ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029590
Parties:
| Complainant | Respondent |
Parties | Julie O'Brien – A Sales Manager | Alan Keating t/a Carlow Fixings Ltd |
Representatives | Self - Represented | Kenneth Buchholtz of Campbell International Human Resource Consultants |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00039551-001 | 02/09/2020 |
Date of Adjudication Hearing: 23/11/2021
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 6 of the Payment of Wages Act, 1991 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.
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.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties.
Full cross examination of Witnesses was allowed.
Due to Covid 19 difficulties the publication of the Adjudication finding was delayed.
Note: This Complaint ADJ 29590 - CA-00039551-001 P o W Act, 1991. is very closely allied to Complaint ADJ 31818 - CA-00042202-001, UD Act,1977
Both complaints were heard together.
Background:
The issue in contention concerns the non-payment of one month’s notice pay to the Complainant. The Complainant stated that as a Senior Manager she had, in her contract of employment, a two-month notice period. She resigned on the 27th of May 2020 and was only paid one months notice. The Complainant was employed as a Sales and Purchasing Manager on an annual salary of €48,300 for a 36-hour week. |
1: Opening Legal Juriistictional issue / Correct Employer not listed.
1:1 Respondent arguments
In opening Legal submissions, the Respondent pointed to the fact that the Employer listed on the Complaint form was “Alan Keating”. Mr. Keating, listed as the Company Secretary, was never Ms. O’Brien’s employer. All legal documentations, pay slips, revenue documents etc all refer to Carlow Fixings Ltd as the employer.
A complaint against Mr. Keating is accordingly mis founded.
1:2 Complainant arguments
The effective day to day employer was always Mr. Alan Keating. In completing the WRC Complaint form CA-00039551 the Complaint had made a very understandable error. Carlow Fixings Ltd are clearly identified as the principal party.
A clerical error in listing Mr. Keating as the Employer, trading as Carlow Fixings Ltd, should not preclude her complaint from being heard.
1:3 Adjudication Decision.
In an issue such as this the Adjudication officer is permitted to change the names of the Parties to rectify an administrative/clerical error. However, this can only be done with the agreement of all Parties.
The Respondent pointed to the WRC Procedural Document – “WRC Procedures in Investigations and Adjudication of Employment and Equality Complaints” where it is stated that
“The Complaint form should be carefully filled out, giving the correct legal name and address of the employer/Respondent – it is vital to check the correct legal name”.
The Respondent, in the Oral Hearing and while giving his Testimony maintained this preliminary legal position.
Accordingly, and in the absence of Legal agreement to change employer names the Adjudication of Complaint CA- 00039551-001 could not be brought to a conclusion due to jurisdictional issues.
The complaint is Legally Not well founded on Employer Name issues.
2: Findings and Conclusions:
On the basis that the proper legal employer is not listed the Complaint has no proper jurisdiction and cannot proceed. |
3: Decision:
CA: 00039551-001
Section 41 of the Workplace Relations Act 2015 and Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of the cited Acts.
The complaint is Not Well Founded on jurisdictional issues – wrong employer is listed.
Dated: 8th March, 2022
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Jurisdictional issues, correct /incorrect employer listed, Payment of Wages Act, 1991 |