ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00044486

Parties:

	Complainant	Respondent
Parties	Desmond O sullivan	Shanside Transport Ltd

	Complainant	Respondent
Anonymised Parties	{text}	{text}

Representatives

Complaint(s):

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-00055087-001	14/02/2023

Date of Adjudication Hearing: 04/07/2023

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 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.

The matter was heard by way of remote hearing on 4 July 2023, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.

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:

In his complaint form to the WRC, received on 14 February 2023, the Complainant stated that he commenced employment with the Respondent on 31 August 2018 and that his employment with the Respondent ended on 6 September 2022. He stated that his gross weekly pay was €1,291.

Preliminary Issue 1

At the outset of the hearing, it was drawn to my attention that an incorrect name for the Respondent entity had been used by the Complainant in his complainant form.

Having considered the submissions of both parties and the evidence adduced at the hearing of this complaint, I find that Shanside Transport Ltd. is the correct legal name of the Respondent.

I must now decide whether the Respondent named on the complaint form can be changed to the Respondent’s correct legal name.

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.

I am satisfied that the complaint form submitted by the Complainant contained a variation of the name of the company that he said employed him. 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 Respondent was fully aware at all material times of the herein proceedings. The Respondent had no objection to this change being made.

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 for the hearing and they took full part in the proceedings.

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 Respondent pursuant to the provisions of Section 39(4) of the Organisation of Working Time Act 1997.

Preliminary Issue 2

The Respondent raised a preliminary point that the Complainant was not nor had he ever been an employee of the Respondent.

Summary of Respondent’s Case in relation to Preliminary Issue 2:

The Respondent submits that the Complainant was never employed by them but was a self-employed person; he was not integrated within the business; he was an independent contractor who provided services to the Respondent and on occasion substituted someone else to do the work on his behalf. The Complainant submitted invoices to the Respondent on a weekly basis for the services he provided. As he was not employed by the Respondent he could not have been dismissed by the Respondent.

The Respondent accepted that the Complainant had done work for a company which they took over in 2019, but he was not one of approximately 10 employees who transferred over when the TUPE of the business took place.

The Respondent submits a list of things which they say proves the Complainant to be self-employed:

· He was responsible for looking after his own tax affairs.

· He submitted an invoice every week for his services, including VAT.

· He was never paid anything for annual leave.

· He was never paid sick-pay.

· He bore the risk of making a profit or loss.

· Within some parameters he could choose his own hours of work.

· He provided his own equipment, or example his van. He was responsible for his van’s insurance, fuel costs and maintenance. He had sole use of his van.

The Respondent provided documentation to support their view that the Complainant was not an employee.

Summary of Complainant’s Case in relation to Preliminary Issue 2:

The Complainant submits that he worked for a company which previously held the franchise for the work the Respondent does now. The Respondent took over the franchise in 2019. He says that he has worked continuously between the two franchises for the years 2018-2022. The Complainant stated that he was a contract worker; he turned up he got paid.

When questioned the Complainant agreed that he could not disagree with anything in the list put forward by the Respondent.

Findings and Conclusions in relation to Preliminary Issue 2:

I have reviewed the evidence presented at the hearing and considered the documentation furnished by the parties. I have also taken account of the Complainant’s acknowledgment that he was de facto engaged on a contract for service. In all of the circumstances, I find the Complainant was engaged on a contract for service and consequently I have no jurisdiction to investigate the 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.

I do not have jurisdiction to investigate this complaint.

Dated: 11/9/2023

Workplace Relations Commission Adjudication Officer: Roger McGrath

Key Words:

Employee status