ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00046013
Parties:
| Complainant | Respondent |
Parties | Janet Moloney | Mary Sheppard |
| Complainant | Respondent |
Anonymised Parties | {text} | {text} |
Representatives | Self-Represented | Anne Fitzpatrick of Anne M. Fitzpatrick & Co Solicitors |
Complaint(s):
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-00040404-001 | 14/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994 | CA-00040404-002 | 14/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00040404-003 | 14/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act 1977 | CA-00040404-004 | 14/10/2020 |
Date of Adjudication Hearing: 11/04/2024
Workplace Relations Commission Adjudication Officer: Christina Ryan
Procedure:
In accordance with Section 41 of the Workplace Relations Act 2015 and/or Section 8 of the Unfair Dismissals Acts 1977 (as amended) following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
This matter was heard by way of a remote hearing on the 11th April 2024 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.
At the adjudication hearing the parties were advised that in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021 hearings before the WRC are now held in public and, in most cases decisions are not anonymised. Neither party objected to the hearing being held in public and having their names listed in the decision when published on the WRC website.
The parties are named in the heading of the decision. For ease of reference, for the remainder of the document I will refer to Janet Moloney as the “the Complainant” and Mary Sheppard as “the Respondent”.
The parties were advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All participants gave evidence on affirmation.
I allowed the right to test the oral evidence presented by way of cross-examination.
The parties’ respective positions are summarised hereunder followed by my findings and conclusions and decision. I received and reviewed documentation from the Complainant prior to the hearing. All evidence and supporting documentation presented by the parties has been taken into consideration.
At the outset of the hearing the Respondent raised a preliminary issue as to jurisdiction on the basis that the Complainant failed to name the correct Respondent. The Complainant did not make an application to substitute the named Respondent in this case for that of her employer, namely Eyesight Opticians Limited.
The parties were afforded an opportunity to set out their position regarding the preliminary issue and the substantive issues. Where I deemed it necessary I made my own inquiries to better understand the facts of the case and in fulfilment of my duties under Statute. At the conclusion of the hearing I informed the parties that if my consideration of the preliminary issue leads me to conclude that I have no jurisdiction to hear the complaints I will not proceed to consider the substantive issues.
Background:
On the 14th October 2020 the Complainant submitted an incomplete manual complaint form to the Workplace Relations Commission (hereinafter referred to as “the WRC”). By letter dated the 16th November 2020 the Complainant was advised by the WRC that her complaint application had undergone validation checks and that the complaint could not be further processed until the issues identified were addressed/clarified by her in writing. In particular, the Complainant was asked to state the employment commencement/end dates and to confirm, in respect of complaints reference CA-00040404-001 and CA-00040404-002, the redress options selected. On the 8th June 2023 the Complainant confirmed that she wished to pursue her complaints however she failed to address the matters raised by the WRC in its previous correspondence.
At the hearing before the WRC on the 11th April 2024 the Complainant confirmed that her employment commenced in or around March 2017 and that her employment ended on the 29th August 2020. In relation to complaint reference CA-00040404-001 the Complainant confirmed that she was seeking redress under the Payment of Wages Act 1991 and that complaint reference CA-00040404-002 was a duplicate of complaint reference CA-000404040-003 and that the complaint was as set out under complaint reference CA-000404040-003. The Complainant pursued three complaints, namely that she was not paid outstanding holiday pay and commissions on the termination of her employment, that her hours of work were changed from 35 hours per week to 29 hours per week when she returned to work following the lifting of Covid-19 restrictions in May 2020 and that she was constructively dismissed from her employment. |
Summary of Complainant’s Case:
The Complainant gave evidence that she received a contract of employment and payslips which identified her employer as Eyesight Opticians Limited. In response to questions from the Adjudication Officer the Complainant stated that she aware in advance of referring her complaints to the WRC on the 14th October 2020 that her employer was Eyesight Opticians Limited. |
Summary of Respondent’s Case:
The Respondent submitted that the Complainant named the incorrect Respondent in her complaint form and failed to set out the employer’s full legal details. The Complainant was furnished with a contract of employment and payslips which identified the employer as Eyesight Opticians Limited. |
Findings and Conclusions:
In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral submissions made by and on behalf of the parties at the hearing. The first matter for me to address is the preliminary issue which has arisen in the course of my investigation – whether the Complainant has named the correct Respondent. If my consideration of the preliminary issue leads me to conclude that I have no jurisdiction to hear the complaints I will not proceed to consider the substantive issues. Preliminary Issue: Has the Complainant named the correct Respondent? CA-00040404-001 – Payment of Wages Act 1991 Section 1 of the Payment of Wages Act 1991 defines “employer” as follows: "employer", in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;” The Respondent confirmed that she was not the Complainant’s employer and that the Complainant was employed under a contract of employment with Eyesight Opticians Limited having a registered address at 7 Árd Carraig, Dublin Road, Thurles Co. Tipperary. There was no application made by the Complainant to amend the name of the Respondent. The Complainant gave evidence that she received a contract of employment and payslips both of which identified the employer as being Eyesight Opticians Limited and she confirmed that she was employed by, had entered into and worked under a contract of employment with Eyesight Opticians Limited. Accordingly, I find that the Complainant has not named the correct Respondent in her complaint form and I therefore find that her complaint is not well founded. CA-00040404-002 – Terms of Employment (Information Act) 1994 (as amended) This complaint was withdrawn at the hearing as it was a duplicate complaint. The Complainant confirmed that she was seeking redress under complaint reference CA-00040404-003. CA-00040404-003 – Terms of Employment (Information Act) 1994 (as amended) Section 1 of the Terms of Employment (Information Act) 1994 (as amended) defines “employer” as follows: “employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer; The Respondent confirmed that she was not the Complainant’s employer and that the Complainant was employed and works under a contract of employment with Eyesight Opticians Limited having a registered address at 7 Árd Carraig, Dublin Road, Thurles Co. Tipperary. There was no application made by the Complainant to amend the name of the Respondent. The Complainant gave evidence that she received a contract of employment and payslips both of which identified the employer as being Eyesight Opticians Limited and she confirmed that she was employed by, had entered into and worked under a contract of employment with Eyesight Opticians Limited. Accordingly, I find that the Complainant has not named the correct Respondent in her complaint form and I therefore find that her complaint is not well founded. CA-00040404-004 – Unfair Dismissals Act 1977 (as amended) Section 1 of the Unfair Dismissals Act 1977 (as amended) defines “employer” as follows: “employer”, in relation to an employee, means the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment and an individual in the service of a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014), shall be deemed to be employed by the local authority; The Respondent confirmed that she was not the Complainant’s employer and that the Complainant was employed under a contract of employment with Eyesight Opticians Limited having a registered address at 7 Árd Carraig, Dublin Road, Thurles Co. Tipperary. There was no application made by the Complainant to amend the name of the Respondent. The Complainant gave evidence that she received a contract of employment and payslips both of which identified the employer as being Eyesight Opticians Limited and she confirmed that she was employed under a contract of employment with Eyesight Opticians Limited. Accordingly, I find that the Complainant has not named the correct Respondent in her complaint form and I therefore find that her complaint is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts 1977 (as amended) 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.
CA-00040404-001 – Payment of Wages Act 1991 For the reasons set out above I decide that this complaint is not well founded. CA-00040404-002 - Terms of Employment (Information Act) 1994 (as amended) This complaint was withdrawn at the hearing as it was a duplicate complaint. CA-00040404-003 – Terms of Employment (Information Act) 1994 (as amended) For the reasons set out above I decide that this complaint is not well founded. CA-00040404-004 – Unfair Dismissals Act 1977 (as amended) For the reasons set out above I decide that this complaint is not well founded. |
Dated: 24th of April 2024
Workplace Relations Commission Adjudication Officer: Christina Ryan
Key Words:
Incorrect Respondent |