Complainant

Respondent

Parties

Pawel  Jarosz

Masterlink Logistics Limited

Complainant

Respondent

Anonymised Parties

Representatives

Ms. ÁIne Feeney, SIPTU

Mr. John Connellan, Carley and Connellan Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00047045-001

08/11/2021

The Complainant commenced employment with the on 30th March 2009. On the date of referral, the Complainant was still in employment, with the contract of employment terminating thereafter. The Complainant was a permanent, full-time employee, in receipt of a weekly payment of €422.76. 

On 8th November 2021, the Complainant referred the present complaint to the Commission. Herein, he alleged that his employer had failed to offer a reasonable accommodation in a return to work following an injury.

At the outset of the initial hearing of this matter, the representative for the Respondent advised that they were not the Complainant’s employers and that, as a consequence of the same, the Complainant had no jurisdiction under the impleaded Act. In such circumstances, the hearing was adjourned to allow the Complainant to consider this position and issue a responding submission if necessary. In due course, the Complainant made an application to change the legal title of the Respondent to reflect that of the correct employer. The Complainant also issued a further set of proceedings with the correct employer listed as the Respondent, and a further complaint thereafter relating to the subsequent termination of employment. A case management conference in relation to all three matters was convened for 23rd November 2023, with the parties being advised that a written determination in respect to this preliminary point would issue in due course.

Following the initial submission of the Respondent, the Complaint accepted that the impleaded entity was not his correct employer. Having regard to the same, the Complainant submitted that the title of the Respondent should be amended so as to implead the correct entity. In support of this application, the Complainant submitted that the Respondent was, at all times, on notice of the complaint and would suffer no prejudice as a consequence of the amendment.

In resisting this application, the Respondent submitted that the Complainant is not entitled to amend proceedings so as to implead an entirely different legal entity.

The present preliminary point relates to an application by the Complainant to amend the title of the Respondent as to implead, what is now accepted, to be the correct employer for the purposes of the present complaint.

In the matter of County Louth VEC -v- Equality Tribunal [2009] IEHC 370, a statutory body’s entitlement to amend proceedings was considered.  Here the Court held that,

“If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.”

This specific matter of the amendment of the proceedings to implead an alternative legal entity was considered at length by Labour Court in Travelodge Management Limited -v- Sylwia WachEDA1511. Here, the Court stated that,

 “It could cogently be argued that in keeping with the decision in County Louth VEC v Equality Tribunal, and by application of the principle of equivalence, the Court should not adopt a more stringent stance in relation to the substitution of parties that is available in the High Court pursuant to that rule.”

The Court went on to note that,

”…the preponderance of authority is that the Superior Courts will not add or substitute a party to proceedings where the limitation period in the action has expired as against that party”. In this case the Labour Court held that it was not permissible to add or substitute a party to proceedings where the limitation period in the action has expired as against that party”.

Following these considerations, the Court held that it was not permissible to add or substitute a party to proceedings where the statutory limitation period has expired as against that party.

Notwithstanding the same, in the matter of O'Higgins -v- University College Dublin & Anor [2013 21 MCA] the High Court held that,

“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”.

In the matter of Capital Food Emporium (Holdings) Limited -v- Walsh & Others (2016) IEHC 725, Barrett J, in allowing a Respondent to be substituted under the Unfair Dismissals Acts, noted that the Complainant,

“…always sought to bring her claim against the correct party and, again, was repeatedly acknowledged and accepted by that party as having pursued the correct party until it elected, unconvincingly, to deny this.”

More recently, in the matter of Auto Depot -v- Vasile Mateiu DWT 1922, the Court considered a similar submission on the part of the Complainant. Following a discussion in relation to the authorities listed above, the Court concluded that the Respondent did not raise any issue regarding the correct employer until a number of days prior to the hearing, at which point the complaint was statute barred. In this regard, the Court held that in circumstances whereby the Respondent could not demonstrate any prejudice,

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

Regarding the instant matter, the factual matrix may be distinguished for the authorities listed above in one crucial respect. Following the Respondent raising this preliminary issue as to the correct Respondent, the Complainant referred a new complaint form naming the correct Respondent, presumably in order to safeguard their position. In answer to a question posed by the Adjudicator, the representative for the Complainant advised that no issue as to time arose in relation to the same as, in their view, the subject matter of the complaint was ongoing at the relevant time. While this position is noted, it should be further noted the Respondent reserved their position in relation to this point. While the Complainant did not wish to withdraw the present matter, it is apparent that there is no requirement to amend the title of the Respondent to prevent a “grossly disproportionate response” as envisaged inO’Higgins. In this regard, it is apparent that the subject matter of the present complaint falls to be considered in the parallel proceedings, rendering the application somewhat moot.

Having regard to the foregoing, I find that there is not requirement to amend the title of the Respondent. As a consequence of the foregoing, the impleaded Respondent is not the Complainant’s employer and as a such his complaint is not well-founded.

I find that as the impleaded Respondent was not the Complainant’s employer, they did not discriminate against him within the definition of the Act.

Amendment, Substitution, Parallel