Complainant

Respondent

Parties

William  Mckeever

Pfp Ireland High Performance Systems Limited

Representatives

Mark O’Connell BL instructed by Dalippe Lalloo Lalloo 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-00049222-001

16/03/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00049222-002

16/03/2022

The Complainant stated on his complaint form that he started his employment as a Fire Proofer with the Respondent on 20 January 2020 and was paid €700 per week. He stated that he was unfairly dismissed from his employment on 16 December 2021. He also alleged that he did not receive a written statement of his terms and conditions of employment.

The Complainant stated on his complaint form that he started his employment as a Fire Proofer with the Respondent on 20 January 2020 and was paid €700 per week. He also alleged that he was summarily dismissed from his employment on 16 December 2021 and was not given any reason behind his termination. He also stated that he did not receive a written statement of his terms and conditions of employment.

The Respondent did not attend the hearing on the day to give evidence. Correspondence was sent in advance of the hearing stating that the Complainant was not employed by the Company.

CA-00049222-001 and CA-00049222-002:

Preliminary Issue:

The first issue I must decide upon is a request by the Complainant’s representative to substitute the named Respondent to the correct name of the Complainant’s employer.  Specifically, the Complainant’s representative stated that the employer was PF Fire Systems Ireland Limited and not PF Ireland High Performance Systems Limited as stated on the complaint form.

I must examine therefore if it is legally permissible for me to accede to the Complainant’s application to substitute the named Respondent in this case for that of his employer, namely PF Fire Systems Ireland Limited.

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 firstly whether the Respondent was aware of the nature of the complaints made against it and was given an opportunity to respond.

In making this assessment, I note that the complaints were served on the named Respondent on 14 April 2022 and in an email from the named Respondent on 19 April 2022, the WRC was informed that the Complainant had never been employed by the Company. This email was subsequently forwarded to the Complainant’s legal representative on 11 May 2022 but does not appear to have been acted upon.

A notification of the hearing was then sent to the Respondent on 20 September 2022 and a further email was sent both to the WRC and the Complainant’s representative on 26 October 2022 stating that the Complainant had “never workedfor this Company”. In reply on 26 October, the Complainant’s representative disputed this assertion and attached documentation from the Revenue Commissioners which she stated contradicted the Respondent’s assertion that he had never worked for the Company.

Crucially however, this documentation from the Revenue Commissioners did not suggest that the Complainant worked for the Respondent but that he worked for PF Fire Systems Ireland Limited and there was no indication made to the Respondent either in the correspondence from the Complainant’s legal representatives of 26 October, or subsequently, that an application to change the name of the employer to the correct legal entity would be made at the hearing. I find therefore that the correct legal employer as alleged by the Complainant, namely PF Fire Systems Ireland Limited, 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 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 the Complainant was legally advised from the outset and that it was clear from the Revenue documentation furnished to me by his representative that his employer was PF Fire Systems Ireland Limited and not the Respondent. I am at a loss to understand therefore why more care was not taken in filling out the form and no explanation for the failure to do so was presented at the hearing. 

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.

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 was dismissed with effect from 16 December 2021, and therefore, the time limit for submitting the complaints against PF Fire Systems Ireland Limited expired after six months on 15 June 2022. These complaints were submitted to the WRC on 16 March 2022 and the Complainant’s solicitor applied to amend the name of the Respondent at the hearing on the 2 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-00049222-001:

I find that I do not have jurisdiction to hear this complaint against the named Respondent for the reasons set out above.

CA-00049222-002:

I find that I do not have jurisdiction to hear this complaint against the named Respondent for the reasons set out above.