeigh explained that when the complainant sought advice from his solicitor regarding his dismissal, he hadn’t got a copy of his contract of employment to hand. He brought with him the most recent documents he received from his employer, in the form of his dismissal letter, letters associated with the disciplinary investigation and his payslips. A-B is a company with a registered office in Ireland, whereas, A-C has a UK address.   The complainant’s solicitor named A-B, the company with the Irish address, as his employer, which conforms with the information on his letter of dismissal and on his payslips.

As authority for amending the name of the respondent, Ms McVeigh referred to the Labour Court decision in the appeal of Auto Depot Limitedand Vasile Mateiu, UDD 1954. The Labour Court found in favour of Mr Mateiu in relation to his request to amend the name of the respondent on the complaint form. Reflecting the decision of Mr Justice Hogan in O’Higgins V University College Dublin and Another, [2013] 21 MCA, the Court concluded that to decline the complainant’s request would amount to a “grossly disproportionate response” and found that,

“…the erroneous inclusion of ‘Auto Depot Tyres Ltd’ on the WRC complaint form to be no more than a technical error. The Court is fully satisfied that the Respondent’s name can simply be amended on the paperwork to reflect its correct legal title, that of ‘Auto Depot Ltd.’”

Ms McVeigh submitted that no injustice would be done to A-C by amending the name of the employer in these proceedings and a decision not to do so is contrary to the findings of the Labour Court in the Auto Depot case.

It has been established that the complainant incorrectly named A-B as his employer. As a preliminary matter, I must now consider his request to amend the name of the respondent and to have these complaints heard against A-C. On behalf of the complainant, his counsel, Ms McVeigh, relies on the outcome in the Auto Depot case. Arguing against the relevance of the findings in that case, the respondent’s counsel, Mr Doyle submitted that the decision of my colleague, Enda Murphy, in the case, A General Operative and a Restaurant, ADJ-00012656, more closely reflects the circumstances here. In reaching my conclusions, I have drawn heavily on Mr Murphy’s analysis of the case law concerning the incorrect naming of the respondent.

Statutory Provisions Regarding the Power to Amend the Name of the Respondent

Section 39 of the Organisation of Working Time Act 1997 (“the OWT Act”) provides that I, as the adjudicator (the “relevant authority” - subsection (1)) have certain powers to deal with difficulties arising from a respondent being improperly named in a decision given under certain statutes including the Unfair Dismissals Act 1977 and the Minimum Notice and Terms of Employment Act 1973 or, on a complaint referral form. Subsection (2) and (3) of this section set out the parameters for the amendment of a decision already issued. Subsection (4) provides a mechanism for a complainant to issue fresh proceedings against the correctly-named respondent, even where the statutory time limit for initiating a complaint has expired:

“(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 was 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.“

At the hearing, it was made plain that the naming of the incorrect respondent on the complaint referral form was due to a mistake by the complainant’s solicitor. No application was made to initiate fresh proceedings under section 39(4) and for the complainant, Ms McVeigh argued that, taking my authority from the decision of the Labour Court in the Auto Depot case, I can simply “amend the paperwork” and substitute the correct respondent’s name, A-C, for A-B.

Alternative Power to Amend the Name of the Respondent

Aside from the provisions of section 39(4) of the OWT Act, there is precedent for a relevant authority to amend the name of a respondent where the wrong party was named as a result of a clerical or administrative error. As mentioned, counsel for the complainant referred specifically to the findings of the Labour Court in the Auto Depot case. Having examined the facts, it is my view that there is some divergence with regard to the facts in that case compared to the case I am considering here.   While the complainant in Auto Depot, Mr Mateiu, was represented by an experienced person, that person was not a solicitor and, unlike the complainant in the instant case, Mr Mateiu did not have the benefit of legal advice. Mr Mateiu was never issued with a contract of employment or any document that bore the name of his employer. The complainant was issued with a contract of employment between him and A-C. At the time of his dismissal, he was a sales specialist and one of his responsibilities was the training of new employees. He had access to a raft of training documents that showed that he was employed by A-C.   His place of employment, a retail outlet, had the name of his employer over the door.

All of the case law on this issue points to certain critical factors that must be considered by an adjudicator weighing up the merits of a complainant’s request to amend the name of the respondent. With respect to the case in hand, I will consider the request under four specific criteria:

1. What degree of formality is required?

The judgement at the High Court in the case of County Louth VEC v the Equality Tribunal [2009] IEHC 370 is a seminal case on the amendment of documents by a statutory tribunal. Here, Mr Justice McGovern 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.”

In the Travelodge case cited by the respondent’s solicitor, the Labour Court referred to the decision of the Supreme Court in the case of Halal Meat Packers (Ballyhaunis) Ltd v Employment Appeals Tribunal [1990] IRLM 293.

“That is in line with the generally accepted principle that statutory tribunals, such as this Court, should operate with the minimum degree of procedural formality consistent with the requirements of natural justice. On that point the decision of the Supreme Court in Halal Meat Packers (Ballyhaunis) Ltd v Employment Appeals Tribunal [1990] I.L.R.M 293 is relevant. Here Walsh J stated, albeit obiter, as follows: - 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.”

From these examples, it is apparent that, in considering whether to accede to the complainant’s request, I should not be overly stringent and, certainly not more stringent than the standard that would apply in the ordinary courts. In adopting this approach, I find that I have a degree of flexibility in the manner in which I reach my conclusion on this matter.

2. Was the correct respondent on notice of these proceedings and afforded an opportunity to be heard?

Following the submission of the complaint form on which he indicated that his employer was A-B, the WRC sent a copy of the form to A-B in Dublin. It is apparent that this was sent on to A-C in the UK because, on December 19th 2019, on behalf of A-C, the HR Business Partner wrote to the WRC and stated:

“We have received the above complaint at our offices yesterday on behalf of (the complainant). I am writing to confirm that the respondent details are (A-C) rather than (A-B).

“Also could you please note that myself and (name of a colleague) will be acting on behalf of the respondent – as such please direct all correspondence to us via email if possible to (email addresses).”

In the Labour Court case of Ballarat Clothing Limited -v- Ann Aziz EDA 151, the Court followed the reasoning of Mr Justice Hogan in the O’Higgins v University College Dublin case (also cited in Auto Depot Limited) and stated:

“In light of this acknowledgement the Court adopts the reasoning set out by Hogan J cited above and allows the appeal. Not to allow the appeal for such a technical reason where the correct respondent was aware from the commencement of the case that an error had been made and acknowledges it would suffer no prejudice by being named as the correct respondent would amount to a grossly disproportionate response and deprive the appellant of the substance of her right to have the complaint heard and decided on its merits.”

It is clear from the correspondence sent by the HR business partner of A-B on December 19th 2019 that she was aware that an error had been made and she sought to correct that error. She also said that she and her colleague “will be acting on behalf of the respondent,” who she clarified to be A-C. By February 24th 2020 however, that position had changed, and the respondent argued that the complainant was not entitled to pursue his complaint against A-C.

It is my view that, if I amend the name of the respondent, no prejudice would arise for them because they have been on notice from the start that the complaint has been submitted and, since then, they have had an opportunity to respond. Their representatives, including the decision-maker, attended the WRC on the day of the hearing. When the HR business partner of A-C wrote to the WRC on December 19th 2019 stating that she and a colleague will be acting on behalf of A-C, it seems clear to me that, on that date, she accepted responsibility for the employer’s defence.

3. Was the incorrect respondent named as a result of a technical, clerical or administrative error?

In his judgement in the case of Sandy Lane Hotel Limited v Times Newspapers [2011] 3 IR 334, Mr Justice Hardiman gave short shrift to the plaintiff’s case that the omission of the word “Co” from the company’s name was a clerical error. His views were bolstered by the fact that the plaintiffs were “a consortium of businessmen in the course of a complicated series of arrangements made for tax planning purposes, in which they obviously had the benefit of the best legal and taxation advice.”

Mr Justice Hardiman’s findings include a reference to the case of Re: Maere’s Application [1962] RPC 182 where the term, “clerical error” was described as,

“…a mistake in the course of some mechanical process such as writing or copying as distinct from an error arising, e.g. from the lack of knowledge, or wrong information, in the intellectual process of drafting language to express intention”.

We were informed at the hearing that the complainant’s solicitor made a mistake by inserting A-B instead of A-C on the complaint form. To my mind, a technical, clerical or administrative error is one made by a person not qualified to know the correct term to use or one that results from a mis-print or a mis-spelling. It is apparent that, a year previously, when he represented the complainant regarding his personal injury claim, the solicitor was uncertain regarding the identity of the complainant’s employer. To ensure that one of the parties would be held liable, the solicitor sent letters to A-B and A-C (and to a contract cleaning company).   If this uncertainty still existed, it is my view that some effort should have been made to establish the name of the complainant’s employer, before submitting this complaint to the WRC.   I note also that the letter issued to the complainant to confirm his dismissal and three other letters concerning the disciplinary investigation are on the notepaper of the HR department of A-B, and not on corporate headed paper. Beneath the signature of the decision-maker is written, “For and on behalf of A-C.” All of this leads me to a conclusion that the mistake in the naming of the respondent was not a simple clerical or administrative error.

4. Has the complaint been submitted within the statutory time limit?

As has been argued by counsel for the respondent, in the Travelodge case, “notwithstanding the bona fides of the mistake,” the Labour Court held that,

“…while there are some apparently divergent decisions on this subject, the preponderance of authority is that the Superior Courts will not add or substitute a party to proceedings where the limitation period in the action has expired as against that party.”

The complainant was dismissed on June 24th 2019, and therefore, the time limit for submitting a complaint against A-C expired after six months on December 23rd 2019. This complaint was submitted on December 11th and the complainant’s counsel applied to amend the name of the respondent at the hearing on February 26th 2020.   No case was put forward for an extension of the time limit to 12 months.

Conclusion

Based on the case law, I am satisfied that I have some flexibility, outside the statutory provisions, to amend the name of the respondent. I am also satisfied that no prejudice would arise for the respondent if I decided in favour of the complainant in this regard.   Considering the third criterion however, I find that there is some distance between a clerical or administrative error and the failure of the complainant to correctly name his employer on the complaint form. Unlike the companies named in the Auto Depot case, A-B and A-C are separate, distinct, significant and well-known legal entities. As the issue of the name of the employer was the subject of some consideration one year earlier when the complainant sought to establish liability for a personal injury, it is my view that the same attention could have been applied to the complaints before the WRC.

Considering the fourth criteria, that of the time limit, it is my view that I must accede to the authority of the Labour Court in the Travelodge case and find that I cannot substitute the name of the complainant’s former employer for the name of the respondent, where the time limit for submitting a complaint against that entity has expired.

I find that I have no jurisdiction to inquire into these complaints because they have been submitted against the incorrect respondent. I find that a sufficient argument has not been made to permit me to amend the name of the respondent and, finally, I find that the time limit for submitting the complaints against the correct respondent has expired.

Respondent incorrectly named, complaint outside the time limit