ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00027979
Parties:
| Complainant | Respondent |
Anonymised Parties | A Nurse | A Nursing Home |
Representatives | Self | Mairead McKenna BL instructed by O'Loghlin Hughes Solicitors |
Disputes:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00035621-001 | 08/04/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00035622-001 | 08/04/2020 |
Date of Adjudication Hearing: 01/03/2021 by remote hearing
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Procedure:
In accordance with Section 13 of the Industrial Relations Acts1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
Background:
The worker commenced working in the nursing home in September 2019. The Worker was employed as a Registered nurse. Her contract of employment referred a probationary period of nine months. That period would have ended in May 2020. The worker received four weeks’ notice of the termination of her contract and payment in lieu of notice. Her contract of employment ended on 28 February 2020. On the Complaint Referral Form which was submitted to the WRC in relation to this matter, the worker identified the trading name of the nursing home as the employer. At the commencement of the hearing, the legal representatives of the workers employer (a limited company) raised a preliminary matter. It submitted that the worker had named the incorrect entity as her employer. It explained that there was no legal entity known as the named employer. The name listed was a trading name and as such the referral was invalid. The employer applied for the case to be struck out. |
Summary of Worker’s Case:
The worker filed her own complaint with the WRC and represented herself at the hearing. She confirmed that she had engaged with Citizens information and a solicitor prior to filing her complaint. She submitted that the name she listed as her employer was correct. She provided documentation in this regard. CA-00035621-001 This referral was withdrawn at the hearing. It was a duplication of the referral listed below. CA-00035622-001 The Worker explained that on the 28 January 2020 she was called to a meeting with the Person in Charge of the nursing home. She was advised of her immediate dismissal. The reason for her dismissal was unclear to her at the time. She was given conflicting reasons for it. She did not receive any written documentation from her employer regarding her dismissal at the time. Later she received information regarding a complaint made against her by the family of a resident. The worker disputed the complaint made against her and submitted a detailed submission in this regard as to her care of the resident and clinical judgement. |
Summary of Employer’s Case:
The representatives for the nursing home provided a contract of employment with the worker and several payslips to me. The contract of employment was dated 5 August 2019 and referred to a name which was not the Employer listed in the WRC complaint referral form. Of the payslips submitted, most of them referred to the employer listed in the complaint referral form. These payslips were dated September to December 2019. The payslips for 2020 which was a fortnightly payroll (Thesaurus 2020 payroll software) referred to the name of the employer as set out in the contract of employment dated 5 August 2019. The representatives for the nursing home relied on these documents as evidence that the referral of this dispute to the WRC was flawed in that it did not refer to the worker’s employer. They submitted that I did not have power to make a recommendation. While they participated in the hearing, they were not acquiescing to the process. |
Findings and Conclusions:
The first issue that I must decide is whether the worker has named the correct employer in these proceedings. Based on the contract of employment and final payslips given to the worker (which predate the lodging of her referral of this dispute to the WRC) I am satisfied that the worker has incorrectly named the trading name of the business rather than the owner of the business (a limited liability company) as her employer. I find that there was not an employer/employee relationship between the worker and the named employer on the complaint form. Accordingly, I find that I do not have any jurisdiction to enquire into the dispute under the Industrial Relations Act against the trading name of the nursing home. Section 39(4) of the Organisation of Working Time Act 1997 does not apply to Industrial relations disputes as this Act is not listed in the Table to that Section. |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
CA-00035621-001 This referral was withdrawn at the hearing. It was a duplication of the referral listed below. CA-00035622-001 I am unable to accept the worker's case and I make no recommendation. |
Dated: 21st of June 2021
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Key Words:
Incorrect name of employer |