Complainant

Respondent

Parties

Desmond  Murphy

Ward Personnel Limited

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

 No Appearance

Act

Complaint/Dispute 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-00050084-001

28/04/2022

The Complainant was employed by the Respondent from 15th November 2021. His gross pay per week was €845.80. On the 1st March 2022 he was temporarily laid off by the Respondent. The Complainant commenced employment with a new employer on the 23rd March 2022. The Complainant claimed that four public holidays fell during the thirteen-week period of layoff, two during the period between the 1st March 2022 and the 23rd March 2022 and that he had an entitlement to public holiday pay for the public holidays which fell within the relevant period.

Summary of the Complainant’s Evidence:

The Complainant stated that his complaint related to his entitlement to public holiday pay. The Complainant gave evidence that he was temporarily laid off by the Respondent on the 1st March 2022 and that he had an entitlement to public holiday pay for the first thirteen weeks of layoff. The Complainant stated that the following public holidays fell within the relevant period: 17th March 2022, 18th March 2022, 18th April 2022 and the 2nd May 2022.

The Complainant commenced employment with the Respondent on the 15th November 2021. He was employed as a “snagger” working on a building site at Kinsaley House with O’Flynn Construction Company. The Complainant worked for two hours and then was temporarily laid off from his employment on the 1st March 2022. The Complainant stated that he was informed by the Respondent that work was coming in all the time and that they would be in contact with him.

A week passed and there was no further communication from the Respondent therefore the Complainant applied for Job Seekers Benefit. The Department of Employment Affairs and Social Protection advised the Complainant that it required documentation from the Respondent confirming that the Complainant had been temporarily laid off. On the 11th March 2022 Deirdre Cooke, Payroll Specialist with the Respondent emailed the Complainant the request form stating as follows:

Temporary Lay-Off Form

Desmond,

Please find attached the temporary lay off form that you requested.

Let me know if I can be of any further assistance.

Kind Regards,

Deirdre Cooke

Payroll Specialist

The Complainant acknowledged that the form attached to the email stated that he was laid off on the 28th February 2022 but stated that that date was incorrect. The Complainant gave evidence that while his last full day of work was on the 28th February 2022 and he worked for two hours on the 1st March 2022 before being laid off.

The Complainant gave evidence that he commenced employment with a new employer on the 23rd March 2022.

The Complainant submitted a screen shot from his MYACCOUNT on the Revenue website (www.ros.ie) which confirmed the following as his start date and date of leaving with the Respondent:

Ward Personnel Ltd

(09756383P)

Employment ID EMPID2100815

Start date                         15/11/2021

Date of leaving               15/04/2022

The Complainant brought his complaint against Ward Personnel but it was acknowledged by the Complainant at the hearing that the Revenue website screen shot identified the employer as Ward Personnel Ltd and that the name Ward Personnel Ltd appeared on the company stamp on the form sent to the Department of Employment Affairs and Social Protection. The Complainant asked that the name of the Respondent be changed to include “Limited”.

The Respondent did not attend the scheduled hearing of this complaint.  Notice of the hearing arrangements was sent to the Respondent on the 14th December 2022. Having carefully reviewed the file I am satisfied that the Respondent was on notice of the claim against it. I waited a reasonable time before proceeding with the hearing in the absence of the Respondent. No explanation for the Respondent’s non-attendance has been received by the Workplace Relations Commission. 

In making these findings, I have considered the oral evidence and submissions adduced at the hearing summarised above as well as the documentation submitted at and in advance of the hearing.

Preliminary Issue

Incorrectly Named Respondent

I must decide if I can substitute the actual employer for the entity impleaded in this complaint.

The substitution of the actual employer for the entity impleaded in an originating complaint form has been addressed in a number of authorities.

McGovern J in the High Court case of County Louth VEC v. Equality Tribunal [2009] IEHC 370 addressed the question of when proceedings before a statutory tribunal can be amended. He 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.”

In the instant complaint the business name was used rather than that of a natural person or legal entity who trades under that business name. Relevant to the Complainant’s mistaken use of the Respondent’s business name are the Rules of the Superior Courts which allow for proceedings to be initiated against a firm in its business name. Order 14, Rule 11 of Rules of the Superior Courts  provides as follows:

 “Any person carrying on business within the jurisdiction in a name or style other than his own name, may be sued in such name or style as if it were a firm name; and, so far as the nature of the case will permit, all rules relating to proceedings against firms shall apply.”

In the case of Ballarat Clothing Ltd v. Aziz EDA151 the Labour Court agreed to amend the respondent’s title in light of authorities and adopted the reasoning of Hogan J in the case of O’Higgins v. University College Dublin & The Labour Court [2013] IEHC 431 wherein Hogan J held that:

“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.”

In the case of Auto Depot Limited v. Vasile Mateiu DWT1922 the Labour Court concluded that the erroneous naming of “Auto Depot Tyres Ltd” on the WRC complaint form was “no more than a technical error” and “to decline jurisdiction in these circumstances would certainly amount to a ‘grossly disproportionate response’ as envisaged in O’Higgins”. Of further relevance to the instant complaint are the Labour Court’s conclusions in that determination:

“The Court is further fully satisfied that the respondent party that appeared before the Court was the Complainant’s employer. That party was fully aware of the Complainant’s complaints to the WRC. He knew precisely from whom the complaints were and to what the complaints referred. The respondent party has had a full opportunity to be heard and to answer those complaints. The Court is therefore equally satisfied that the employer will suffer no prejudice or injustice by its decision on this preliminary matter…….”

The facts of the instant case are that at all material times:

1.       The Respondent acknowledged receipt of the complainant form and engaged in email communication with the WRC.

2.       The Respondent held themselves out as “Ward Personnel” by failing to correct this mistake.

3.       The time sheet submitted by the Respondent to the WRC is headed “Ward Personnel”.

4.       The “Employer’s Official Stamp” on the Department of Employment Affairs and Social Protection form identifies the Complainant’s employer as “Ward Personnel Ltd”.  

5.       The complaint form contained both the business address and the registered address.

6.       The named respondent is not a completely different entity in a different location.

7.       I find that the complaint form submitted to the WRC contained the business name of the respondent company. I consider this error to be technical in nature.

I am satisfied that the actual Respondent was fully aware at all material times of the instant complaint. Considering the facts of this case and taking note of the above decisions, I find that amending the name of the Respondent does not result in an injustice or prejudice to the proposed Respondent and declining jurisdiction in the circumstances of the instant case would amount to a “grossly disproportionate response” as envisaged in O’Higgins cited in the Auto Depot Limited case.

For the reasons cited above, I agree to amend the name of the Respondent to reflect its correct legal title, that of Ward Personnel Limited. This is reflected in this decision.

I decide that I do have jurisdiction to hear the complaint.

Relevant Law:

Entitlement in respect of Public Holidays

Section 21 of the Organisation of Working Time Act 1997 sets out the entitlement in respect of Public Holidays and the Third Schedule deals with the exceptions mentioned in Section 21(5).   There is an entitlement to compensation for public holidays occurring within the first 13 weeks of lay-off.  A complaint relating to public holiday entitlement must be submitted within six months of the date of the contravention of the public holiday entitlement.

Section 23(2) of the Organisation of Working Time Act 1997 provides for payment on termination of employment of public holiday entitlements. 

Redress:

Section 27(3) of the Organisation of Working Time Act 1997 provides:

A decision of an adjudication officer under Section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment.

Analysis

I found the Complainant to be an honest and credible witness. I accept the Complainant’s evidence that his temporary layoff occurred on the 1st March 2022. The public holidays that fell due during this 13-week period are:

1.            St. Patrick’s Day - 17th March 2022

2.            18th March 2022

3.            Easter Monday – 18th April 2022

4.            May Bank Holiday – 2nd May 2022

Three of these are within the six-month period prior to the complaint being submitted to the WRC on the 28th April 2022.

While the Complainant presented a screen shot from his account on the Revenue Commissioner’s website which stated that his employment with the Respondent ended on the 15th April 2022 he confirmed in evidence that he commenced employment with a new employer on the 23rd March 2022. Therefore, I find that the public holidays which fall to be considered by me are the public holidays on the 17th March 2022 and the 18th March 2022.

Section 23(2) of the Organisation of Working Time Act 1997 provides for payment on termination of employment of public holiday entitlements. There was no evidence presented to me that the Complainant was paid his public holiday entitlement on the termination of his employment. 

I find that the complaint for public holiday entitlement is well founded and that there are 2 public holidays to be paid. The Complainant’s gross weekly pay is €845.80, and the public holiday entitlement is 1/5th = €169.16. 2 x €169.16 = €338.32.

I find that the complaint in respect of non-payment for public holidays is well founded.  I direct the Respondent to pay the Complainant the sum of €338.32 gross being the payment due for 2 public holidays.

Key Words: Layoff – Public Holidays – Respondent wrongly named