ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00047371

Parties:

	Complainant	Respondent
Parties	Yin Ling Lee	Fainne Entertainment Ltd t/a Bullet Duck Dumplings

Representatives

N/A

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-00058241-001	11/08/2023

Date of Adjudication Hearing: 12/01/2024

Workplace Relations Commission Adjudication Officer: Elizabeth Spelman

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.

The matter was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the Workplace Relations Commission (the

“WRC”) as a body empowered to hold remote hearings.

Ms. Yin Ling Lee (the “Complainant”) attended the Hearing. Ms. Estelle Zhou attended the Hearing as the WRC-appointed Interpreter. Fainne Entertainment Ltd (the “Respondent”) did not attend the Hearing.

The Complainant and the Interpreter provided evidence on affirmation. The legal perils of committing perjury were explained.

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 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 Complainant stated that no such “special circumstances” applied.

Preliminary Matter – Correct Respondent:

On 22 November 2023, the WRC notified the Parties of the Hearing details.

On 28 December 2023, the Respondent contacted the WRC to indicate that it “do[es] not, nor did [it] ever have an employee (Yin Ling Lee) registered to this company”.

On 4 January 2024, the Respondent contacted the WRC to state that it would not attend the Hearing.

On 9 January 2024, the Complainant emailed the WRC to indicate “I have made a mistake on the complaint form where the registered company was wrote wrongly. The company is Brothar Entertainment Ltd instead.”

At the Hearing on 12 January 2024, I heard from the Complainant 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 was employed as a waitress from end January 2023 until 20 May 2023 by Brothar Entertainment Limited. She submitted that she earned €10 per hour, working 45 hours per week. She submitted that no tax was paid until April 2023. She submitted that in May 2023, she was unfairly dismissed for exercising her rights under the National Minimum Wage Act. The Complainant submitted her Complaint Form to the WRC on 11 August 2023.

Summary of Complainant’s Case:

Preliminary Matter – Correct Respondent:

The Complainant submitted that she had named the incorrect respondent on the Complaint Form. She submitted that the correct respondent was “Brothar Entertainment Limited” and not “Fainne Entertainment Ltd”, as indicated. In advance of the Hearing, the Complainant provided a copy of her Revenue Online Service details which stated that her former employer was “Brothar Entertainment Limited”. At the Hearing, the Complainant confirmed that her payslip also stated that her former employer was “Brothar Entertainment Limited”. The Complainant submitted that she named the incorrect respondent in her Complaint Form as she had relied on inaccurate information provided to her by her former colleagues.

The Complainant further submitted that she also has a pay complaint against her former employer.

Summary of Respondent’s Case:

The Respondent did not attend the Hearing.

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".

In Donegal Meat Processors v. Donal Gillespie t/a Foyle Donegal, UDD2114, the Labour Court noted 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.

Having heard the Complainant’s evidence and having reviewed the Complainant’s Revenue Online Service details which she provided, I am satisfied that the Complainant’s former employer is “Brothar Entertainment Limited”. This is also the Complainant’s position. In the circumstances, I find that “Fainne Entertainment Ltd” is not the correct respondent in this complaint and therefore this complaint is not well founded.

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.

I find that the Complainant has not named the correct respondent in this complaint and therefore I decide that the complaint is not well founded.

Dated: 25th of January 2024

Workplace Relations Commission Adjudication Officer: Elizabeth Spelman

Key Words:

Incorrect respondent, Unfair Dismissals Act.