Complainant

Respondent

Parties

Brid  Ni Cheallaigh Loftus

Miklos Penzes  

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

  Lally Solicitors

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-00047297-001

23/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00047297-002

23/11/2021

The complainant submits that she was unfairly dismissed and that she did not receive terms and conditions of employment.

Preliminary Issue:

The representative for the complainant Ms Lally gave evidence that she erroneously entered an incorrect name for the respondent when the complaint form was submitted 23/11/2021 and this was never raised as an issue by the respondent. She said that she was applying under Section 39(2) of the Organisation of Working Time Act 1997 that the title of the respondent be amended by the WRC so as to state correctly the name of the employer concerned as Miklos Penzes and not Lettermore Health Centre.  She submitted that Miklos Penzes is a Medical Doctor at Lettermore Health Centre together with the correct Employer Number was named on the WRC Application Form together with full contact details.  A copy of the Complaint was sent by the WRC to Miklos Penzes and he acknowledged receipt of the Complaint on the 06/12/2021 and he consented to communication.  At no point did he raise issue with the details of the Employer. Miklos Penzes further indicated his willingness to engage in mediation in relation to the matter.  It was further submitted that Miklos Penzes at all times was aware of the complaint, acknowledged receipt of the same and was actively involved to resolve the matter and it was referred to hearing. It was submitted that there had been a misstatement in relation to the name of the Employer which was due to an administrative and clerical error whereby the address of the practice and place of employment was inserted in place of Miklos Penzes. 

Due to the fact that all correspondence and documentation has been sent through to the correct employer and he has replied to the same and indeed engaged in relation to this matter with solicitor representation, it was submitted that the complainant did not believe that the error has in any way caused any prejudice whatsoever to the Respondent Miklos Penzes as he has been given every opportunity to be heard.  Under the Terms of Employment Information Act the onus is on the respondent to identify themselves and breaches accordingly should not allow the respondent to benefit. 

Substantive Issue:

The complainant commenced employment on 12/11/2019 as a medical secretary/receptionist and her employment ceased without notice on 04/06/2021.  The complainant worked 10 hours weekly on Mondays and Tuesdays.  Owing to covid-19, the dynamic of the practice changed and the complainant did whatever cover was required and made herself available for extra cover including evenings and public holidays.  When the complainant was asked by Ms O Donnell to do extra hours Dr Penzes told the complainant there was no need to inform him of these additional hours.  At all times Dr Penzes advised the complainant her work was flawless and that he did not like her personality.  The work environment which the complainant endured from Dr Penzes included him slamming keys on counter, walking away when the complainant was speaking, swearing in front of her as well as threatening and angry behaviour towards her. 

It was submitted that it was standard practice that time in lieu would be given for working additional hours and these were also given to her colleague Ms O’Donnell.  Owing to covid-19 the complainant was owed 84.5 hours for additional hours worked.  The complainant was told to contact the respondent’s accountant about it and then the accountant told her that he needed to speak to Dr Penzes about it.  On 10/06/2021 at 21:10pm the complainant received an email stating

“it is unfortunate that you couldn’t get back to me after speaking with the accountant.  Therefore I have issued you your final cheque as per initial format.  I would like to thank you again for all your work in the practice” .

On 10/06/2021 the complainant emailed Dr Penzes at 21:25 stating she did not get back to him as the accountant needed to speak to Dr Penzes.  AT 23:05 the complainant received another email from Dr Penzes

“Thank you for your email.  As I told you I have issued your final cheque and I have left it at the reception.  Unfortunately, it is too late to change anything and I am sorry for that.  You can confirm this with Mr (name), my accountant.  There is no need for you to come into the office on Monday. We can meet outside the surgery for a chat if you insist. The part-time receptionist job has been advertised on Galway Advertiser and on Radio na Gaeltachta. You are welcome applying for the job and leaving your cv at the surgery if you are interested. You may have a job interview and our relationship to be based from there on”.

The complainant was shocked to receive her notice at 11:05 on 10/06/2021 without any notice.  The complainant wrote to Dr Penzes on 29/06/2021 asking for a reason for the dismissal and received an email on 29/06/2021 where Dr Penzes advised

“I am really sorry you misunderstood my email you mentioned.  I advised you not to come into the office on Monday to discuss your request regarding your payment because you started your annual leave that day as your requested, and Mondays are busy as you are aware of.  So I deferred our conversation but your job is still available and I am looking forward to seeing you back.  The part-time job has been advertised for Wed, Thurs and Fri but your job on Monday and Tuesdays are still available.  I hope you are enjoying your annual leave and I would be grateful if you could meet me for that conversation. Kind regards Miklos Penzes”

and also that Dr Penzes had ceased payment for her on revenue on 04/06/2021.

The complainant submits that she was dismissed without fair procedure because she asked for time off in lieu for hours worked.  The complainant never received any warnings nor was she advised that her job was at risk and never received any grievance or disciplinary procedures.  The respondent suggested that they meet “outside the surgery for a chat if you insist” and this was the only opportunity given to discuss her dismissal.  The complainant did not receive any minimum notice and the dismissal was unfair as no procedures were involved.  The complainant requested a copy of her file and received copy of pay slips, and her own medical records from when she was a child.  The complainant received payment for the overtime that she worked when she had requested and had previously been given time in lieu.  The complainant commenced employment on 13/01/2022 and therefore her losses are from 04/06/2021 until she secured her new position.

The complainant’s evidence was that she was contacted and asked about working part-time with Dr Penzes and decided to do 10 hours weekly and it was very nice working there and they were very accommodating.  She noticed changes in the behaviour of Dr Penzes after a while and felt she was treated differently.  She found that he would talk over her and told her that she spoke too loudly and that he completely blanked her and isolated her.  On 25/05/2021 the medical IT system was changing, and they were running off two systems and Dr Penzes said he was leaving.  She told him there 4 patients to be seen and he said stop telling me how to do my job.  The complainant said that Ms O’Donnell was there as well and Dr Penzes ridiculed the complainant in front of others that day and the following week they were doing vaccinations and directing people and Dr Penzes would ignore the complainant and ask Ms O’Donnell questions instead and another occasion he shouted “did you contact Mr X” and the complainant could not answer him as she was talking to a patient and he said “did you?” and slammed down his keys at the desk and treated her differently. 

In evidence the complainant said that she had kept a diary and spreadsheet with the extra hours she had worked.  Dr Penzes knew about this but said he did not need to know about the extra hours she worked.  She said in her evidence that she was taking holidays and she explained to the accountant about using her hours in lieu and it was great to have the flexibility.  The accountant said to her “haven’t you finished up” and then the accountant told her said she needed to speak with Dr Penzes.  The complainant said she was flabbergasted and would have loved to have found out what she did that was wrong and said that Irish is her first language but that she did not believe that there was any language barrier issues between her and Dr Penzes. 

With regards to efforts to mitigate her loss, the complainant said that she commenced a new job on 13/01/2022 and has suffered no loss since then.  She said when this happened, she was so floored and devastated and sent out her cv and then got a job.  She confirmed that she did not register with agencies but that she had applied for jobs but was very traumatised from the experience.  She said that this all came out of the blue and she could not believe that her employment was terminated.

The evidence of Ms O’Donnell was that Dr Penzes contacted her about employment in late October as two secretaries were leaving.  She said there was always two secretaries and after a few weeks she asked could she get someone else to help and Dr Penzes said yes do what you need to do.  Ms O’Donnell said that she approached the complainant and begged her to come to work for Dr Penzes and the complainant initially worked 10 hours and that Dr Penzes said he did not want to be involved in the interview or anything.  She said the first few weeks the relationship of Dr Penzes and the complainant was fine but that she noticed he was more abrupt with the complainant. Ms O’Donnell said the complainant’s work was flawless and that she was a perfectionist, and that Dr Penzes did not seem to like the complainant.  After the situation where the complainant called him a bully he told Ms O’Donnell that he was going to take care of the situation and when Ms O’Donnell asked what he meant, he did not answer.  She said that because of holidays, there was a girl trained for holiday cover and she was there when the complainant went on holidays and that Ms O’Donnell saw the advertisement.  In response to the question about time in lieu, Ms O’Donnell said that the complainant always told Ms O’Donnell about holidays and there was never an issue with holidays as Dr Penzes would say that it was fine and it was common practice to take time in lieu and that Ms O’Donnell took time in lieu also.  She said that when the IT was down on 25/05/21 it was very quiet and Mr X was ignoring the complainant.  He would say to the witness “Imelda dear” whereas his behaviour was so different to the complainant.  On Tuesday 08/06/21 he called Ms O’Donnell into the office and said that he was going to take care of this and she did not understand what he meant.  Ms O’Donnell said that Dr Penzes said that the complainant’s work is flawless and she is too loud.  Ms O’Donnell gave evidence that she never got a contract until 6 months in and she did one up for herself and that she left the employment on 16/07/2021.  She said that she found Dr Penzes’ behaviour outrageous and that it could be erratic.  She said that there was a girl training up and the practice nurse left shortly afterward.  Dr Penzes told Ms O’Donnell that he was sorry to see Ms O’Donnell leave.

The respondent did not attend the hearing.

On 06/12/2021 Dr Penzes, advised the WRC inter alia

“Please accept my consent for further communication on the following email address: (email) …I reply as follows to the complaints made by Brid Ni Cheallaigh to the WRC. I acknowledge that Ms Brid Ni Cheallaigh was employed for ten hours a week by me from 12th November 2019 l found her work for the most part to be satisfactory. However there were occasions where her manner was slightly abrupt and loud. l did on more than one occasion have to remind her that one must be very discreet in a doctor's surgery. It is important to create a quiet and calm atmosphere in a doctor‘s surgery as in general patients who attend are already stressed. I do not recall the incidents she refers to in her statement. l did have to correct her on one occasion as she had not locked the main entrance door, during lunch break, as a result of which a patient entered into the surgery. Naturally enough l found this interruption a little disturbing and did explain to her that the surgery door needed to be locked during lunch in order to allow everyone to have a break. l deny that I have ever sworn at Ms Cheallaigh or in any way insulted her. I never knowingly hung up the phone while she was talking to a patient. However l may have been dealing with a patient myself in my surgery when she phoned me and naturally this patient would have been my first priority. l deny that I have ever used threatening and angry behaviour towards her. With regards to Ms Cheallaigh's comments in relation to the payment of her overtime I wish to state that l very much appreciated her assistance and her willingness to help at such a stressful time. l was so busy with the vaccination programme that l did not have time to consider her proposal fully. Once l had some time to consider it I discussed the matter with my accountant. My accountant did have some reservations about this method of payment. Furthermore l realised that Ms Cheallaigh would have been absent from the surgery for a period of two months or more. l then realised that l would have to employ a replacement for her during this period. She did not consider that the time to be taken for "time in lieu" would have to be at the discretion of the employer‘ l was clearly taken aback at the prospect of hiring and training a temporary replacement secretary during such a busy time at the surgery. I knew I would have great difficulty in recruiting another secretary on a temporary basis in the area‘ In any event having discussed the matter with my accountant l wrote to Ms Challaigh by way of email on July 8th last agreeing to fulfil her request. l made it clear to Ms Cheallaigh that herjob had not been readvertised. The advertisement related to a position for Wednesday, Thursday and Friday days on which Ms Cheallaigh was not available. I regret the position Ms Cheallaigh has taken however l reiterate that her position was offered to her on July 8th last. To date she has not responded to my offer. Yours sincerely, Miklos Penzes”.

On 15/05/23 the representative for Miklos Penzes advised the WRC by email

“…We refer to the above matter. Please be advised that we wish to come off record in relation to the above matter. We will not be attending the next hearing date in June.”

On 08/06/23 at 10:29 the representative for Miklos Penzes who had come off record on 15/05/2023 at 16:46 advised the WRC that

“…You might please note that we have already confirmed to you that we do not represent the Respondent in these proceedings. We have already written to you confirming this.  You are now harassing our client in respect of this matter. Our client is not party to the proceedings. It is not acceptable that you send emails to our client inviting him to attend a hearing to which he is not party. Furthermore it is not acceptable that you are not contactable by phone. This is a serious matter and requires immediate attention. Please desist from contacting our client again as we have previously stated and it is something you should be fully aware of Mr Dr Penzes is not a party to the proceedings. Please outline where you have the authority to contact Dr Penzes as he is not the Respondent in the proceedings. If we do not hear from you today to clarify matter we will be proceeding to take this matter to a more senior authority.”

On 08/06/2023 at 12:18Miklos Penzes emailed the WRC

“I would like to withdraw my consent to be contacted by the WRC as advised by my solicitor Ms A.”

Preliminary Issue:

The complainant submitted a request to change the name of the respondent from Lettermore Health Centre to Miklos Penzes.  I note that in an email to the WRC on 06/12/2021 Dr Penzes, advised inter alia

“Please accept my consent for further communication on the following email address: (email address)@gmail.com I am willing to participate in mediation. I reply as follows to the complaints made by Brid Ni Cheallaigh to the WRC. I acknowledge that Ms Brid Ni Cheallaigh was employed for ten hours a week by me from 12th November 2019.”

On 15/05/23 the representative for Miklos Penzes came off record and advised that they would not be attending the hearing scheduled for June and despite having come off record, advised the WRC on 08/06/2023 to stop harassing their client and then later that day Miklos Penzes advised the WRC he was withdrawing consent to receive correspondence by email.

The complainant requested that the name of the respondent be changed owing to an administration error.  The named respondent on the complaint form, received by the WRC on 21/11/2021, was Lettermore Health Centre and in the section of the form that requests the respondents title, firstname, surname, position held it details: Mr, Miklos, Penzes, Doctor.  The complainant submits that the employer’s number provided on the complaint form is the employer number for Miklos Penzes and the complainant submitted that they wished the respondent name to be changed from Lettermore Health Centre to Miklos Penzes.  The respondent did not attend on the day.

It for me to decide, therefore, whether it is permissible to substitute the name of the Lettermore Health Centre for Miklos Penzes as the Respondent in these proceedings.

Under 39.—(2)

(2) A decision (by whatever name called) of a relevant authority under this Act or an enactment or statutory instrument referred to in the Table to this subsection that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by any party concerned, be amended by the authority so as to state correctly the name of the employer concerned or the other material particular.

The Courts have held 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”.

In Travelodge case the Labour Court made reference to Order 15, Rule 13 of the Rules of Superior Courts (S.I. No. 15 of 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 stance in relation to the substitution of parties that is available in the High Court pursuant to that rule.”

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.   I further note the decision in Capitol Foods Emporium v Walsh where Mr Justice Barrett said:

“Quod approbo non reprobo. (‘That which I approve, I cannot disapprove’)….The complainant [or, in the present case, Capital Food Emporium Limited] cannot blow hot and cold; he [it] cannot approbate and then reprobate; he [it] cannot have it both ways”. 

I note that the complainant had received pay slips detailing Miklos Penzes as the employer and what appears to be the correct respondent’s name but I also the complainant’s evidence that she had not received terms and conditions wherein the respondent’s name might have been detailed to avoid any confusion on the matter of the correct named respondent.  I also note that Miklos Penzes confirmed his agreement to receive correspondence, albeit later withdrawn, and confirmed that the complainant was his employee and was on notice that the complaint was received by the WRC on 23/11/2021.  Taking into consideration all submissions and evidence I, therefore, find there is jurisdiction to hear the complaint against the respondent Miklos Penzes and accordingly amend the name of the respondent to that of Miklos Penzes.

Substantive Issue:

The complainant submits that her employment was terminated unfairly by the respondent without notice and without fair procedures on 10/06/2021. The respondent as set out in the preliminary issue above did not attend the hearing and did not give evidence. I am satisfied that the respondent is on notice of the hearing dates as per the various correspondence either received from them or through their representative.  I therefore, only have the evidence of the complainant to reply on.

Section 1 of the Act defines dismissal in the following manner

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

The dismissal of an employee, pursuant to Section 6 of the Unfair Dismissals Act 1997 as amended, shall be deemed for the purposes of this Act to be an unfair dismissal unless, having regard to all the circumstances, there are substantial grounds justifying the dismissal and the burden of proof is firmly on the Respondent.

The respondent did not attend the hearing and gave limited submissions regarding whether there was a dismissal and if there was, regarding the fairness or otherwise of the dismissal. The complainant gave credible evidence that she requested to utilise time in lieu which had been utilised before and was referred to the accountant and it appeared that the accountant was surprised the complainant was still an employee.  It appears that some extraordinary correspondence was then received from Miklos Penzes including on 10/06/2021

“Thank you for your email.  As I told you I have issued your final cheque and I have left it at the reception.  Unfortunately, it is too late to change anything and I am sorry for that.” 

When the complainant on 29/06/2021 requested a reason for her dismissal, Dr Penzes seemed to retreat from his decision and suggested that the complainant’s employment was not terminated.

“I am really sorry you misunderstood my email you mentioned.  I advised you not to come into the office on Monday to discuss your request regarding your payment because you started your annual leave that day as your requested, and Mondays are busy as you are aware of.  So I deferred our conversation but your job is still available and I am looking forward to seeing you back.”

I have heard the complainant’s evidence and note her upset and shock and have read the submissions including that the respondent would appear to have terminated the complainant on the revenue website on 04/06/2021.  Taking all of that into consideration it not clear how the complainant could have in anyway “misunderstood” the respondent’s.  I am satisfied, therefore,  that the complainant was dismissed.   

Cassidy v Shannon Castle Banquets and Heritage Ltd [2000] ELR 248 and Mooney v An Post 4 IR 288 outlined the importance of fair procedures. No procedures were afforded to the complainant in the termination of her employment.  The complainant and indeed the witness Ms O’Donnell had used time lieu on previous occasions and if this now caused difficulties for the respondent a reasonable employer would engage in a conversation with employees.  This did not happen.  For reasons unknown the respondent terminated the employment of the complainant without giving her any opportunity to respond to any dissatisfaction that it may have been suggested that there was.  It is important to also note the credible evidence of Ms O’Donnell that the complainant’s work was excellent. In all the circumstances, I find that the dismissal was unfair and the complaint is well founded.

I note that the complainant secured alternative employment and incurred no losses from 30/01/2022 as a result of her dismissal.  I have decided that reinstatement or re-engagement of the Complainant is not a practical option in this case and that compensation is the appropriate redress.  The complainant gave evidence of her efforts to mitigate her loss.  In Sheehan v Continental Administration Co Ltd. 858/1999 the tribunal held that

“A claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work”

I find that the complainant’s efforts do not completely satisfy this standard and therefore, I award the complainant €3,400 which is an award of 20 weeks.

Preliminary Issue:

The representative for the complainant Ms Lally gave evidence that she erroneously entered an incorrect name for the respondent when the complaint form was submitted 23/11/2021 and this was never raised as an issue by the respondent. She said that she was applying under Section 39(2) of the Organisation of Working Time Act 1997 that the title of the respondent be amended by the WRC so as to state correctly the name of the employer concerned as Miklos Penzes and not Lettermore Health Centre.  She submitted that Miklos Penzes is a Medical Doctor at Lettermore Health Centre together with the correct Employer Number was named on the WRC Application Form together with full contact details.  A copy of the Complaint was sent by the WRC to Miklos Penzes and he acknowledged receipt of the Complaint on the 06/12/2021 and he consented to communication.  At no point did he raise issue with the details of the Employer. Miklos Penzes further indicated his willingness to engage in relation to the matter.  It was further submitted that Miklos Penzes at all times was aware of the complaint, acknowledged receipt of the same and was actively involved to resolve the matter and it was referred to hearing. It was submitted that there had been a misstatement in relation to the name of the Employer which was due to an administrative and clerical error whereby the address of the practice and place of employment was inserted in place of Miklos Penzes. 

Due to the fact that all correspondence and documentation has been sent through to the correct employer and he has replied to the same and indeed engaged in relation to this matter with solicitor representation, it was submitted that the complainant did not believe that the error has in any way caused any prejudice whatsoever to the Respondent Miklos Penzes as he has been given every opportunity to be heard.  Under the Terms of Employment Information Act the onus is on the respondent to identify themselves and breaches accordingly should not allow the respondent to benefit. 

Substantive Issue:

It was submitted that the terms of the act set out the basic terms which the employer is required to furnish to the employee after commencement of employment.  The complainant commenced employment on 12/11/2019 as a medical secretary/receptionist and the respondent failed to furnish any terms and conditions to her.  On 03/08/2021 the complainant requested a copy of her files and no contract was provided or confirmed that any existed. The complainant’s gross weekly was €170 and therefore, she is seeking four weeks remuneration in relation to same.

The complainant give evidence that she did not receive an employment contract or terms of employment.

Ms O’Donnell gave evidence that she never got a contract until 6 months in and she did one up for herself.

The respondent did not attend the hearing.

On 06/12/2021 Dr Penzes, advised the WRC inter alia

“Please accept my consent for further communication on the following email address: (email) …I reply as follows to the complaints made by Brid Ni Cheallaigh to the WRC. I acknowledge that Ms Brid Ni Cheallaigh was employed for ten hours a week by me from 12th November 2019 l found her work for the most part to be satisfactory. However there were occasions where her manner was slightly abrupt and loud. l did on more than one occasion have to remind her that one must be very discreet in a doctor's surgery. It is important to create a quiet and calm atmosphere in a doctor‘s surgery as in general patients who attend are already stressed. I do not recall the incidents she refers to in her statement. l did have to correct her on one occasion as she had not locked the main entrance door, during lunch break, as a result of which a patient entered into the surgery. Naturally enough l found this interruption a little disturbing and did explain to her that the surgery door needed to be locked during lunch in order to allow everyone to have a break. l deny that I have ever sworn at Ms Cheallaigh or in any way insulted her. I never knowingly hung up the phone while she was talking to a patient. However l may have been dealing with a patient myself in my surgery when she phoned me and naturally this patient would have been my first priority. l deny that I have ever used threatening and angry behaviour towards her. With regards to Ms Cheallaigh's comments in relation to the payment of her overtime I wish to state that l very much appreciated her assistance and her willingness to help at such a stressful time. l was so busy with the vaccination programme that l did not have time to consider her proposal fully. Once l had some time to consider it I discussed the matter with my accountant. My accountant did have some reservations about this method of payment. Furthermore l realised that Ms Cheallaigh would have been absent from the surgery for a period of two months or more. l then realised that l would have to employ a replacement for her during this period. She did not consider that the time to be taken for "time in lieu" would have to be at the discretion of the employer‘ l was clearly taken aback at the prospect of hiring and training a temporary replacement secretary during such a busy time at the surgery. I knew I would have great difficulty in recruiting another secretary on a temporary basis in the area‘ In any event having discussed the matter with my accountant l wrote to Ms Challaigh by way of email on July 8th last agreeing to fulfil her request. l made it clear to Ms Cheallaigh that herjob had not been readvertised. The advertisement related to a position for Wednesday, Thursday and Friday days on which Ms Cheallaigh was not available. I regret the position Ms Cheallaigh has taken however l reiterate that her position was offered to her on July 8th last. To date she has not responded to my offer. Yours sincerely, Miklos Penzes”.

On 15/05/23 the representative for Miklos Penzes advised the WRC by email

“…We refer to the above matter. Please be advised that we wish to come off record in relation to the above matter. We will not be attending the next hearing date in June.”

On 08/06/23 at 10:29 the representative for Miklos Penzes who had come off record on 15/05/2023 at 16:46 advised the WRC that

“…You might please note that we have already confirmed to you that we do not represent the Respondent in these proceedings. We have already written to you confirming this.  You are now harassing our client in respect of this matter. Our client is not party to the proceedings. It is not acceptable that you send emails to our client inviting him to attend a hearing to which he is not party. Furthermore it is not acceptable that you are not contactable by phone. This is a serious matter and requires immediate attention. Please desist from contacting our client again as we have previously stated and it is something you should be fully aware of Mr Dr Penzes is not a party to the proceedings. Please outline where you have the authority to contact Dr Penzes as he is not the Respondent in the proceedings. If we do not hear from you today to clarify matter we will be proceeding to take this matter to a more senior authority.”

On 08/06/2023 at 12:18Miklos Penzes emailed the WRC

“I would like to withdraw my consent to be contacted by the WRC as advised by my solicitor Ms A.”

Preliminary Issue:

The complainant submitted a request to change the name of the respondent from Lettermore Health Centre to Miklos Penzes.  I note that in an email to the WRC on 06/12/2021 Dr Penzes, advised inter alia

“Please accept my consent for further communication on the following email address: (email address)@gmail.com I am willing to participate in mediation. I reply as follows to the complaints made by Brid Ni Cheallaigh to the WRC. I acknowledge that Ms Brid Ni Cheallaigh was employed for ten hours a week by me from 12th November 2019.”

On 15/05/23 the representative for Miklos Penzes came off record and advised that they would not be attending the hearing scheduled for June and although having come off record, advised the WRC on 08/06/2023 to stop harassing their client and then later that day Miklos Penzes advised the WRC he was withdrawing consent to receive correspondence by email.

The complainant requested that the name of the respondent be changed owing to an administration error.  The named respondent on the complaint form, received by the WRC on 21/11/2021, was Lettermore Health Centre and in the section of the form that requests the respondents title, firstname, surname, position held it details: Mr, Miklos, Penzes, Doctor.  The complainant submits that the employer’s number provided on the complaint form is the employer number for Miklos Penzes and the complainant submitted that they wished the respondent name to be changed from Lettermore Health Centre to Miklos Penzes.  The respondent did not attend on the day.

It for me to decide, therefore, whether it is permissible to substitute the name of the Lettermore Health Centre for Miklos Penzes as the Respondent in these proceedings.

Under 39.—(2)

(2) A decision (by whatever name called) of a relevant authority under this Act or an enactment or statutory instrument referred to in the Table to this subsection that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by any party concerned, be amended by the authority so as to state correctly the name of the employer concerned or the other material particular.

The Courts have held 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”.

In Travelodge case the Labour Court made reference to Order 15, Rule 13 of the Rules of Superior Courts (S.I. No. 15 of 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 stance in relation to the substitution of parties that is available in the High Court pursuant to that rule.”

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.   I further note the decision in Capitol Foods Emporium v Walsh where Mr Justice Barrett said:

“Quod approbo non reprobo. (‘That which I approve, I cannot disapprove’)….The complainant [or, in the present case, Capital Food Emporium Limited] cannot blow hot and cold; he [it] cannot approbate and then reprobate; he [it] cannot have it both ways”. 

I note that the complainant had received pay slips detailing Miklos Penzes as the employer and what appears to be the correct respondent’s name but I also the complainant’s evidence that she had not received terms and conditions wherein the respondent’s name might have been detailed to avoid any confusion on the matter of the correct named respondent.  I also note that Miklos Penzes confirmed his agreement to receive correspondence, albeit later withdrawn, and confirmed that the complainant was his employee and was on notice that the complaint was received by the WRC on 23/11/2021.  Taking into consideration all submissions and evidence I, therefore, find there is jurisdiction to hear the complaint against Miklos Penzes, that he has not been prejudiced by same and accordingly amend the name of the respondent to that of Miklos Penzes.

Substantive Issue:

The complainant submits that she did not receive terms of employment.  The respondent as set out in the preliminary issue above did not attend the hearing and did not give evidence. I am satisfied that the respondent is on notice of the hearing dates as per the various correspondence either received from them or through their representative.  I therefore, only have the evidence of the complainant to reply on.

3.—(1) An employer shall, not later than one month after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment…

The complainant commenced employment on 12/11/2019 and asserted that the respondent did not provide her with a statement in writing. I note that the complainant requested a copy of her file including any terms of conditions and she received copy of pay certs.  I note also that the respondent did not attend and taking into consideration all the evidence and submissions, I find that no statement was provided to the complainant, including a statement of core terms.  I find that the complaint is well founded and award the complainant €680.

CA-00047297-001

I find that the dismissal was unfair and the complaint is well founded and award the complainant €3,400.

CA-00047297-002

I find that the complaint is well founded and award the complainant €680.

Dismissal, respondent, terms and conditions