Complainant

Respondent

Anonymised Parties

A Mechanic

A Passenger Coach Operator

Representatives

Yvonne O Callaghan SIPTU Trade Union

none 

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-00034444-001

04/02/2020

The Complainant commenced employment as a mechanic with the Respondent, a coach operator, in September 2013.  His employment was terminated on 13 September 2019. He was paid a fortnightly salary of €1,307.69 and he worked 40 hours per week. A complaint was received by the WRC 0n 4 February 2020. The preferred redress of both parties was compensation.  A remote hearing was held on 2 March 2021.

It became apparent at the outset of the hearing that the Complaint Form submitted by the Complainant did not contain the correct name of the Respondent.

This was an error and that the name used was the Trade Name of the Respondent.

The Respondent, present at the hearing, stated that he had no objection to changing the name on the Complaint Form to the correct legal name of the Complainant’s employer.

Having considered the submissions of both parties and the evidence adduced at the hearing of this complaint, I find that YYYY Ltd is the correct legal name of the Complainant’s employer.

I must now decide whether the Respondent named on the Complaint Form can be changed to the correct legal name of the Complainant’s employer.

Section 39 of the Organisation of Working Time Act 1997 provides that the name of the Respondent on a complaint referral form can be amended in the following circumstances:

(1) In this section “relevant authority” means a rights commissioner, the Employment Appeals Tribunal or the Labour Court.

(2) A decision (by whatever name called) of a relevant authority under this Act or an enactment or statutory instrument referred to in the Table to this subsection that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by any party concerned, be amended by the authority so as to state correctly the name of the employer concerned or the other material particular.

(3) The power of a relevant authority under subsection (2) shall not be exercised if it would result in a person who was not given an opportunity to be heard in the proceedings on foot of which the decision concerned was given becoming the subject of any requirement or direction contained in the decision.

(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.

In making my decision I am guided by the majority determination of the Employment Appeals Tribunal in Jeevanhan Al Tambraga v Orna Morrissey and Killarney Avenue Hotel (UD36/2011) where the Tribunal considered its powers under Section 39 of the Organisation of Working Time Act 1997 and reached the following conclusion:

“The majority acknowledge that s.39 of the Organisation of Working Time Act 1997 gives certain scope to the Tribunal to allow for an application to be made to the Tribunal for amendment of the name of the employer. Such power is qualified quite significantly in s.39(4)(b) of such section noting that there must be inadvertence on the part of the relying party, to justify the making of an amendment. The word inadvertence is the qualifier in these circumstances, meaning an accident or oversight.”

It is therefore clear that in order for an Adjudication Officer to grant leave to the Complainant to change the name of the Respondent, it must be established, firstly, that there has been inadvertence on the part of the Complainant in terms of the failure to identify the correct Respondent when the proceedings were instituted, and secondly, that such leave to amend the name of the Respondent should not result in an injustice being done to the proposed Respondent.

In considering this issue, it is clear from the documentation submitted in evidence that different employers’ names were used by or on behalf of the Respondent in the course of interaction with the Complainant.

I am satisfied that the Complaint Form submitted by the Complainant contained a variation of the name of the company that employed him. I accept that in seeking to record the legal name of the Respondent employer on this form that the Complainant through inadvertence failed to cite the precise legal name of this entity. I am satisfied that the actual employer was fully aware at all material times of the herein proceedings.

I am also satisfied that the granting of leave to amend the name of the Respondent does not result in an injustice or prejudice to the proposed Respondent. The correct Respondent attended the adjudication hearing, they had prepared for the hearing, they took full part in the proceedings, and they had no objection to the name being changed.

Having regard to the foregoing, I am satisfied that it would be an injustice not to allow the Complainant to proceed with this claim in all the circumstances. Therefore, I find that the misstatement of the Respondent’s name on the Complaint Form was due to inadvertence on behalf of the Complainant. Accordingly, I am prepared to accede to the Complainant’s application to amend the name of the employer pursuant to the provisions of Section 39(4) of the Organisation of Working Time Act 1997.

The Respondent stated that the company commenced in 2006 and up to recently employed around 170 people.  However, the Covid 19 restrictions had impacted greatly on the viability of the company.  

The Respondent stated that the Complainant was employed in 2013 as a mechanic and he always found him good to work with. However, in the last two years there had been a lot of complaints about his work and there had been numerous emails sent to the Complainant outlining these problems.  The Respondent stated that he had met with the Complainant on several occasions to discuss his performance as a mechanic.  Because of the nature of the business safety of passengers was of paramount importance and there were concerns about this linked to the Complainant’s performance.

The Respondent stated that he had given the Complainant some verbal warnings and a written warning.  However, it was eventually decided it would be best to let the Complainant go. The Respondent stated that he offered the Complainant €10,000 as a settlement for his termination which was accepted by the Complainant.  This payment was dealt with as if it was a payment of wages and was subject to tax.

The Respondent accepted that the correct procedures had not been followed correctly by the company in their dealings with the Complainant but that the payment of €10,000 was fair compensation in the circumstances.

The Complainant provided a detailed written submission.

The Complainant submits that he was unfairly dismissed. 

The Complainant submitted that when he first started working for the Respondent, he had his own business working in tandem but as the Respondent’s company grew the Complainant could no longer continue his own business and threw his lot in with the Respondent, becoming a full-time mechanic with the company.  He worked hard for the Respondent, often working into the night to have coaches ready for the morning.

The Complainant submits that he was never given a contract of employment, he was poorly paid and subject to unwarranted deductions from his pay. From 2017 on the Complainant felt he work was being undermined deliberately by management.

By the beginning of 2019, the Complainant submits that he was being put under undue pressure by his employer. By mid to late 2019 the situation had deteriorated, and the Complainant was eventually dismissed in September 2019. 

The Complainant submits that the Respondent failed to undertake fair and formal procedures such as a grievance process to call into question the conduct of the employee. That there is no evidence to demonstrate that at any stage the Respondent undertook a redundancy procedure to terminate the employment of the Complainant. The Complainant also submits that there is any evidence of a written full and final settlement agreement between both parties to mutually agree the termination of employment.

The Complainant did accept that the €10,000 payment to him was a gratuity but the fact that it was subject to tax, meant it only amounted to a payment of €5,988.49 into the Complainant’s bank account.

The Complainant informed the hearing that he had taken up alternative employment in December 2019.

I have considered the matter carefully.

S6(4)(a) of the Act states without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the fairness of the procedures adopted and substantive issues leading to the dismissal.

In this case it is clear that the procedures required to ensure fairness were totally lacking, this is agreed by the Respondent.

The substantive issue leading to the dismissal was the Complainant’s poor performance.  However, no evidence was adduced to support the contention that the Complainant’s performance in the period leading up to his dismissal was poor.

I find this was an unfair dismissal.

In considering the matter of compensation I take into account the ex-gratia payment made by the Respondent to the Complainant on the termination of his employment.  I also take into account the fact that the Complainant mitigated his loss by taking up alternative employment, on better terms, in December 2019.

The complaint is well founded. I award the Complainant the sum of €3,922.47.

Lack of procedures, performance,