Complainant

Respondent

Parties

Somy  Thomas

Health Service Executive Hse

Representatives

Irish Nurses and Midwives Organisation

 IBEC.

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-00031200-001

30/09/2019

The complainant submits that she was constructively dismissed from her position as a staff nurse in Beaumont Hospital on 31/3/2019. She had been employed as a senior staff nurse with the Hospital since 28/6/2004.

She contends that the treatment meted out to her by her employer left with no option other than resignation.

She submitted her complaint to the WRC on 30/9/2019.

Incorrect respondent.

The named respondent did not attend.

The complainant’s former employer, Beaumont Hospital, attended and   objected to being substituted as the respondent in this case.

The respondent argues that as the complaint has been brought against the incorrect entity, the complaint must be dismissed. In support of this proposition, they cite Travelodge Management Limited -v- Sylwia Wach EDA1511.

The incorrect naming of the respondent is not inadvertence as claimed by the complainant. The complainant had named the respondent, correctly, in three previous complaints taken against the hospital. It was carelessness not inadvertence. Therefore, it doesn’t satisfy the first test. Should the WRC decide to amend the name of the respondent, the complaint is now statute barred as it was submitted on 30/9/2019 and the application is being made four years after the submission of the complaint and is well out of time.

The respondent submits that an injustice would be done to them were the adjudicator to permit the name change four years on. The respondent refers to the EAT decision of Al Tambraga v Morrissey, UD 36/2011 where the Tribunal held that the power to amend the respondent’s name was qualified by section 39 (4)(b) of the Organisation of Working Time Act 1997 which requires that there must be inadvertence in order to justify the making of the proposed amendment.

The correct name of the respondent was on the contract and on the pay slips.

Discretion to amend does not exist when the complaint is time barred as in the instant case.

The complaint should be dismissed.

Incorrect respondent.

The complainant asked to correct the name of the impleaded respondent as provided for in Sections 39 (2) ,(3), or in the alternative, 39 (4) of the Organisation of Working Time Act 1997.

 The correct respondent is Beaumont Hospital.

The impleading of the incorrect respondent was inadvertence, a slip. The complainant states that she satisfies the two proofs set out in 39 (4) of the Organisation of Working Time Act 1997; one is that the misnaming is due to inadvertence, which is the case in the instant complaint, and the second test is also met as no injustice will be suffered by the respondent in the correction sought.

The complainant relies on Lucy Jackson v Children’s Health Ireland at Crumlin, ADJ-00033525 where the complaint was lodged against HSE- Children’s Health Ireland at Crumlin. The adjudicator permitted the amendment of the respondent to reflect its correct legal title which was Children’s Health Ireland at Crumlin. The adjudicator in that decision based his decision on the High Court Judgment in O’Higgins -v- University College Dublin & Another (2013) 21 MCA wherein Mr Justice Hogan held

: “Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be)” ….

“In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.”

The complainant also submits that Higginsheld that if the rules of the superior courts permit amendment of the pleadings, then that should follow for adjudicative bodies such as the WRC

The complaint was lodged against the HSE on 30/9/2019.

On 11 August 2021 the INMO asked about a date for the hearing and advised that they intended to make an application pursuant to Section’s 39 (2), (3), or in the alternative, 39 (4) of the Organisation of Working Time Act, 1997. The respondent was on notice of their intention to apply to correct the name of the respondent since that date.

The complainant asks that the adjudicator accept their application to substitute the correct respondent for the respondent impleaded in the complaint form.

I am required to decide whether or not it is legally permissible for me to accede to the complainant’s application to substitute the correct respondent in this case for the respondent named incorrectly on the complaint referral form.

The HSE forwarded the complaint form to Beaumont Hospital.  Beaumont Hospital notified the WRC on the 30 October 2019, concerning the hearing scheduled for Wednesday 20 November 2019, that they, Beaumont Hospital, were formerly the employer and that the respondent named in the claim form was incorrect.

The INMO wrote to the WRC on 7 November 2019 advising them of a change of representative but made no reference to the name of the respondent.

The INMO in receipt of the respondent’s letter wrote on 23/1/2020 to state that they would seek to amend the name of the respondent at the next hearing.

 On 28/1/20 the WRC wrote advising the complainant ‘s representative of the option to lodge a fresh complaint against the correct respondent and that agreement to amend the name of the respondent at a hearing was not a given. The INMO did not institute fresh proceedings against the correct respondent though still within the outer statutory time limit provided for in the Act of 1977 for lodging a complaint.

On 11 August 2021 the INMO asked about a date for the hearing and advised that they intended to make an application pursuant to Section’s 39 (2),(3), or in the alternative, 39 (4) of the Organisation of Working Time Act 1997 at such a hearing and stated that  respondent, who is on notice of this claim from the outset, has been appraised of this intention to make this application.

Again on 6/4/22, the INMO wrote stating that they intended to apply to the Adjudication Officer to change the name of the respondent in the proceedings from the “Health Service Executive” to “Beaumont Hospital “at the scheduled hearing on the 9 May 2022. This hearing was postponed at the request of the complainant.

From November 2019 to October 2023, five scheduled hearings were postponed, four of which were at the complainant’s behest and at which the application to correct the name of the respondent could have been submitted.

Beaumont Hospital wrote to the complainant on 14 /10/21 objecting to the naming of Beaumont as the respondent.

Relevant law

Section 39 of the Organisation of Working Time Act,1997 provides as follows:

              “    (4) If an employee wishes to pursue against a person a claim for relief in respect of any matter under an enactment referred to in subsection (2), or the Table thereto, and has already instituted proceedings under that enactment 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 and that relevant authority may grant such leave to the employee notwithstanding that the time specified under the said enactment 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.

                             (5) References in subsection (4) to the institution of proceedings in respect of any matter under an enactment referred to in subsection (2), or the Table thereto, shall be construed as including references to the presentation of a complaint, or the referral of a dispute, in respect of the said matter, to the relevant authority concerned.

 I accept that the correct name of the respondent was on the complainant’s pay slip and contract.

I accept that the complainant had lodged three previous complaints against the correctly named respondent.

The complainant chose not to institute fresh proceedings under the Unfair Dismissals Act 1977 against the correct employer.

The authorities cited by the complainant refer to the misnaming of the employer as opposed to substituting the employer for a different legal entity. HSE was not the employer in the instant case. In the case cited, what was involved was the removal of an acronym- HSE- preceding the correct employer.

The complainant submits that I am bound by the decision of O’Higgins -v- University College Dublin & Another (2013) 21 MCA where the High Court faced with a request to amend the employer’s name, held that a decision to decline jurisdiction would clearly amount to a “grossly disproportionate response” .

 The High Court agreed to amend the employer’s name to reflect its correct legal title.

In that decision when arguing for equivalence, Hogan J was referring to the rules of the Superior Court

The Labour Court in Travelodge Management Limited -v- Sylwia Wach EDA1511, a case taken under the Employment Equality Act, 1998, looked beyond the application of O.15 r.13 of the Rules of the Superior Court to that particular statute. They looked at how the application of O.15 r.13 of these Rules has been interpreted by the Courts when asked to accept an amendment to the pleadings as for example to add or subtract a defendant. The Labour Court in Travelodge took their guidance from the case of Sandy Lane Hotel Limited v Times Newspapers Limited [2011] 2 I.L.R.M 139. They observed that in the course of his judgment in the latter case, the President of the High Court conducted an extensive and instructive analysis of the case law on the application of O.15 r 13.

The Labour Court in coming to their decision in Travelodge noted what they believed to be the key and binding principles governing the amendment of or substitution of a respondent as set out in Sandy Lane Hotel Limited v Times Newspapers Limited. The Labour Court stated as follows:

“in the course of his judgment the President conducted an extensive and instructive analysis of the case law on the application of O.15 r 13.

Having considered the judgment of Geoghegan J. in Kennemerland Group v Montgomery [2000] 1 I.L.R.M. 370, the President referred to a long-established principle that a court will not add a defendant under Ord.15, r.13 if the action against that party is quite clearly statute barred

Order 15, r.13 concerns the procedure for adding, substituting or striking out a party. The names of any parties may be added, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter”.

The Labour Court in Travelodge went on to note that

“From its reading of that judgment 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. It appears to the Court that even if it had a discretion analogous to that available to the Superior Courts under O.15 r13 of the Rules of the Superior Courts, (and the Court makes no such finding) it would not be appropriate to exercise that discretion in this case. The applicable statutory time-limit prescribed is that prescribed by s.77(5) of the Act. The section provided that a complaint under the Act must be referred to the Equality Tribunal within a period of six months from the occurrence of the event giving raise to the complaint, with a possibility of an extension of a further six months for reasonable cause shown.”

The Court concluded that they could not substitute the correct respondent for the respondent against which the case was taken.

In the instant case, the dismissal occurred on 31 3/2019. The application to amend the respondent’s name was made over four years after the date of the dismissal. The application is clearly outside of the limits provided for in the act of 1977. I have not been asked to amend the name but to substitute one employer for the incorrectly named respondent.

 It is not a question of a misstated name but of an entirely different employer.

I accept that the respondent that appeared at the hearing on the 7/11/23 was the complainant’s employer at the material time and was aware of the complainant’s complaints to the WRC from 2019.

The complainant chose not to institute fresh proceedings against the correct respondent and passed up on four opportunities over a period of four years to make an application to the WRC to substitute the correct respondent for the incorrectly impleaded respondent.

The requirement to be no less restrictive than the superior courts is not detached from the authorities assembled on the issue of substituting a respondent.

 Based on the evidence and the authorities. I find, therefore, that I do not have the jurisdiction under Section 39 of the Organisation of Working Time Act 1977 to change that name of the Respondent in these proceedings to that of the complainant’s former employer.

I find that I do not have jurisdiction to hear this complaint.

I find that I do not have jurisdiction to hear this complaint.

Incorrectly named respondent.