FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : MOANNE CHOW T/A ORCHID RESTAURANT (REPRESENTED BY PENINSULA GROUP) - AND - STEPHEN NG (REPRESENTED BY GERARD LAMBE SOLICITORS) DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(S)ADJ-00021634 -CA-00028111-010 This Determination deals solely with the matter of jurisdiction. Summary of Complainant arguments. The Complainant commenced work as a senior waiter in January 2016. He was interviewed and employed by Ms. Chow, who was his employer at all times. The Complainant never received a contract of employment or any formal/written terms and conditions. He never received any pay details. He was paid €360 per week plus tips and was required to work in excess of 48 hours per week, with no distinction between public holidays and normal work days. He was rostered to work each Sunday, Tuesday, Wednesday, Thursday and Friday morning. The Complainant was summarily dismissed on 8 February 2019. He did not receive a P45 or P60. The Complainant lodged complaints with the WRC under a number of Acts against the Respondent, who responded on 29 May 2019, from which response it is clear that she accepted she was the Complainant’s employer. On 2 September 2019 , just two days before the scheduled date for the WRC hearing on 4 September 2019, the Respondent, identifying herself as Mui Lai Chow, stated that she was an employee of the restaurant. At the WRC hearing, the Respondent contended that she was an employee and that the correct employer was a company called MCF Catering Ltd. She presented various items of documentation in support of this assertion, including information to show the incorporation of MCF catering Ltd on 14 May 2018, more than two years and four months after commencement of the Complainant’s employment. The Complainant never had any dealings with any such company. The Respondent claimed that the previous employer was a company called ‘The Chows Orchid Limited’. Again, the Complainant never had any dealings with this company, which was only incorporated on 7 October 2016, some 9 months after commencement of the Complainant’s employment. The Complainant was employed at all times by the Respondent. Examination of the CRO register demonstrates numerous registrations for the restaurant. One shows the registration of MCF Catering Ltd on 18 September 2018. Another shows registration on 19 October 2015 showing the owner’s name as Mui Lai Chow and including an address for her. Any employee is entitled to rely on the provisions of the Terms of Employment,(Information) Acts 1994 to 2014, further strengthened by the Employment (Miscellaneous Provisions) Act 2018 and to be furnished with basic information to include the name and address of their employer, method of calculating their pay, the number of hours that the employee is expected to work per normal working day/week. It is unacceptable that a letter would be sent two days before a hearing to contradict previous acceptance of the complaints, to suggest that the Respondent is not the employer. It is completely unfair that the Complainant should be put in the position of ‘private detective’ in order to ascertain who is his employer when he had a clear employment relationship with the Respondent and this was the only employment relationship. He has named the correct Respondent. He was never employed by either of the companies mentioned, neither of whom existed when the Complainant was first engaged by the Respondent. The pay slips and P60 produced by the Respondent were never seen by him prior to proceedings. The payments and references to hours worked bear no relationship to the reality of the Complainant’s working experience in the restaurant. The Complainant was never given to understand that he was employed by anybody other than the Respondent. A case has been lodged with the WRC, on a ‘without prejudice’ and protectionist basis, against MCF Catering Ltd., in respect of which a preliminary issue on time extension falls to be considered. That complaint will not be processed until after the Court issues its Determination in the instant case. Summary of Respondent arguments. The Respondent’s representative confirmed that Mui Lai Chow is Ms. Moanne Chow. Ms. Chow works part-time as a manager in the restaurant concerned. She has never been an owner. MCF Catering Ltd has been the owner of the restaurant since 14 May 2018 and was the Complainant’s employer. The Complainant has named the wrong employer. The Respondent was the Complainant’s manager at all material times and never had any contractual relationship with the Complainant. The registration of a business name is not proof that the Respondent owned the business. A P60 in the name of the Complainant for 2018, pay slips for the Complainant since MCF Catering Ltd took over the business and a redacted P35 all show that MCF Catering Ltd. was the Complainant’s employer. The Respondent was not the employer. The AO decided that the WRC did not have jurisdiction to hear the complaint as the wrong employer had been named. There Respondent’s representative queried whether that is a Decision capable of appeal to the Court, within the meaning of the Act. Deliberation. The last issue raised by the Respondent can be dealt with first. The Court is satisfied that the finding of the AO is, without doubt, a ‘Decision’ within the meaning of the Act and that the appeal of that Decision is properly before it. The Court is most disturbed to find itself in the very unsatisfactory position that the Complainant is left in something of a limbo, allegedly by virtue of the claimed failure of his former employer to meet the most basic information requirements of employment law with respect to his employment and that this alleged very failure, itself, requires the Court to have to engage in what the Complainant’s representative described with some accuracy as ‘private detective’ work to ascertain who exactly was the employer? The very absence of written confirmation of an employment relationship being produced to the Court is a problem in getting to the heart of determining who the employer might be. The Court notes the irony that the absence of documentation required by law creates a difficulty for the Court in examining complaints regarding alleged breaches of employment law. On the other hand, if, as the Respondent maintains, she was no more than an employee of the company then, obviously, it would be entirely unfair and inappropriate in law for her to have to take on responsibilities as an individual to defend against alleged breaches of the Complainant’s legal rights. The only concrete evidence that the Complainant can produce, apart from his belief based on his employment experience, that the Respondent was his employer, is evidence that the restaurant’s name was registered to the ownership of the Respondent. As against that, the Respondent has produced a P60, a P35 and pay slips, all of which show MCF Catering Ltd as the employer. Given how little that the Court has to go on, and noting that the Complainant denies knowledge of this documentation, the Court is left with the dilemma of deciding if the documentation from the Respondent can or should be ignored. On balance, and not without some reservation, the Court feels that it has to accept that the balance of documentary evidence favours the Respondent’s argument that she was not the employer. The Court notes that the Complainant’s representative has taken the precautionary step of lodging proceedings with the WRC against MCF Catering Limited and that processing of those complaints is dependent upon the Court’s determination of the matter before it in the instant case. The Court cannot comment on the likely success or otherwise of those proceedings or with regard to the preliminary matter of a time extension, that the Court was advised was the subject of an application to the WRC. Nothing in this Determination should be read as offering a view in respect of the matters that are the subject of those separate complaints against a company which is not party to the proceedings in the instant case. Determination. The Decision of the Adjudication Officer that the WRC lacked jurisdiction to hear this complaint is upheld.
NOTE Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary. |
