Complainant

Respondent

Parties

Stephen  Murphy

Plaza Hotel

Representatives

  N/A

Peter Gilfedder 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-00053513-001

02/11/2022

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

CA-00053513-002

02/11/2022

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

CA-00053513-003

02/11/2022

The Complainant was employed as a Cluster Maintenance Manager with the Respondent from 3 October 2017 until 5 May 2022. He made three complaints in relation to his period of employment with the Respondent. Specifically, he stated that he was constructively dismissed because of the Respondent’s refusal to allow him to go to part- time and to take a week’s annual leave. In addition, he asserted that he did not receive his meals while on duty during the Covid period despite provision for same having been made in his contract of employment. He also stated that he did not receive his daily rest periods on occasion.

The Complainant submitted three separate complaints to the WRC:

CA-00053513-001: He stated that he was constructively dismissed and was left with no choice but to terminate his employment because the Respondent refused to allow him to go to part- time and to take a week’s annual leave around the time of the first anniversary of his son’s death.

CA-00053513-002 He alleged a breach of the Terms of Employment (Information) Act 1994 pertaining to not receiving meals while on duty.

CA-00053513-003 He alleged a breach of the Organisation of Working Time Act 1997 pertaining to not receiving the required 11 hours daily rest periods under the legislation.

CA-00053513-001:

It was asserted in the first instance that the General Manager sought to meet with him to discuss both his annual leave and part-time working request but that the Complainant refused to engage with him. It was further stated that the Complainant did not invoke the grievance procedure prior to his resignation.

CA-00053513-002:

It was stated that the Complainant as well as his colleagues were provided with both a kettle as well as a microwave and had also been given meals while he was working.

CA-00053513-003:

The Respondent presented documentation from the time management system to show that he had been provided with at least 11 hours rest in every 24 hour period in the cognisable period.

Preliminary Matter

The Respondent stated both in their submissions and in advance of evidence having been presented at the hearing that the Complainant had not listed the name of his correct employer, namely Plaza Tallaght Hospitality Ltd, on his WRC complaint form.  I also accept there is no legal entity called “Plaza Hotel” which the Complainant named as his employer on the WRC complaint form.

Considering the foregoing and having reviewed the Complainant’s payslips as well as his contract of employment, I am satisfied that he was employed by Plaza Tallaght Hospitality Ltd and must therefore decide if I can amend the name of the Respondent listed on the complaint form to reflect that of the Complainant’s correct employer.

The Law

Section 39 of the Organisation of Working Time Act (OWT), 1997 provides that “a relevant authority” can amend the form so that the correct employer is named in circumstances where a respondent objects to an application to amend.

Specifically, the Act, provides as follows:

39.—"(1) In this section “relevant authority” means a rights commissioner, the Employment Appeals Tribunal or the Labour Court.

(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.

(3) The power of a relevant authority under subsection (2) shall not be exercised if it would result in a person who was not given an opportunity to be heard in the proceedings on foot of which the decision concerned was given becoming the subject of any requirement or direction contained in the decision.

(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.”

Findings:

The statutes listed in section 39 of the Organisation of Working Time Act above include the Unfair Dismissals Acts and the Terms of Employment (Information) Act under which two of the within complaints are filed.  Accordingly, I am satisfied that I have authority to amend the name of the Respondent in respect of two of the complaints if I find that “the said misstatement was due to inadvertence” while I am unable to amend the impleaded Respondent in respect of the complaint presented to me under section 27 of the Organisation of Working Time Act, 1997.

In deciding whether the failure of the Complainant to name the correct employer in respect of the first two complaints was due to inadvertence, I am guided by the majority determination of the Employment Appeals Tribunal (EAT) in Jeevanham Al Tambraga v. Orna Morrissey and Killarney Avenue Hotel [UD36/2011] where the Tribunal considered its powers under section 39 of the OWT Act and reached the following conclusion:

“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.” 

The Tribunal found that “…there is no inadvertence in this matter.  In evidence the claimant stated that he had his payslips which clearly state his employer…”

Although I recognise that the Complainant in the instant case presented as a litigant in person and did not have legal representation on the day of hearing, I noted that the name of his employer was clearly stated on his payslips and on his contract of employment, which he did not dispute having received. I also note that he received correspondence from the Respondent dated 18 December 2018, following a takeover of the hotel, which clearly stated that his new employer was Plaza Tallaght Hospitality Limited, which he also did not dispute having received. 

I am therefore satisfied that he was in possession of several documents that clearly documented the correct name of his employer and note that he clearly read his contract of employment because he stated in his complaint form that the supply of meals was provided for in same. I cannot therefore find that the misstatement of the Respondent’s name on the complaint form was due to inadvertence.

In addition, I note that the WRC in its guidance notes on procedures in the adjudication and investigation of all employment and equality complaints and disputes, which is available online for the benefit of all complainants, sets out as follows:

“The Complaint Form should be carefully filled out, correctly completing all relevant sections including the correct name and address of the employer / respondent.  It is vital to ensure the correct legal name of the employer / respondent is entered on the Complaint Form.” 

Finally, I note that the Complainant did not make an application either in advance of or on the day of the hearing to amend the name of the impleaded Respondent even though, as stated above, his correct employer, in objecting to any name change of the Respondent on the complaint form, provided written submissions in relation to this preliminary matter on 12 May 2023 and also made oral submissions on the day of the hearing. I must therefore have regard to the legislation which states: A decision… that does not state correctly the name of the employer concerned… may, on application being made… by any party concerned, (my emphasis) be amended … so as to state correctly the name of the employer”  

Considering all of the foregoing points, I find that I cannot change the name of the impleaded Respondent to that of the Complainant’s former employer in respect of any of the complaints before me.      

CA-00053513-001 - CA-00053513-003:: I find that I do not have jurisdiction to hear these complaints for the reasons set out above.