Complainant

Respondent

Anonymised Parties

A Civil Engineer

A Concrete Manufacturing Company

Representatives

Gerard Carthy Connellan Solicitors

none 

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00034942-001

02/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00034942-002

02/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00034942-003

02/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00034943-001

02/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00034943-002

02/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00034943-003

02/03/2020

The Complainant was employed by the Respondent on the 12th of November 2018 as a civil engineer and she terminated her employment on the 2nd September 2019 giving 2 weeks’ notice. She was paid €475 gross per week. She is claiming that the Respondent breached the National Minimum Wage Act, 2000, the Organisation of Working Time Act, 1997, and the Payment of Wages Act, 1991. The Respondent submitted that the complaints were referred against the wrong employer.

The Complainant notified the Respondent on the 2nd of September 2019 that she was giving 2 weeks’ notice and terminating her employment on the 13th of September 2019.  She referred her complaints against the named Respondent Company KQ Ltd on the 2nd March 2020. 

The Complainant’s solicitor made an application at the start of the hearing to change the name of the Respondent from Company KQ Ltd to Company KP Ltd. He said that the Complainant was employed by Company KP Ltd, but she had mistakenly referred the complaint to the WRC naming Company KQ as her employer. He said he checked the CRO and that both companies share the same registered address and have common Directors and one of the Directors is the company secretary for both companies. The solicitor said that the Respondent is on notice of the application and is fully aware of substance and the background to the complaints. He said that the Respondent was aware of the complaints for 9 months before he raised an issue about the incorrect name a day before the hearing. He said that he wrote to the Director of the Respondent company accepting that the complaint had been referred against the wrong employer due to a clerical error and advising him that he was making the application at the hearing on the 8th December to change the name to the correct employer. The Respondent did not accept it was a clerical error and told the solicitor if he wanted to pursue the correct employer it would be necessary to notify that employer and serve the appropriate proceedings. 

The solicitor submitted that he was not making an application under Section 39 of the Organisation of Working Time Act 1997, but he is seeking to substitute the correct employer for the one named on the referral to the WRC.  I was referred to the WRC case of A Training Specialist v Pharmaceutical Company ADJ-00025115.  He said that in that case there was a similar issue where the Complainant had named the wrong company and the Adjudication Officer consented to the change.

The Respondent did not attend the hearing and is not consenting to the amendment of the name.  The Respondent was notified on the 16th November that the hearing of the case was taking place on the 8th December 2020.  The Director of the company sought an adjournment which was not granted. In response he said that he was not available to attend the hearing on the 8th and he went on to say that that the Complainant was not employed by Company KQ and this company had no case to answer.

The first issue that I must decide relates to the jurisdictional issue raised by the Respondent that the Complainant has impleaded the incorrect legal entity in these proceedings. The Complainant accepts that she named the incorrect Respondent in the referral of the complaints to the WRC and requested the substitution of the named Respondent to the correct name of her employer.  It was submitted that the Complainant is from Brazil and she put the application together in haste without the advice of a solicitor and she made a mistake in relation to her employer’s name. The Complainant’s solicitor submitted that the name should be amended as both companies have common Directors shared offices and one of the Director’s is secretary of both companies.

The Respondent did not attend the hearing and in a letter to the Complainant’s solicitor rejected the reasons for the amendment of the name put forward by the solicitor.

The question then turns to the issue as to whether it is legally permissible for me to accede to the Complainant’s application to substitute the correct Respondent in this case 

Section 39 of the Organisation of Working Time Act 1997 provides for corrections of decisions and initiation of fresh complaints against the correct Respondent provided specific procedures are followed and neither provision apply to the instant case.  There is no statutory mechanism which the Complainant can invoke in the circumstances of this case to facilitate the amendment or substitution of the Respondent’s name as requested. The case law provides useful guidance in considering the application and points to certain matters for consideration when evaluating the application i.e. the informality of tribunals, is the respondent on notice of the proceedings and fully aware of the nature of the complaint, the circumstances of the mistake, time limits.   

It is well established from several recent authorities that statutory tribunals such as the WRC should operate with a minimum degree of informality and should not apply procedures that are more rigid or stringent than the ordinary courts. This proposition is subject, of course, to the overriding principle that statutory tribunals are obliged to ensure adherence to fair procedures in the discharge of their functions.

The High Court In County Louth VEC -v- Equality Tribunal [2009] IEHC 370 outlined the circumstances in which proceedings before a statutory tribunal can be amended and held that: “If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.”

 The Labour Court in Travelodge Management Limited -v- Sylvia Wach EDA1511 stated that: The ratio of that case appears to be that the procedures adopted by statutory tribunals in relation to the amendment of non-statutory forms used in the initiation of claims should not be more stringent than those that apply in the ordinary courts. That is in line with the generally accepted principle that statutory tribunals, such as this Court, should operate with the minimum degree of procedural formality consistent with the requirements of natural justice.

And went on to say

 “It could cogently be argued that in keeping with the decision in County Louth VEC v Equality Tribunal, and by application of the principle of equivalence, the Court should not adopt a more stringent stance in relation to the substitution of parties that is available in the High Court pursuant to that rule.”

In considering whether to accede to the Complainant’s request, I should not be not stringent than the standard that would apply in the ordinary courts. In adopting this approach, I find that I have a degree of flexibility in the way I reach my conclusion on this matter.

The matter I must consider is whether the Respondent was aware of the nature of the complaint and notified of the hearing and given an opportunity to respond.

The complaint was served on the named respondent on the 5th of March 2020 and a notification of the hearing was sent on the 16th ofNovembr2020. In response an adjournment was sought and refused.  In further correspondence the Respondent notified the WRC that the complaint was referred against the wrong employer.   The Complainant’s solicitor then notified the Respondent of the application to change the name to the correct legal employer.   The Respondent did not attend the hearing.

I am satisfied that the Director of the company who employed the Complainant was notified of the nature of the complaint and was on notice of the hearing and given an opportunity to respond.  The Director was also notified by the Complainant’s solicitor that an application to change the name of the employer to the correct legal entity of which he was also a Director would be made at the hearing. Therefore, technically the correct legal entity was not on notice. I find therefore the correct legal employer, Company KP Ltd was not on notice of the complaint and given an opportunity to be heard.

The next question for consideration is whether the misstatement of the Respondents name arise from a technical, clerical or administrative error.

In the Supreme Court judgement in the case of Sandy Lane Hotel Limited v Times Newspapers [2011] 3 IR 334, Mr Justice Hardiman did not accept that the omission of the word “Co” from the company’s name was a clerical error. He said that the plaintiffs were “a consortium of businessmen in the course of a complicated series of arrangements made for tax planning purposes, in which they obviously had the benefit of the best legal and taxation advice.”

Mr Justice Hardiman’s findings include a reference to the case of Re: Maere’s Application [1962] RPC 182 where the term, “clerical error” was described as,

“…a mistake in the course of some mechanical process such as writing or copying as distinct from an error arising, e.g. from the lack of knowledge, or wrong information, in the intellectual process of drafting language to express intention”.

In considering this matter I note that in support of her substantive case the Complainant submitted a substantial number of documents to the WRC including her contract of employment, payslips, timesheets and emails and in all these documents the employer is named as Company KP Ltd. She accepted in evidence she was employed by Company KP Ltd. It is clear therefore that there was no ambiguity about the employer’s name. It is difficult to understand when there was so much information available to the Complainant about her correct employer that more care was not taken in filling out the form.

The nature of the misstatement and the change required is also an important consideration. The EAT in the case of Rahman -v- Munster Joinery UD2377/2011 in allowing an application to have the word “Ire” added to the Respondent’s name stated:

“It might be noted that the Respondent relied on a copy of an EAT determination in the case of UD38/2001 In which the claimant had completed a TIA form naming the HR manager and the hotel in which he worked as his employers which said named Respondents were incorrect. The correct Respondent was in fact a company referred to as C Ltd. The T2 filed states that the wrong employer was named. The Tribunal found that it did not have jurisdiction to hear the claim.

This case can be distinguished from the case of UD 38/2001. The Tribunal was satisfied that there was no inadvertence in relation to the matter. The Claimant in the aforementioned case brought the claim against the wrong entity entirely and in light of the fact that there was no finding of inadvertence, no benefit could be obtained from section 39 of the Organisation of Working Time Act 1997 In the circumstances.

In the present case however the Tribunal has found that there was inadvertence in the misstatement after Respondent’s name. The Respondent’s name was incorrectly cited simply by omitting “Ire” which is entirely different from inappropriately proceeding against two separate legal entities. It is obvious that a mistake has occurred in this case for which the Complainant should not be penalised.”

The facts in UD38/2001 case are similar to the facts of the case herein of in which the Complainant is seeking to substitute one separate legal entity for another separate legal entity as her correct employer. I have applied the jurisprudence of this case and I am of the view that it is not possible to make an amendment to the Respondent’s name as requested.

The next matter I must consider is the statutory time limit for referring a complaint and if the complaint is statute barred. The Labour Court held in the Wach case cited above:

“…it appears to the Court that while there are some apparently divergent decisions on this subject, 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 as against that party. It appears to the Court that even if it had a discretion analogous to that available to the Superior Courts under O.15 r13 of the Rules of the Superior Courts, (and the Court makes no such finding) it would not be appropriate to exercise that discretion in this case.”

The Complainant resigned with effect from the 13th September 2019, and therefore, the time limit for submitting a complaint against Company KP Ltd expired after six months on the 12th March 2020. This complaint was submitted to the WRC on the 2nd of March 2020 and the Complainant’s solicitor applied to amend the name of the Respondent at the hearing on the 8th December 2020.  

I was referred to the WRC case A Training Specialist v Pharmaceutical Co ADJ-00025115 and asked to apply the decision of the Adjudicator to accede to the change of the name. The facts of that case differ from the instant case in that the statutory 6 months for referring complaints to the WRC had not expired and it was for this reason the Adjudicator allowed the amendment of the Respondents name to the correct legal title.

In this case the statutory time frame for has expired.

In applying the jurisprudence of the Labour Court in the Wach case above, I find that I cannot substitute the name of the Complainant’s former employer for the name of the Respondent, where the time limit for submitting a complaint against the correct legal entity has expired.

I find that I cannot substitute the name of one legal entity for the name of another legal entity and furthermore the application to amend the name of the Respondent was made outside the statutory time frame for referring a complaint. Therefore, I find that I have no jurisdiction to inquire into these complaints because they have been submitted against the incorrect named Respondent.

Wrong Respondent named, Application by Complainant to change the name, complaint outside the statutory time limit