Adjudication Reference: ADJ-00047814

Parties:

	Complainant	Respondent
Parties	Caitlin Kavanagh	Goodfaith Catering Limited Peony Garden Prosperous

	Complainant	Respondent
Anonymised Parties	{text}	{text}

Representatives

Mr Leo Li

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-00058778-001	11/09/2023

Date of Adjudication Hearing: 01/02/2024

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.

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.

The matter was heard by way of remote hearing on 1 February 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.

Background:

Background

The Complainant commenced employment in the restaurant in September 2020. She worked 10 hours per week and earned €112.00 per week. Her employment ended 27 June 2023. A complaint was received by the WRC on 11 September 2023.

The fact of dismissal is in dispute.

Preliminary Point: Correct Respondent

Issue of Jurisdiction

The Respondent submits that the Complainant has impleaded the incorrect Respondent in these proceedings. The Respondent submits that the Complainant has impleaded the trading name of the company in these proceedings rather than the actual name of the limited company which was the legal entity that employed her.

The Complainant disputes the Respondent’s contention that she has pursued the incorrect Respondent in relation to this complaint. The Complainant stated that she had been sent a new contract on 29 June 2023 which had the company name as Goodfaith Catering Ltd, trading as Peony Garden. The Respondent maintains the correct name of the entity is Peong Garden Ltd.

The first issue that I must decide relates to the jurisdictional issue raised by the Respondent as to whether or not the Complainant has pursued the incorrect entity as the Respondent in these proceedings.

The Respondent submits that the Complainant has referred the complaint against the trading name of the business, Goodfaith Catering Limited and contends that the correct identity of her employer was Peong Garden Limited. The Respondent submits that the Complainant has therefore pursued the incorrect Respondent.

The Complainant contends that her employer was fully aware of this complaint at all material times and she sought leave to amend the name of the Respondent to that of the correct legal entity which had employed her. The Respondent objected to this request and submits that the complaint should be dismissed.

Therefore, the question I must decide is whether or not it is legally permissible for me to accede to the Complainant’s application to substitute the correct respondent in this case. In considering this issue, I have taken cognisance of the Labour Court case of Auto Depot Limited -v- Vasile Mateiu UDD1954. In this case the Complainant, Mr. Mateui, made an application in the course of proceedings before the Labour Court under the Unfair Dismissals Act to amend the name of the Respondent from “Auto Depot Tyres Ltd” to “Auto Depot Ltd”. The Court allowed the request for the amendment and in doing so held that: “Accordingly, the Court considers the erroneous inclusion of ‘Auto Depot Tyres Ltd’ on the WRC complaint form to be no more than a technical error. The Court is fully satisfied that the Respondent’s name can simply be amended on the paperwork to reflect its correct legal title, that of ‘Auto Depot Ltd’”.

The Labour Court, in this case, provided an extensive analysis of the jurisprudence and relevant authorities on this subject and set out a number of factors which it took into consideration in arriving at its decision on this matter. In particular, I have taken cognisance of the following paragraphs from the decision: “Having regard to the foregoing and relying in particular on the High Court decision in Capital Food Emporium, the Court is fully satisfied that the correct employer has been pursued by the Complainant. The Court is further fully satisfied that the respondent party that appeared before the Court was the Complainant’s employer. That party was fully aware of the Complainant’s complaints to the WRC from July 2017. He knew precisely from whom the complaints were and to what the complaints referred. The respondent party has had a full opportunity to be heard and to answer those complaints. The Court is therefore equally satisfied that the employer will suffer no prejudice or injustice by its decision on this preliminary matter.

In arriving at this conclusion, the Court is also conscious of the High Court Judgment in O’Higgins -v- University College Dublin & Another (2013) 21 MCA wherein Mr Justice Hogan held: “Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be) …. In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.”

Declining jurisdiction in these circumstances would certainly amount to a “grossly disproportionate response” as envisaged in O’Higgins.

The Court is further satisfied that this approach 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. On that point the decision of the Supreme Court in Halal Meat Packers (Ballyhaunis) Ltd v Employment Appeals Tribunal [1990] I.L.R.M 293 is relevant. Here Walsh J stated, albeit obiter, as follows: - “This present case indicates a degree of formality, and even rigidity, which is somewhat surprising. It is a rather ironic turn in history that this Tribunal which was intended to save people from the ordinary courts would themselves fall into rigidity comparable to that of the common law before it was modified by equity.”

I am satisfied that the general principles enunciated by the Labour Court in the Auto Depot Limited case can also be applied in the circumstance of the instant case. In considering this matter, I have taken the following factors into consideration:

The Complainant has named the trading name of her employer as the Respondent in these proceedings as opposed to the actual name of the limited company that employed her. The Courts have held in a number of cases, that statutory adjudicative bodies should not adopt a more stringent procedural approach than that adopted in ordinary litigation. Consequently, since a party can initiate proceedings in the High Court using a business name, it would be inconsistent with the informal and accessible nature of the procedures set out under the Workplace Relations Act 2015 to hold that proceedings cannot be similarly initiated under that Act.

I am satisfied that the Complainant’s employer was fully on notice and accepted these proceedings from the outset. The notification of the complaint was sent by the WRC to the Director of the company that employed the Complainant on 22 September 2023. In the circumstances, I am satisfied that the Complainant’s employer was fully informed as to the precise nature of the complaint.

The parties were notified on 18 December 2023 of a hearing date before an Adjudication Officer on 1 February 2024. Up to that point, no issue regarding the correct Respondent was notified by the Complainant’s employer to either the Complainant or the WRC. Moreover, I note that the WRC was informed by Complainant’s employer on 18 December 2023 that she would attend, requesting an interpreter. It was not until the date of the hearing on 1 February 2024, that the issue in relation to the incorrect Respondent was raised by the accountant acting on behalf of the Complainant. This was some four months after notification of the complaint had been forwarded to the Complainant’s employer.

The correct employer appeared at the hearing with its accountant representative on 1 February 2024 and was fully prepared to defend the claim which had been initiated by the Complainant. I am satisfied that the Complainant’s employer was not prejudiced in any way in terms of its ability to defend the instant proceedings as a result of the mis-statement of the name of the Respondent on the initiating form for this complaint.

Having regard to the foregoing, I am satisfied that the correct employer has been pursued in relation to this complaint and that the mis-statement by the Complainant of her employer’s name on the Complaint Referral Form constitutes a technical error. Moreover, I am satisfied that the Complainant’s employer was fully aware of the existence and details of the instant complaint from September 2023. I take the view that if I were to decline jurisdiction in the pertaining circumstances that it would clearly amount to a “grossly disproportionate response” as envisaged by the High Court in the case of O’Higgins -v- University College Dublin & Another (2013) 21 MCA. In the circumstances, I find that the Respondent’s name can be amended to reflect its correct legal title.

Summary of Complainant’s Case:

The Complainant gave evidence on affirmation.

The Complainant stated that she believed she had been unfairly dismissed because she raised a concern about additional tasks she had been told to carry out by the new owner of the restaurant. She was dismissed, by text message, on the same day she raised these concerns.

By way of background the Complainant stated that she had worked part-time in the restaurant as she is a full-time student. She normally worked from 17.00 hrs to 23.00 hrs weekends and week-days as required.

On Saturday 24 June 2023, she learned from the previous owner that the establishment was being sold.

On Monday 26 June 2023, the new owner [the Respondent] came in and the Complainant and she had a brief conversation about additional tasks that the Respondent wanted the Complainant to carry out.

On Tuesday 27 June 2023, while going to college the Complainant sent a message to her new employer asking for a €1 per hour raise because of the additional tasks required of her. In the same message the Complainant had also raised concerns she had about some of these new tasks which required the use of chemicals (use of chemicals, working at a height, lack of training). The Complainant says her health and safety concerns were not received very well by the Respondent

The Complainant stated that in response to her text message the Respondent told her to find a new job and that she was not needed. When the Complainant replied expressing her shock at this turn of events, she received another reply from the Respondent which stated, “you are not my employee.”

Later that day the Complainant submits that she received a message from a colleague telling her that she, the colleague, had been asked to cover the Complainant’s shift and this colleague had been told by the Respondent that the Complainant had been fired.

The Complainant stated that she was shocked and upset. She had never expected to be treated that way. She had worked in the restaurant for many years and had never had any complaints made against her. She had had a good working relationship with all her colleagues.

In answers to questions put to her in cross examination, the Complainant stated that the Respondent had contacted after she had been dismissed to offer her a new contract.

In concluding, the Complainant stated that there was no misunderstanding or misinterpretation, the Complainant was told in writing she was being dismissed. This caused her upset and distress. It was unfair.

The Complainant stated that she had gained another part-time role, 10 hours per week, on minimum wage, some 20 km from where she lives, within a month of the termination of her employment with the Respondent.

Summary of Respondent’s Case:

Mrs Zhang gave evidence on affirmation.

The witness stated that there had been no dismissal just a mutual agreement between the parties that the Complainant would leave her job. The witness stated that she had given the Complainant €300 as a “golden handshake”.

The Respondent stated that she had offered the Complainant a job and had sent her a contract to sign.

In response to a question in cross examination, Mrs Zhang stated that she had sent a new contract to the Complainant on 29 June 2023. Mrs Zhang denied she had told the Complainant that she should look for alternative employment. She stated that the Complainant was very happy with her but the following day she, the Complainant, had told her she could find a better job with more pay and the Respondent told her to go to the other job. The Respondent denied she had dismissed the Complainant in a text message.

In conclusion, the Respondent stated that she had consulted with her employees. That it was never her intention to dismiss any employee, in fact she needed staff. The Complainant was happy when she left the job and she was not dismissed.

Findings and Conclusions:

Section 6(1) of the Unfair Dismissals Act 1977 provides that: -

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act; to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(4)(c) of the 1977 Act provides that: -

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from ... the redundancy of the employee...

Section 6(7) provides that: -

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.

The Complainant provided copies of WhatsApp messages sent by her to the Respondent and the Respondent’s responses to these messages. The veracity of these messages was not questioned by the Respondent and I accept them as genuine. It is clear from these messages that the Respondent dismissed the Complainant.

The messages of the 27 June 2023 from the Respondent to the Complainant are clear, and include the following;

“I don’t need you working for me.”

“You may be better to find a new job…”

“You are not my employee…”

However, what is also clear from the messages is that within 25 minutes of dismissing the Complainant, the Respondent replied to her stating that there had been a misunderstanding and that she wanted to offer the Complainant a new contract. The Respondent has submitted that she offered the Complainant a new contract of employment. In a message she wrote; “If you sign new contracts you are my employee if you not sign you are not my employee.”

From the evidence adduced and the copies of the WhatsApp messages it is clear the Complainant was dismissed and told she must sign a new contract if she wanted her job back. This equates to a fundamental breach of the Complainant’s rights to maintain her employment with the owner of an entity she worked in for some three years when taken over by a new owner. If the new owner wished to introduce a new contract of employment, she should have discussed this with the Complainant, instead she delivered an ultimatum to the Complainant.

From the evidence adduced, particularly the string of text messages, I find the Complainant was dismissed. I find this was not a dismissal due to redundancy.

In order to decide on the fairness or otherwise of the dismissal I must consider (i) reasonableness of the employer (Respondent) in relation to the dismissal and (ii) the procedures utilised by the employer prior to the decision to dismiss the employee (Complainant) being made.

Reasonableness; I find it was totally unreasonable for the employer to dismiss the employee in the circumstances.

Procedures; I find the employer did not utilise any procedures whatsoever before dismissing the employee.

I find the Complainant was unfairly dismissed.

The Complainant was quick to find alternative employment but the terms and conditions of employment, allied to the distance from her home, make it a less rewarding role than that which she enjoyed with the Respondent. In the circumstances I believe compensation is warranted in the amount of eight weeks’ pay.

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.

The Complainant was unfairly dismissed and I award her €896.00.

Dated: 16/04/2024

Workplace Relations Commission Adjudication Officer: Roger McGrath

Key Words:

Reasonableness, procedures