ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00047737

Parties:

Complaints:

Date of Adjudication Hearing:  29/04/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

Following her dismissal from her employment, the Complainant submitted two complaints against the Respondent.

Sensitive medical information was received by the Respondent prior to the hearing, and a submission made to hold the hearing otherwise than in public.  I gave consideration to holding the hearing in private and anonymising the decision.

Section 41(13) of the Workplace Relations Act 2015 (as amended) provides as follows:

Proceedings under this section shall be conducted in public unless the adjudication officer, of his or her own motion or upon the application by or on behalf of a party to the proceedings, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.

As there were certain matters of a sensitive nature referred to in the complainant’s complaint and submission on the substantive issues, I have decided in accordance with my powers under Section 41 (13) of the Act to conduct the hearing otherwise in public.   

In deciding to anonymise the decision, I refer to the Respondent cited by the Complainant as “A’s Hotel”.  The correct Respondent as alleged by the legal representative is referred to as “B Hotels t/a A’s Hotel”.

The respondent raised a number of preliminary issues, chiefly, the matter of the incorrect respondent having been named in the complainant’s complaint form.   

In this decision, I address the significant issue of the incorrect respondent named by the complainant in the complaint referral form.

Summary of Complainant’s Case:

The complainant provided a written submission on the substantive issues in her complaint.                At the hearing, when addressing the respondent’s preliminary issues, namely that the incorrect respondent had been impleaded and that there was no substantive information in the complaints, the complainant’s representative submitted that there was no intention of the respondent being ambushed as noted in correspondence leading to the case, but the passing of the complainant’s mother was the reason the complainant did not apply for the name of the Respondent to be amended.

The representative of the complainant stated that he was not legally qualified.  He wished for natural justice to be applied and that the complaint should not be dismissed on a technicality.

While it was acknowledged that the Complainant’s contract and payslips cite “B Hotels t/a A’s Hotel” most other documentation, emails, letter of dismissal cited “A’s Hotel”.

In submitting that the correct name of the respondent could be amended, case law cited included O’Higgins v UCD and the Labour Court decision in Auto Direct Limited.  It was submitted that in line with the decisions in these cases, to refuse to change the name of the respondent on the complaint would prevent natural justice and fairness on a technicality.  It is further submitted that the respondent would suffer no prejudice by making the change.

Summary of Respondent’s Case:

Preliminary Issue – Incorrect respondent named

The Complainant has initiated proceedings against an incorrect Respondent, namely “A’s Hotel”. This is not the Complainant’s employer under the Employment Equality Acts 1998-2021 or the Safety, Health and Welfare at Work Act 2005. The within Respondent raises this as a preliminary objection. By way of letter dated the 18th of December 2023 the Complainant was put on notice by the Respondent of the Complainant’s failure to name the correct legal entity and despite this, the Complainant has neglected to initiate fresh proceedings against this Respondent.   The Complainant has failed to take any steps to rectify this and is now entirely statute barred to initiate a new complaint against the correct legal entity. This claim must be dismissed.

The Complainant was employed by B Hotels T/A A’s Hotel.   Contract of Employment and Handbook submitted. This is confirmed in her contract of employment. A copy of the CRO printout of the company evidences the correct name of the Respondent entity CRO Printout.

The Respondent herein cannot be held legally liable for this complaint in circumstances where the Complainant has named the incorrect entity on the Complaint Form. It is submitted that the complaint herein is not correctly before the Adjudication Officer, in circumstances where the Complainant worked under a contract of employment with B Hotels.

The Complainant must prove that there is any link between any alleged difficulty encountered by her in identifying the correct Respondent and the delay in seeking to substitute the named respondent for the correct Respondent. The Respondent relies upon An Employee v An Employer (UD36/2011), where the EAT found that the correct employer was identifiable to the Complainant and his representatives and further the case of Julie O Brien and Alan Keating v Carton Fixings Ltd (ADJ-00029590). In Ann Aziz v David Jones and John Smyth DEC-E2014-026, the Equality Officer found that the correct employer was clearly visible to the employee and dismissed the complaint when the incorrect Respondent was named on the Complaint Form. The Complainant herein at all times knew the name of her employer, and it was visible to her on the contract of employment and payslips.

In Office Administrator v Regional Newspaper (ADJ-00021698; 25 August 2021), the Adjudication Officer relying on Wach dismissed the complaint as the Respondent’s name was incorrectly identified on the Complaint Form. It was held:

“While I appreciate that was confusing for the Complainant and very sloppy on the part of the Complainant's employer to have different names on different documents, the Complainant had within her possession documentary evidence that would have led her to ascertain the correct name of her Employer had she done so at the time. I find that the Complainant was never employed by the Respondent”.

The Complainant’s employment was terminated on 16 April 2023. It is respectfully submitted that the Adjudication Officer herein has no jurisdiction to extend the time to amend the Complaint Form by either six months or 12 months under a “reasonable cause” application under the Workplace Relations Act 2015 (as amended).

It is of further note that the Complainant waited for five months following her termination, one month prior to the statute of limitations expiring, before lodging the Complaint Form. As per the dicta in the Labour Court case of Brother of Charity Services Roscommon v Lynch, the lateness in submitting a Complaint Form can be a determining factor that can be considered by the Adjudication Officer when deciding whether it is appropriate to substitute a Respondent on the Complaint Form.

The Respondent named on the Complaint Form by the Complaint Form was never an employer of the Complainant and for this reason the complaint must be dismissed.

Findings and Conclusions:

The legal representative acting on behalf of B Hotels argued that the incorrect respondent has been impleaded and therefore I have no jurisdiction.

In considering this matter, I note that the Courts have held in a number of cases, that statutory adjudicative bodies (such as the WRC) should not adopt a more stringent procedural approach than that adopted in ordinary litigation. In this regard, 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 principle 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 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.” The ratio of that case appears to be that the procedures adopted by statutory tribunals in relation to the amendment of non-statutory forms used in the initiation of claims should not be more stringent than those that apply in the ordinary courts. That is in line with the generally accepted principle that statutory tribunals, such as this Court, should operate with the minimum degree of procedural formality consistent with the requirements of natural justice”.

The Labour Court also held in the Travelodge case, in referring to Order 15, Rule 13 of the Rules of Superior Courts (S.I. No. 15 0f 1986) which makes provision for the amendment of proceedings initiated in the High Court in which parties are improperly named, 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 stancein 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 that any such application must be considered on the merits of the individual case.

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

The application to amend the name of the respondent was made on the day of the hearing namely on 29th April 2024 which is more than twelve months after the termination date of the complainant’s employment.

It is clear that the application to amend the name of the Employer/Respondent has not been made within the applicable time limits that govern the referral of complaints under Section 41(6) of the Workplace Relation Act 2015.    In the circumstances, I find that I do not have jurisdiction to allow the Complainant to amend or substitute the name of the Employer/Respondent in these proceedings.

Section 39 of the Organisation of Working Time Act 1997 provides that I as the “relevant authority” have certain powers to deal with difficulties arising from a respondent being improperly named in a decision or on a complaint referral form.

Section 39(4) of the Organisation of Working Time Act, 1997 provides the opportunity to a complainant to apply to institute fresh proceedings in the event of having named the wrong employer/respondent.  That section is as follows: -

(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.

In this instant case, the complainant did not make an application pursuant to Section 39(4) of the Organisation of Working Time Act 1997 for leave to institute fresh proceedings against B Hotels t/a A’s Hotel in relation to the matters which are the subject of the instant complaints.

I find that I have no jurisdiction to inquire into these complaints because they have been submitted against the incorrect respondent.  

I am satisfied that the Complainant has incorrectly named the respondent in these proceedings.          I find that there was not an employer/employee relationship between the Complainant and A’s Hotel. Accordingly, I find that I do not have any jurisdiction to enquire into the complaints under the abovementioned enactments against A’s Hotel.

I find that I do not have jurisdiction to allow the Complainant to amend or substitute the name of the Employer/Respondent in these proceedings from the A’s Hotel to B Hotels t/a A’s Hotel.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that as the incorrect employer had been named in the claims referred to the Workplace Relations Commission, I do not have jurisdiction in the matter.

Dated:  7th of June 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words:

Safety, Health and Welfare at Work Act, Employment Equality Act, incorrect respondent named, no jurisdiction.