Complainant

Respondent

Anonymised Parties

An Employee

A Barber Service

Representatives

Self-represented

Atif Farooq, Accountant

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00063691-001

24/05/2024

The Complainant referred her complaint to the Director General of the WRC on 24 May 2024 pursuant to the Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012.

This decision is to be read in conjunction with a recommendation issued in a dispute bearing the reference number IR - SC - 00003513.

At the adjudication hearing, the Respondent brought it to the Adjudication Officer’s attention that the Complainant named an incorrect respondent in her complaint referral form. While the Complainant was originally employed by Ms A trading as a sole trader, Ms A and her husband Mr B subsequently registered a named limited company of which Ms A became a director. The Respondent confirmed that it took over all liabilities arising from the Complainant’s employment with Ms A in a sole trader capacity. The Respondent consented to the amendment of the complaint form accordingly and this decision reflects the correct name of the Respondent.

The Complainant referred a claim to the Director General of the WRC on 24 May 2024 pursuant to the Regulation 18 of the European Communities (Road Transport)(Organisation of Working Tine of Persons Performing Mobile Road Transport Activities) Regulations 2012.

In the Complaint Specific Details or Statement section, the Complainant described in detail the difficulties she had with regard to the allegedly incorrect information recorded by the Respondent in the context of the cessation of her employment on 26 October 221 and the implications of same.

At the adjudication hearing, which was conducted with the assistance of an interpreter, the Complainant explained that she had a dispute with the Respondent, however, she was not sure how to reflect this in the complaint form. The Complainant has a very limited English.

The Respondent agreed that there is a dispute between the parties that needs to be resolved. The Respondent agreed to the amendment of the complaint form and the introduction of a dispute under the Industrial Relations Act, 1969. The Respondent confirmed that there was no prejudice or unfairness in amending the complaint form and the introduction of a dispute. The Respondent was open to resolving the matter and said it would welcome a recommendation that would allow the parties to do so.

The WRC complaint form is not a statutory form. It is intended to set out the outline of a complaint or complaints, so that, and in line with fair procedures, the Respondent knows the issues it faces.

I am guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan [2009] IEHC 370 where at paragraph 6.2 McGovern J held;-

‘I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.’ 

I note that McGovern, J. also stated in this judgment at paragraph 6.3 that this can only be done so long as ‘the respondent in the claim must be given a reasonable opportunity to deal with these complaints, and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice.’

I also note the dicta of MacMenamin J. in the Supreme Court in County Louth VEC v Equality Tribunal [2016] IESC 40:

‘It goes without saying, first, that the duty of the Equality Officer is both statutory, and, ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] I.R. 279, approved in Killeen v. DPP [1998] ILRM 1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures.’

I further note that in his judgement in Clare County Council v Director of Equality Investigations [2011] IEHC 303 Hedigan J. stated at paragraph 6.5:- 

‘It is clear from the foregoing that because the EEI form is only designed to set out the generality of a complaint, complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken by surprise, or alternatively given adequate time to answer, there can be no injustice therein.’

I further note the dicta of Charleton J. in Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210:

‘It follows from the foregoing that a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice. For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it. If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.’

In Clare County Council v Director of Equality Tribunal [2011] IEHC 303, Hedigan J noted that “allowances must be made for the fact that lay persons and representatives do not articulate complaints in the same way as professionally qualified advocates.”

However, I also note Mc Kechnie J in Louth VEC and Equality Tribunal v Brannigan [2016] IESC 40 stating that the Tribunal cannot ‘freelance its inquiry‘:

‘35.  It is both a trite and historical principle of law that a creature of statute must live by the statute. Its jurisdiction is found solely within the provisions of the enabling Act. It has no inherent capacity, unlike, say, that of a constitutional court. It is therefore bound by what has been conferred on it. It has no further competence and it cannot create, add to or enlarge the jurisdiction so vested in it. Kileen v Director of Public Prosecutions [1997] 3 I.R. 218. It is bound by what jurisdiction it has and must act accordingly.’

Applying these dicta, I note that the WRC complaint form is not a statutory form. It is intended to set out the outline of a complaint or complaints, so that, and in line with fair procedures, the Respondent knows the issues it faces. In this case, the issues that are subject of the Complainant’s dispute are clearly raised in the complaint form. The complaint form was copied to the Respondent.  In its pre-hearing submission, and at the adjudication hearing, it was clear that the Respondent was fully prepared to deal with the matter regardless of the act under which it was referred.

I note that the Complainant is non-Irish national. The Complainant has a very limited command of the English language and at the hearing she required an interpreter’s assistance.

Furthermore, I note that the Respondent consented to the introduction of the dispute and confirmed that it would suffer no prejudice or unfairness as a result of the claim being introduced. The Respondent was willing to resolve the matter and indicted that a recommendation in that regard would help the parties to deal with the outstanding issues.

I find that I have jurisdiction to investigate this dispute under the Industrial Relations Act, 1969. A recommendation with regard to the dispute is issued separately.

At the adjudication hearing, the complainant acknowledged that her employment did not come within the scope of the Regulations.

The Respondent was in agreement that the Complainant’s employment did not come within the scope of the Regulations.

The European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 apply to mobile workers and those engaged in international road transport activities.  

The Complainant conceded that her employment did not come within the scope of the Regulations.

No evidence has been presented to support a claim under the Regulations and therefore I must find that this complaint is not well founded.

I declare this complaint to be not well founded.

Mobile workers-