ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00051508
Parties:
| Complainant | Respondent |
Parties | Linda Byrne | Allied Irish Banks plc |
Representatives | N/A | Mark Kelly, Inhouse Solicitor. |
Complaint:
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-00063172-001 | 26/04/2024 |
Date of Adjudication Hearing: 24/07/2024
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Procedure:
In accordance with section 41 of the Workplace Relations Act 2015 and 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.
Miss Linda Byrne (the “Complainant”) attended the Hearing. Her mother, Ms. Valerie Doyle, attended by way of support. Allied Irish Banks plc (the “Respondent”) was represented by Mark Kelly, Inhouse Solicitor.
At the outset of the Hearing, I explained that pursuant to the Supreme Court case of Zalewski v. Adjudication Officer & Ors [2021] IESC 24, all Workplace Relations Commission (“WRC”) hearings are held in public. I explained that where “special circumstances” apply, a matter could be heard in private and decisions could be anonymised. The Parties confirmed that no such “special circumstances” applied.
Preliminary Matter – Correct Respondent:
On 2 May 2024, the WRC notified the Parties of the complaint details.
On 3 May 2024, the Respondent contacted the WRC to indicate “[p]lease be advised that the [Respondent] was not the Employer in this instance”.
On 4 July 2024, the Respondent contacted the WRC to indicate, inter alia, that the Complainant was never employed by the Respondent and that there was no contract of employment in place between the Parties.
At the Hearing on 24 July 2024, I heard submissions from the Parties in relation to the correct respondent. I adjourned the Hearing and reserved my position on: (i.) whether to decide this matter on the basis of this preliminary matter; and (ii.) whether to hold a further hearing day. As set out below, I have decided this matter on the basis of this preliminary matter and in the circumstances, there will not be another hearing day.
Background:
The Complainant worked as a cleaning operative for Bidvest Noonan between early 2020 and January 2024. At the time, she earned approximately €12.90 per hour and worked approximately 15 hours per week. The Complainant was located in one of the Respondent’s branches. The Complainant alleges that the Respondent acted in violation of the Unfair Dismissals Acts 1977-2015.
The Respondent submits that it is not the correct respondent in this matter as it never had an employment relationship with the Complainant. |
Summary of Complainant’s Case:
Preliminary Matter – Correct Respondent: The Complainant submitted that Bidvest Noonan was her employer. She submitted that she had an employment contract with Bidvest Noonan and that Bidvest Noonan paid her. She submitted that she had made an error when she stated in the Complaint Form that the Respondent was her employer. |
Summary of Respondent’s Case:
Preliminary Matter – Correct Respondent: The Respondent submitted that the Complainant was never employed by the Respondent and that she never had a contract of employment with the Respondent. The Respondent submitted that there was no employer-employee relationship between the Parties. The Respondent submitted that it is aware that the Complainant was employed by Bidvest Noonan, which was a contractor for the Respondent. The Respondent further submitted that Bidvest Noonan is not registered as an Employment Agency and as such, the Complainant does not have a right to bring this complaint under section 13 of the Unfair Dismissals (Amendment) Act 1993. The Respondent submitted that this matter should be struck out as it has no case to answer. |
Findings and Conclusions:
The Law: Preliminary Decisions: In Brothers of Charity (Roscommon) Ltd. v. Marian Keigher EDA1014, the Labour Court considered the determination of an issue by way of preliminary decision. The Labour Court referred to the judgments of Kenny J. in Tara Explorations and Development Co. Ltd v. Minister for Industry and Commerce [1975] IR 242; and Hardiman J. in B.T.F. v. Director of Public Prosecutions 2 ILRM 367 (the “B.T.F. Case”). In the latter case Hardiman J, found: "It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue. The classic example is where the Statute of Limitations is pleaded. In other cases, however, the position may be much less clear". The Labour Court noted in Donegal Meat Processors v. Donal Gillespie t/a Foyle Donegal, UDD2114, that seeking for the substantive issue and the jurisdictional issue to be dealt with together was: “akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance. […] Only if the court determines that it has jurisdiction to do so can it go on to consider the fairness or otherwise of the dismissal itself”. Findings and Conclusion: Following the caselaw outlined above and particularly the B.T.F. Case, I find that there is a “strong case” for determining this matter by way of preliminary decision. I note the Complainant’s submission that she was not employed by the Respondent. I also note her submission that she had a contract of employment with, and was paid by, Bidvest Noonan. In the circumstances, I am satisfied that the Complainant was not employed by the Respondent. I find that the Complainant has not named the correct respondent in this complaint. Therefore I decide that the Complainant was not unfairly dismissed and that the complaint is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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 find that the Complainant has not named the correct respondent in this complaint. Therefore I decide that the Complainant was not unfairly dismissed and that the complaint is not well founded. |
Dated: 13TH OF August 2024
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Key Words:
Unfair Dismissals Acts 1977-2015, Incorrect respondent. |