ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030225
Parties:
| Complainant | Respondent |
Parties | Victor Garcia Nieto | Arvato Finance Services Limited |
Representatives | Self | Jason Murray BL instructed by Crowley Millar Solicitors LLP |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00040407-001 | 14/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00040407-002 | 14/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00040407-003 | 14/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00040407-004 | 14/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998 | CA-00040407-006 | 14/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00040407-007 | 14/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00040407-008 | 14/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00040407-009 | 14/10/2020 |
Date of Adjudication Hearing: 14/03/2022
Workplace Relations Commission Adjudication Officer: Marie Flynn
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 79 of the Employment Equality Acts, 1998 - 2015 and Section 25 of the Equal Status Act, 2000 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359 of 2020, which designates the WRC as a body empowered to hold remote hearings.
At the hearing the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases decisions are no longer anonymised. The parties are named in the heading of the decision. For ease of reference, the generic terms of Complainant and Respondent are used throughout the text.
The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All participants who gave evidence were sworn in.
Background:
The Complainant has submitted a number of complaints against the Respondent under various statutes. The Respondent contends that the Complainant has named the incorrect respondent in his WRC complaint referral form and that most of the Complainant’s complaints are out of time. |
Preliminary Issue: Incorrect Respondent
Summary of Respondent’s Case:
The Respondent submits that the Complainant has named the incorrect respondent in his complaint referral form. The Respondent submits that the Complainant commenced employment with Arvato Finance Limited on 27 August 2012. In or around February 2019, the Bertelsmann and Saham Groups merged creating a new legal entity, Majorel Ireland Limited. As and from February 2019, the Complainant ceased to be employed by Arvato Finance Limited and was employed by Majorel Ireland Limited. The Respondent submits that the Complainant was on express notice of the change of his employer and that there was no ambiguity as to the identity of the Complainant’s employer. The Respondent submits that the Complainant received a letter dated 14 February 2020 from Human Resources relating to a redeployment and within that letter the identity of his employer was clearly stated: “We would like to wish you continued success in your career with Majorel Ireland Limited.” The Respondent further submits that it is clear from the following extract from the Complainant’s resignation letter of 3 March 2020 that he was aware of the identity of his employer: “For that, I will ask you to please accept this email as my formal resignation to the T&S role with Majorel. My last enrolled day with Majorel would be March 31st, four weeks from now.” The Respondent submits that Majorel Ireland Limited was the Complainant’s employer at the relevant time and that the Complainant has named the incorrect respondent on his complaint referral form. The Respondent contends, therefore, that the WRC lacks jurisdiction to investigate complaints against Arvato Financial Services Limited, the employer named on the complaint referral form. The Respondent cites the following precedents in support of its position: the High Court judgment in O’Higgins v UCD and the Labour Court [2013] IEHC 431 and the Labour Court determination in Travelodge Management Limited v Sylwia Wach EDA1511. |
Summary of Complainant’s Case:
The Complainant submits that he was unfamiliar with the WRC adjudication process and that he named Averto Finance Services Limited as his employer as that is the employer named on his contract of employment. At the adjudication hearing, the Complainant confirmed that he was aware that his employer had changed to Majorel in February 2019. |
Findings and Conclusions:
The first preliminary matter for me to decide is if the Complainant has named the correct respondent in his WRC complaint referral form. If I find that he has, then I will consider the second preliminary issue in relation to time limits which was raised by the Respondent. If, however, I find that the Complainant has not named the correct respondent in this complaint referral form, then I do not have jurisdiction to investigate his complaints. I note in the cover letter which the Complainant included with his complaint referral form, that the Complainant wrote as follows: “Majorel Ireland Limited is an outsourcing business, previously called Arvato Finance Limited (the rebranding happened in Jan 2019 when the outsourcing part of the company was bought by the Saham Group and incorporated to Majorel).” I also note that, in his resignation email dated 3 March 2020, the Complainant asked the Respondent to “please accept this email as my formal resignation to the T&S TL role with Majorel. My last enrolled day with Majorel would be March 31st, four weeks from now.” I further note that at the adjudication hearing, the Complainant confirmed that Majorel was his employer since February 2019. I note the email dated 18 February 2019, submitted in evidence by the Respondent, which was addressed to all employees of Arvato to inform them that its new name “Majorel” would be officially launched on the following day, 19 February 2019. The email opened with the phrase “First of all, we’d like to welcome you to Majorel!” I further note that the Legal Directors wrote to all employees to inform them that “an important legal change has taken place for our Dublin location. Effective 27th of May 2019 our Company’s name has changed from Arvato Finance Services Limited to Majorel Ireland Limited.” The Respondent submitted a copy of an addendum to the Complainant’s contract which was issued on 14 February 2020 and reads as follows: “The letter is to confirm your transfer to the position of Team Lead on the AWX team, effective 02/03/2020. All other terms and conditions remain unchanged. We would like to wish you continued success in your career with Majorel Ireland Limited.” The Complainant did not dispute that he had received the above communications. In addition, the Respondent submitted copies of a representative sample of the Complainant’s payslips at the hearing. The payslips from March 2019 onwards name the Complainant’s employer as Majorel. Based on the totality of the evidence adduced, I am satisfied that that the Complainant was fully aware of the identity of his employer at the material time. I find, therefore, that the Complainant has named the incorrect respondent in his employment complaints to the WRC. The Complainant has also submitted a complaint under the Equal Status Acts. At the hearing the Complainant was unable to substantiate this complaint. |
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.
CA-00040407-001 – Complaint under section 6 of the Payment of Wages Act, 1991 I find that the Complainant has named the incorrect respondent in his complaint to the WRC and, therefore, I do not have the jurisdiction to investigate this complaint. CA-00040407-002 – Complaint under section 7 of the Terms of Employment (Information) Act 1994 I find that the Complainant has named the incorrect respondent in his complaint to the WRC and, therefore, I do not have the jurisdiction to investigate this complaint. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00040407-003 – Complaint under section 8 of the Unfair Dismissals Act, 1977 I find that the Complainant has named the incorrect respondent in his complaint to the WRC and, therefore, I do not have the jurisdiction to investigate this complaint. CA-00040407-004 – Complaint under section 8 of the Unfair Dismissals Act, 1977 I find that the Complainant has named the incorrect respondent in his complaint to the WRC and, therefore, I do not have the jurisdiction to investigate this complaint. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00040407-006 – Complaint under section 86 of the Employment Equality Act, 1998 I find that the Complainant has named the incorrect respondent in his complaint to the WRC and, therefore, I do not have the jurisdiction to investigate this complaint. |
Decision:
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
CA-00040407-007 – Complaint under section 21 of the Equal Status Act, 2000 I find that this complaint is not well founded. |
Decision:
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
CA-00040407-008 – Complaint under section 39 of the Redundancy Payments Act, 1967 I find that the Complainant has named the incorrect respondent in his complaint to the WRC and, therefore, I do not have the jurisdiction to investigate this complaint. CA-00040407-009 – Complaint under section 39 of the Redundancy Payments Act, 1967 I find that the Complainant has named the incorrect respondent in his complaint to the WRC and, therefore, I do not have the jurisdiction to investigate this complaint. |
Dated: 24-03-22
Workplace Relations Commission Adjudication Officer: Marie Flynn
Key Words:
Incorrect respondent |