Complainant

Respondent

Parties

Lawrence Cassidy

St Vincent’s University Hospital

Representatives

Joseph Ateb, SIPTU

Emily Maverley, IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00061317-001

31/01/2024

In a submission provided in advance of the hearing, Ms Maverley said that Mr Cassidy is not an employee of St Vincent’s Hospital and that he is employed by a sub-contractor, known as Elis.

At the commencement of the hearing, on behalf of Mr Cassidy, Mr Ateb said that an error had been made in the naming of the employer.  Mr Ateb asked for leave, in accordance with s.39(4) of the Organisation of Working Time Act 1997, to submit this complaint against the correctly named respondent.

In his submission, Mr Ateb included a copy of the complainant’s contract of employment, which shows that he commenced work on October 13th 1997 with Spring Grove Services (Ireland) Limited.  He has been assigned since then to a role as a general operative in St Vincent’s Hospital.  On some unknown date, the name of Mr Cassidy’s employer changed to Elis Textile Services Limited.  This is the employer’s name on copies of Mr Cassidy’s payslips submitted in preparation for the hearing.  I understand that Elis Textile Services Limited was formerly known as Berendsen Ireland Limited and that it is a subsidiary of Berendsen Ireland Holdings Limited, whose ultimate parent is Elis SA, incorporated in France.

The Relevant Law

Section 39(4) of the Organisation of Working Time Act 1997, provides that, in certain circumstances, an adjudication officer may permit an employee who has incorrectly named their employer on a complaint form, to submit the complaint against the correctly named employer. 

(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.

Subsection 2, which is referred to in the subsection (4) above, refers to “this Act,” being the Organisation of Working Time Act 1997. 

Findings

To permit Mr Cassidy to bring his complaint against the correct respondent without falling foul of the time limit at s.41(6) of the Workplace Relations Act 2015, I am required to find that his error was due to inadvertence.  The Oxford English Dictionary defines “inadvertence” as “failure to observe or pay attention to.”  Considering its powers under s.39, the former Employment Appeals Tribunal (EAT), in its decision in Jeevanham Al Tambraga v Orna Morrissey & Killarney Avenue Hotel[1], stated, 

“The majority acknowledge that s.39 of the Organisation of Working Time Act 1997 gives certain scope to the Tribunal for amendment of the name of the employer.  Such power is qualified quite significantly in s39(4)(b) of such section noting 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.” 

It is my view that inadvertence is adequate to explain the reason that this complaint was submitted against St Vincent’s Hospital instead of Elis Textile Services Limited.  Mr Cassidy has worked in St Vincent’s Hospital for 27 years and this gives him a definite connection with the hospital.  The incident that led him to make a complaint under the Organisation of Working Time Act occurred on the Hospital’s premises. The company he was employed by from the start of his employment changed its name, and it appears that a further name-change occurred before he was employed by his current employer. 

Taking my guidance from the former EAT, I find that, due to inadvertence, a mistake or an oversight, the complainant named the wrong employer on his complaint form and I grant leave to him to submit this complaint against his correctly-named employer, notwithstanding that the time limit at s.41(6) of the Workplace Relations Act 2015 has expired.

I have established that the name of the complainant’s employer is Elis Textile Services Limited.  As he has named St Vincent’s Hospital on the complaint form, I decide that this complaint is not well founded.

I grant leave to the complainant to submit this complaint against his correctly named employer.

Respondent wrongly named, section 39(4) of the Organisation of Working Time Act 1997