Complainant

Respondent

Parties

Elizabeth  Egan

Melcorpo Group

Representatives

Paul Egan

Conor Cahill Sheehan & Company Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00033699-001

30/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00033699-002

30/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00033699-003

30/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00033699-004

30/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00033699-005

30/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00033699-006

30/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00033699-007

30/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00033699-008

30/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00033699-009

30/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00033699-010

30/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00033699-011

30/12/2019

The Complainant was initially employed by Diamond Cinema Limited in Navan in January 1999 and was promoted to Manager in 2004. The Cinema was acquired by the Respondent on 1 September 2017 and the Complainant’s employment transferred in accordance with the TUPE Regulations.

The Complainant alleged that her terms and conditions of employment deteriorated after the transfer and that she was left with no alternative but to terminate her employment. She also alleged that the Respondent was in breach of the TUPE Regulations.

The Complainant stated in her evidence that prior to the transfer she had overall responsibility for all aspects of running the cinema and was the only full-time employee. She further stated that this was reduced to four days in lieu of a pay increase but that she was available to take calls at home as and when required. She also highlighted that she worked from a laptop computer at home which was linked to the company network.

Further to the acquisition, she stated that the Respondent decided to increase the number of screenings on offer which caused difficulties for staff who had to work extra hours. The requirement for additional staff hours was highlighted to her at a meeting with the new management in October 2017 when she was also informed that she would only have to work on site and not from home. The Complainant stated that she felt very uncomfortable with these proposed changes and also alleged that many of her other duties and responsibilities, such as recruitment, the management of stock and procurement, advertising and marketing, were being undermined and removed from her. She further alleged that she was telephoned while on holidays about the heating and cinema projectors. The Complainant stated that she sought to address the issues she had with the Respondent further to which she was issued with a draft contract of employment in December 2017, which she had difficulties with and did not sign. She said that as the outstanding issues were not resolved, she suffered considerable stress which resulted in her going on sick leave on 22 January 2018.

Mr Gordon Reid, whose role was to organise the IT for the cinema, also gave evidence on behalf of the Complainant. He stated that she did “everything” in the cinema and appeared to be a lot more stressed after the transfer. Specifically, Mr Reid stated that the Complainant confided in him that she was being undermined and was very upset by this.

The Respondent stated that they fully adhered to the terms and conditions of the Complainant’s employment with her previous employer. As there was no physical copy of her contract of employment on file when they acquired the business however, a new draft contract was issued to her and read out to her by the Regional Manager which she failed to sign. The terms and conditions in this contract were based on information that the Respondent had received from the previous owner and there was no understanding that the Complainant could work from home.

The Respondent stated that at a meeting with the Complainant in October 2017, they indicated that they wished to increase the number of screenings. The Complainant agreed that she would consider this, that she would discuss it with other staff members before reverting to see if they wished to increase their hours. The Complainant also raised the issue of heating in the cinema.

The Respondent also stated that when they took over the business, they intended to completely revamp it, including a total refurbishment of the cinema and standardisation of its business product and that a number of changes to the operating model would have to be made as a result. It was also asserted that they wanted to delay the change in the announcement of the new ownership until the refurbishment had been completed.

The Respondent stated that the first time an issue around the alleged changes to the Complainant’s conditions of employment arose was in December 2017 when they were notified of same in a letter from SIPTU. Despite the Respondent having followed up this letter with the Complainant directly, no response was received from her. When another letter from SIPTU was subsequently received, a response was also sought seeking details of the alleged complaints and clarity on what changes were made to her terms and conditions of employment but once again no response was received.

The Respondent stated that the Complainant had also enquired about being made redundant but that there was no question of redundancy as the Respondent needed a manager. The Respondent also noted that she had put money into the cinema in previous years prior to the transfer but believed that if the Complainant was aggrieved, the grievance should have been with the previous owner who had the business at that time. It was also asserted by the Respondent that the Complainant’s purported letter of resignation was contingent on her receiving financial compensation.

In summary, the Respondent stated that they were satisfied no material changes were made to the Complainant’s contract of employment following their acquisition of the business and that the Complainant was treated fairly.

CA-00033699-001 and CA-00033699-002:

Preliminary Issue:

I note firstly that there is no legal entity called Melcorpo Group, the Respondent on the complaint form, and in the absence of same, I must examine if it is legally permissible for me to accede to the Complainant’s application to substitute the named Respondent for that of her employer, namely Melcorpo Commercial Properties Unlimited Company.

The Courts provides useful guidance in considering the application and have stated 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 such 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 must examine if she should have known the name of her Employer. In making this decision, I note firstly that when the Complainant previously referred a complaint to the WRC, ADJ 13212, which was subsequently referred to the Labour Court on appeal, TUD191, she was aware that her employer was Melcorpo Commercial Properties Unlimited Company and not the Respondent

The next question for consideration is whether the misstatement of the Respondent’s name arose 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 it was apparent from the Revenue documentation dated 23 September 2019, furnished to me by her representative, that her employer at the time of the notification of her resignation on 29 August 2019 was Melcorpo Commercial Properties Unlimited Company. While Mr Egan stated that he named the Respondent as the employer because the Group’s organisational structure was so complicated, it was abundantly clear from the aforementioned Revenue documentation that she was employed by Melcorpo Commercial Properties Unlimited Company at the time of her resignation and there was no suggestion that the name of her employer changed after the Revenue documentation was issued on 23 September 2019.

I also have regard to UD38/2001 where the Complainant also sought to substitute one legal entity for another separate legal entity as his correct employer and the Employment Appeals Tribunal was satisfied that there was no inadvertence in relation to the matter. In line with that decision, I am also of the view that it is not possible to make an amendment to the Respondent’s name as requested, especially seeing as there is no legal entity called Melcorpo Group, the name of the Respondent in the instant dispute, which a simple check of the CRO would have verified.

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’s employment terminated on 14 October 2019, and therefore, the time limit for submitting the complaints against Melcorpo Commercial Properties Unlimited Company expired after six months on 13 April 2020. These complaints were submitted to the WRC on 30 December 2019 and the Complainant’s representative applied to amend the name of the Respondent at the hearing on 15 November 2022.  The statutory time frame for the referral of the complaints has therefore expired and in applying the findings of the Labour Court in the Wach case above, I cannot substitute the name of the Complainant’s former employer for the name of the Respondent, where the time limit for submitting complaints against the correct legal entity has expired.

In light of all of the foregoing, I find that I do not have jurisdiction to hear the complaints against the named Respondent.

CA-00033699-001 to CA-00033699-011 (inclusive):

I find that I do not have jurisdiction to hear these complaints against the named Respondent for the reasons set out above