ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00027468

Parties:

Complaint:

Date of Adjudication Hearing:  05/10/2020

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act,] following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint;

Issue

Application under 39(4) of the Organisation of Working Time Act 1977, as amended seeking leave to institute proceedings against the new proposed respondent

Background

The complainant had submitted a complaint to the Workplace Relations Commission naming  the company  as the respondent (a).

Misstatement of Respondent Due to Inadvertence

Respondent (a)was named as the Employer in circumstances where the Complainant understood that she was employed by respondent (a) for a number of reasons cited below.

It is submitted on behalf of the Complainant that confusion has arisen in relation to the correct name of the Respondent/Employer due to the following circumstances:

The Complainant's contract of employment from 2005 cited that her position was Assistant Manager with respondent (b) and referred to the fact that she would work exclusively for "Respondent (b) and the respondent (a) neither of which are legal entities registered with the Companies Registration Office.

The most recent formal correspondence received by the Employee from her Employer during the course of her employment was dated the 18th November 2019 and was issued on the headed notepaper of respondent (a) and the CRO registration number of xxxxx pertaining to respondent (a) was cited at the bottom of the headed notepaper.

The Resignation Form issued to the Complainant at the termination of her employment was entitled respondent (a) and noted that the relevant department was respondent (b)

To further add to the confusion, the Complainant was at all times employed at a retail shop in Cork City by the name of respondent (c) and the Complainant considered that the operations of the Store were dealt with by the respondent (a) Group

As such, the Complainant's instructions to her Solicitor were that she was employed by respondent (a).

It is submitted that the proposed Respondent has been fully aware of the instant proceedings from the outset and is aware of the scheduled hearing in relation to the complaint.

Indeed, respondent solicitors, on behalf of their client, have previously consented to an adjournment request on behalf of the Respondent and have furnished submissions in relation to the matter including both submissions regarding the correct Respondent and submissions regarding the substantive case itself. It is notable that no issues of prejudice or injustice have been raised by the Respondent in its submissions regarding the issue of the incorrect Respondent being named and the potential applications in respect of rectifying same.

It is submitted that such engagement, ability to put forward submissions regarding the substantive case and the issue of the incorrect Respondent clearly demonstrates that the proposed Respondent has not been, nor will it be, prejudiced in any way in the event that leave is granted to institute fresh proceedings against the proposed Respondent.

It is further submitted that the proposed Respondent has not been nor, will it be prejudiced or disadvantaged in any way in circumstances where both the proposed Respondent and the current Respondent are part of the same Group and indeed share a registered address. In addition, both respondent (b) and respondent (A) share the same directors, company secretary and 100% of the shares of respondent (b) are owned by respondent (a)

Findings

Respondent advised that Workplace Relations Commission by correspondence dated the 2nd October 2020 that since this was an application to issue new proceedings against the correct employer under Section 39(4) of the Organisation of Working Time Act 1977 they would not be travelling to the hearing and will wait the outcome of the decision

Section 39(4) of the Organisation of Working Time Act, 1997 provides that

"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 —

1. 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
2. b) the said misstatement was due to inadvertence,

then the Employee may apply 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 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 light of the confusion which existed on part of the complainant in relation to the correct employer entity and the proposed new respondent would not suffer an injustice or prejudice if leave was granted, I am making the following

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I grant the complainant’s application for leave to institute proceedings against new respondent (b).

Dated:   March 25th 2021

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

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