ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00033179

Parties:

Complaint(s):

Date of Adjudication Hearing:  05/07/2022

Workplace Relations Commission Adjudication Officer:  Roger McGrath

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,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.

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, that 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.

Background:

Preliminary Issue; Name of Respondent

The Respondent submitted that the Complaint Form bore an incorrect name for the Respondent and therefore no valid claim has been made.

In her Complaint Form the Complainant filled an individual’s name as the name of the Respondent.  It became clear at the hearing that this was incorrect and that the correct name of the Respondent entity is St. John of God Community Mental Health Services Cluain Mhuire.

Section 39 of the Organisation of Working Time Act 1997 provides that the name of the Respondent on a complaint referral form can be amended in the following circumstances:

(1) In this section “relevant authority” means a rights commissioner, the Employment Appeals Tribunal or the Labour Court.

(2) A decision (by whatever name called) of a relevant authority under this Act or an enactment or statutory instrument referred to in the Table to this subsection that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by any party concerned, be amended by the authority so as to state correctly the name of the employer concerned or the other material particular.

(3) The power of a relevant authority under subsection (2) shall not be exercised if it would result in a person who was not given an opportunity to be heard in the proceedings on foot of which the decision concerned was given becoming the subject of any requirement or direction contained in the decision.

(4) 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—

( 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

( b) the said misstatement was due to inadvertence,

then the employee may apply to 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 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 making my decision I am guided by the majority determination of the Employment Appeals Tribunal in Jeevanhan Al Tambraga v Orna Morrissey and Killarney Avenue Hotel (UD36/2011) where the Tribunal considered its powers under Section 39 of the Organisation of Working Time Act 1997 and reached the following conclusion:

“The majority acknowledge that s.39 of the Organisation of Working Time Act 1997 gives certain scope to the Tribunal to allow for an application to be made to the Tribunal for amendment of the name of the employer. Such power is qualified quite significantly in s.39(4)(b) of such section noting that there must be inadvertence on the part of the relying party, to justify the making of an amendment. The word inadvertence is the qualifier in these circumstances, meaning an accident or oversight.”

It is therefore clear that in order for an Adjudication Officer to grant leave to the Complainant to change the name of the Respondent, it must be established, firstly, that there has been inadvertence on the part of the Complainant in terms of the failure to identify the correct Respondent when the proceedings were instituted, and secondly, that such leave to amend the name of the Respondent should not result in an injustice being done to the proposed Respondent.

In considering this issue, it is clear from that an error was made by the Complainant in selecting the individual name she included in the Complaint Form.

I accept that in seeking to record the legal name of the Respondent employer on this form that the Complainant through inadvertence failed to cite the precise legal name of this entity. I am satisfied that the actual employer was fully aware at all material times of the herein proceedings.

I am also satisfied that the granting of leave to amend the name of the Respondent does not result in an injustice or prejudice to the proposed Respondent. The correct Respondent attended the adjudication hearing, they had prepared a submission for the hearing, they took full part in the proceedings, and they were represented at the hearing by an external HR Consultant.

Having regard to the foregoing, I am satisfied that it would be an injustice not to allow the Complainant to proceed with this claim in all the circumstances. Therefore, I find that the misstatement of the Respondent’s name on the complaint referral form was due to inadvertence on behalf of the Complainant. Accordingly, I am prepared to accede to the Complainant’s application to amend the name of the employer pursuant to the provisions of Section 39(4) of the Organisation of Working Time Act 1997.

CA-00043950-002 Complaint under the Employment Equality Act, 1998

At the outset of the Hearing, CA-00043950-002 Complaint under the Employment Equality Act, 1998 was withdrawn by the complainant.

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.

Dated:   20th October 2022

Workplace Relations Commission Adjudication Officer:  Roger McGrath

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