Complainant

Respondent

Parties

Ioannis  Kyriakakis

Heco Construction Limited

Representatives

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-00050755-001

23/05/2022

The Complainant stated that he was due to begin work on 21 January 2022 but that his start date was delayed until 27 January 2022 due to a requirement to quarantine. He further alleged that he was underpaid by the company because although he worked 210 hours until his departure on 16 February 2022 he only received €554 which is much less than the €3000 per month that had been agreed.

The Complainant stated that he was due to begin work on 21 January 2022 but that his start date was delayed until 27 January 2022 due to a requirement to quarantine. He also highlighted that he was not paid by the Respondent for the period that he was in quarantine. He further alleged that he was underpaid by the company because although he worked 210 hours until his departure on 16 February 2022, he only received €554, which is much less than what he was entitled to. In addition, he asserted that the payslip he received was wrong because it stated that he was paid €600 and he also alleged that he was working illegally because he was never asked for his papers and was never given a PPS number.

The Respondent stated that the Complainant was never employed by the company and that his employer was in fact their subcontractor Mr Arkadiusz Lukasiak.

CA-00050755-001:

Preliminary Issue:

I note firstly that, following some discussion, the Complainant accepted the Respondent’s assertion that they were not his employer and that the correct Respondent should in fact have been their subcontractor Mr Arkadiusz Lukasiak.

I must decide therefore decide if I can substitute the named Respondent for the correct name of the Complainant’s employer, namely Mr Arkadiusz Lukasiak. The Courts provides useful guidance in considering this decision 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 change the name of the Respondent, I must examine firstly whether Mr Arkadiusz Lukasiak was aware of the nature of the complaints made against him and was given an opportunity to respond.

In making this assessment, I note that the complaint was served on the named Respondent on 23 May 2022 and in an email on 30 June 2022, the WRC was informed that the Complainant had never been employed by them. This email was subsequently forwarded to the Complainant on 20 September 2022 who in reply on 22 September 2022, disputed the Respondent’s assertion and sent documentation which he suggested demonstrated that he had in fact worked for the named Respondent. I was not satisfied however that any of this documentation showed that the named Respondent was in fact the Complainant’s employer which I highlighted to him at the hearing. Following a discussion regarding the matter, the Complainant was unable to produce any further documentation to support his contention and ultimately accepted that the named Respondent was not in fact his employer and that it should have been Mr Arkadiusz Lukasiak.  I find therefore that the correct legal employer was not on notice of the complaint and was not 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 find that, as the Complainant clearly misunderstood who his employer was and that the misstatement did therefore not arise from a technical, clerical or administrative error, it is not possible to make an amendment to the Respondent’s name.

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 left his employment on 16 February 2022, and therefore, the time limit for submitting the complaints against Mr Arkadiusz Lukasiak expired after six months on 15 August 2022. Given that the statutory time frame for the referral of the complaint 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.

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

CA-00050755-001:

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