ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00043090

Parties:

Complaint:

Date of Adjudication Hearing:  21/11/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015and/or Section 79 of the Employment Equality Acts, 1998 - 2015following 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.

Background:

The Complainant was employed under a community employment scheme from 9 May 2022 to 13 June 2022.  He referred his complaint under the Employment Equality Act 1998 that he had been discriminated against on the ground of sex and that he had been harassed and sexually harassed in the course of his employment.  On the complaint referral form to the Workplace Relations Commission, he identified the Golf Club in which he carried out his duties as being the Respondent.  Correspondence from the solicitor of the Respondent pointed out that the Golf Club was not the employer of the Complainant, and that the Complainant’s contract of employment clearly states that Lismore Community Development CLG was the employer.

Summary of Complainant’s Case:

The Complainant stated that he now realises that the correct Respondent as the employer should be Lismore Community Development CLG.  In correspondence with the WRC on 16/08/2023, he had sought to amend the complaint referral form to reflect this fact.  The WRC advised him that there was no provision for amending such a form prior to the hearing and any issue he had must be raised with the Adjudication Officer on the day.  He was now requesting that he be allowed to institute proceedings against Lismore Community Development CLG.

Summary of Respondent’s Case:

The legal representative of the Respondent submitted that the Complainant had named the wrong entity as the Respondent/Employer in this case.  He had made attempts for the Complainant and his then legal representative from the Legal Aid Board to withdraw the complaint against his client.   The following written submission was received from the Respondent’s representative:

The Claimant commenced employment with Lismore Community Development CLG (the “Sponsor”) on the 9th May 2022 and was offered work placement at with the Respondent (the “Sub-Sponsor”) as a maintenance/grounds person.

PRELIMARY ISSUE SUBMISSION

The Complainant’s Contract of Employment signed by the Complainant and also by the Sponsor, as the Employer, on the 4th May 2022 clearly and repeatedly states that the Sponsor is the Employer and that the Sub-Sponsor is not. The Contract of Employment dated 9th May 2022 clearly states that “Participants are employed by the Sponsoring Organisation, Lismore Community Development CLG” The Contract further states that “Participants are employed by the Sponsor, Lismore Community Development CLG and Not the Sub-Sponsor.”

The Community Employment Procedures Manual dated April 2022 states “…The Sponsor organisation is the legal employer of the CE Supervisor and the participants.”

CONCLUSION In the circumstances, it is submitted that the Adjudicator does not have jurisdiction to consider this claim as Respondent was not the Complainant’s employer and is not the proper Respondent in respect of a complaint under Section 77 of the Employment Equality Acts 1998 – 2015 and therefore the complaint should be dismissed on such basis

Findings and Conclusions:

The Complainant was employed on a community employment scheme from 9 May 2022 to 13 June 2022.  He was given a contract of employment stating that the CE Scheme was the employer not the CE scheme’s client, which is the named Respondent in this case. 

I am satisfied that the Complainant has incorrectly named the Respondent in this case.  I find that there was not an employer/employee relationship between the Complainant and the Respondent. Accordingly, I find that I do not have any jurisdiction to enquire into the complaint under the abovementioned enactment against the Respondent.

The first issue I consider is  a request from the Complainant to amend the complaint form.

By correspondence 16/08/2023 the Complainant sought to have the complaint form amended to substitute the CE scheme for the Golf Club. 

There exists no statutory power conferred upon an Adjudication Officer to amend the title of proceedings in cases save for limited and express circumstances and only where a decision has issued. This is provided for in Section 41 (16) of the Workplace Relations Act 2025 and/or Section 39 (2) and (3) of the Organisation of Working Time Act 1997.  However, the Courts have held in a number of cases that statutory adjudicative bodies (such as WRC) should not adopt a more stringent approach from that adopted in ordinary litigation. 

The Labour Court held in the case of Travelodge Management Limited – v- Sylwia Wach EDA1511 that:

The decision of the High Court in County Louth VEC v Equality Tribunal [2009] IEHC 370 is a seminal case on the question of when proceedings before a statutory tribunal can be amended.  In that case McGovern J. set out the following principles of law:

“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 originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.”

The Labour Court also held in the Travelodge case, referring to the Rules of the Superior Courts which make provision for the amendment of proceedings initiated in the High Court where the parties are improperly named, that “it could cogently be argued that in keeping with the decision of 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.”

Having regard to the foregoing authorities, I am satisfied that it is permissible for statutory Tribunals, such as the WRC, to allow a party to amend or substitute the name of an Employer/Respondent in proceedings in certain circumstances and any such application must be considered on the merits of the individual case.

However, I am also cognisant that there is further established key principle that has emanated  from the Courts and which must be taken into account when deciding on the merits of any such application for an amendment to the name of the Employer/Respondent, namely whether or not the action in question against the party is statute barred.  The Labour Court also addressed this in the Travelodge case and held that

“…it appears to the Court that while there are some apparently divergent decisions on this subject, 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 applying this jurisprudence to the facts of this instant case, it is clear that the application to amend the name of the Respondent has not been made within the applicable time limits that govern the referral of complaints under the relevant enactment namely Section 41 (6) of the Workplace relations Act 2015.  The Complainant’s employment ended on 13 June 2022 and therefor the alleged contraventions of the Act under which the complaint has been referred could not have occurred any later than that date.  The application to amend the name of the Respondent was made on 16 August 2023, and therefore was clearly made outside the statutory time limits.  In the circumstances, I find that I do not have jurisdiction to allow the Complainant to amend or substitute the name of the Respondent in these proceedings.    

The next issue that I must consider is the Complainant’s application, made at the hearing, to institute fresh proceedings under Section 39 (4) of the Organisation of Working Time Act 1997.

Section 39 (4) provides for leave to institute fresh proceedings against the Community Employment scheme in relation to the instant complaint.  That section provides:

(4) If an employee wishes to pursue against a person a claim for relief in respect of any matter under an enactment or statutory instrument referred to in subsection (2), or the Table thereto, and has already instituted proceedings under that enactment or statutory instrument in respect of that matter, being proceedings in which the said person has not been given an opportunity to be heard and—

(a) the fact of the said person not having been given an opportunity to be heard in those proceedings was due to the respondent’s name in those proceedings or any other particular necessary to identify the respondent having been incorrectly stated in the notice or other process by which the proceedings were instituted, and

(b) the said misstatement was due to inadvertence,

then the employee may apply to whichever relevant authority would hear such proceedings in the first instance for leave to institute proceedings against the said person (“the proposed respondent”) in respect of the matter concerned under the said enactment or statutory instrument and that relevant authority may grant such leave to the employee notwithstanding that the time specified under the said enactment or statutory instrument within which such proceedings may be instituted has expired:

Provided that that relevant authority shall not grant such leave to that employee if it is of opinion that to do so would result in an injustice being done to the proposed respondent.

As is clear from a careful analysis of the wording of subsection (4), these provisions are intended to provide a mechanism by which fresh proceedings can be instituted against an employer which was incorrectly identified in an original complaint. This subsection does not deal with the amendment of either proceedings or a decision. Nor does it allow for the substitution of one Respondent for another. This subsection applies to situations in which a complaint is initiated against a wrong party as Respondent and the complainant wishes to initiate a fresh complaint concerning the same matter against the correct Respondent. What this subsection provides is that, in these circumstances, the complainant may apply to an Adjudication Officer for leave to re-initiate proceedings against the correct Respondent. That is a stand-alone process and if leave is granted, the Complainant can re-submit his or her complaint afresh.

It is clear that, in order to grant leave to an employee to invoke these provisions, an Adjudication Officer will have to be satisfied that the conditions specified in the subsection are met, namely that a complaint was previously initiated in respect of the same matter against an incorrectly named or described, that the error in naming or describing the employer in the original case was due to inadvertence, and that the proposed new Respondent would not suffer an injustice if leave is granted.

I am satisfied that the Complainant has already initiated proceedings in respect of these matters against an incorrect Respondent.   I am satisfied that the proposed Respondent has not been given an opportunity to be heard in those proceedings which was due to the respondent’s name in those proceedings having been incorrectly stated in the notice of the proceedings.  In relation to whether the said misstatement was due to inadvertence, I note that the Employment Appeals Tribunal held in the case of Jeevanhan Al Tambraga -v- Orna Morrissey and Killarney Avenue Hotel[2013] 24 ELR 275 when commenting on the scope of Section 39(4) of the Act that:

“The majority acknowledge that s.39 of the Organisation of Working Time Act 1997 gives certain scope to the Tribunal to allow for an application to be made to the Tribunal for amendment of the name of the employer. Such power is qualified quite significantly in s.39(4)(b) of such section noting that there must be inadvertence on the part of the relying party, to justify the making of an amendment. The word inadvertence is the qualifier in these circumstances, meaning an accident or oversight.”

I also note that the word “inadvertence” is defined in the Collins Concise English Dictionary as “a lack of attention; heedlessness; an oversight; slip”.

In this instant case, I am satisfied that the Complainant was focussed on his grievance and considered the Respondent to be the entity which was the subject of that grievance and complaint.    He did have a contract of employment which set out that the Community Employment scheme (the Sponsor) was the employer, not the Respondent (the sub sponsor).  I note the Complainant had been in regular contact with the Manager of the CE Scheme particularly in July 2022 when his complaints against an individual in the Golf Club were the subject of his emails to the Manager.  I also note that from an early stage, the Complainant had the benefit of legal advice.   However, the Complainant’s focus on the alleged wrong which had been suffered by him led to him lacking attention in naming the correct Respondent.  I note that the CE Scheme Manager was well aware of the Complainant’s difficulties and was on notice of his complaints and I find that the proposed respondent will not suffer an injustice if leave is granted.

Having regard to the evidence adduced, I find that the error which resulted in the misstatement of the employer’s name in the original application arose as a result of inadvertence on the part of the Complainant.   I therefore grant leave to institute proceedings against the said person (“the proposed respondent”) in respect of the matter concerned under the said enactment.

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 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I find that I do not have jurisdiction to inquire into the complaints against the named Respondent under the Employment Equality Act 1998 as the incorrect employer had been named in the claims referred to the Workplace Relations Commission under that enactment.

I find that the misstatement of the Respondent’s name on the Complaint Referral Form presented to the WRC in respect of the initial proceedings was due to inadvertence. Accordingly, I grant leave to the Complainant pursuant to Section 39(4) of the Organisation of Working Time Act 1997 to initiate proceedings against Lismore Community Employment Scheme CLG in relation to the complaint under the Employment Equality Act 1998.

Dated:  17th of January 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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