Complainant

Respondent

Anonymised Parties

Employee

Employer

Representatives

John Connellan Carley and Connellan

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00012866-001

31/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00012866-002

31/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00012866-004

31/07/2017

The Complaint is seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health and Welfare at Work Act, 2005, and has submitted that he was penalised for complying or making a complaint under the Safety, Health and Welfare at Work Act (CA-00012866-001);

The Complaint is seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977, and has submitted that he was unfairly dismissed and the reason for his dismissal was there was no work available (CA-00012866-002);

The Complaint is seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work)  Act, 2012, and has submitted that he did not receive the same basic working and employment conditions to which a comparable worker would be entitled(CA-00012866-004);

These Complaints were received by the Workplace Relations Commission on the 31st July 2017.

A preliminary issue arose at the commencement of the hearing of this matter on the 9th May 2018 wherein  it transpired that the  Complainant  had issued the aforementioned complaints against the wrong parties.  This matter was adjourned to allow the Complainant to take whatever course of action  they deemed appropriate.

By letter dated the 9th May 2018, the representatives on behalf of the Complainant sought confirmation that their  claim can be amended to reflect the correct parties without the need to issue a claim as reasonable cause had been shown.

By letter dated the 22nd May 2018, the representatives on behalf of the agency through which the Complainant was engaged with, indicated it was their position that they were at not named as a Respondent for any other claim taken by the Complainant. It was submitted that the WRC does not have jurisdiction to transfer a claim from one company to another completely separate company. They submitted that if the Complainant was to take a new claim against a correctly identified party then they were outside the six month time limit in order to do so. Further, no reasonable cause had been shown by the Complainant why a complaint should be entertained within the 12 month period.

The Representatives of the Complainant responded on the 6th June 2018, and submitted that the agency claim should always have been listed as against the correct party  and should proceed as it should always have done and the request to transfer the other claims does not affect the agency through which the Complainant was engaged.

In the circumstances of this particular case, I am satisfied that the Complainant has issued these Complaints against the wrong parties and I have considered the decision in Wach -v- Travelodge EDA 1511 where the Labour Court held

“.. 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 against that party .. the Court could not substitute the name of the employer as the time limit for the claim had expired. It was not appropriate to exercise a discretion to substitute a party to the proceedings where the limitation period had expired as against that party”

These complaints were issued on the 31st July 2017 and although mindful of the provisions of Section 41(8) of the Workplace Relations Act, 2015, which provides:

 (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.

I am satisfied that the Complaint has not demonstrated, either at the initial hearing or in the course of correspondence, that the failure to present the complaints were due to a reasonable cause.

Accordingly, in accordance with the aforementioned decision of Wach -v- Travelodge, I find that it is not appropriate to exercise a discretion to substitute the names of the parties to these complaints where the limitation period has expired as against those parties.

I find that the Complaint (CA-00012866-001) made pursuant to  Section 28 of the Safety, Health and Welfare at Work Act, 2005, is not well founded.

I find that the Complaint (CA-00012866-002) made pursuant to Section 8 of the Unfair Dismissals Act, 1977, is not well founded.

I find that the Complaint (CA-00012866-004) made pursuant to Section 25 of the Protection of Employees (Temporary Agency Work)  Act, 2012, is not well founded.

Time periods