Complainant

Respondent

Anonymised Parties

Optician Assistant

Optician

Representatives

Wesley Hudson of Gibson & Associates LLP.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00058356-001

17/08/2023

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

CA-00058356-002

17/08/2023

The complainant has made complaints against ‘name of Director’ trading as ‘xxxx Opticians’. The respondent submits the complainant was employed by xxxx Opticians Ltd. and her complaints are made against a private individual and Director of xxxx Opticians Ltd. They submit the complaints are against an incorrect party and that the complaints should be dismissed.

The Labour Court in Auto Depot Limited and Mr Vasile Matieu; UDD1954 considered an application that an incorrect respondent had been named. They concluded: 

“Having regard to the foregoing and relying in particular on the High Court decision in Capital Food Emporium, the Court is fully satisfied that the correct employer has been pursued by the Complainant. 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 from July 2017. 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. In arriving at this conclusion, the Court is also conscious of 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.” Declining jurisdiction in these circumstances would certainly amount to a “grossly disproportionate response” as envisaged in O’Higgins. The Court is further satisfied that this approach 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. On that point the decision of the Supreme Court in Halal Meat Packers (Ballyhaunis) Ltd v Employment Appeals Tribunal[1990] I.L.R.M 293 is relevant. Here Walsh J stated, albeit obiter, as follows: -

This present case indicates a degree of formality, and even rigidity, which is somewhat surprising. It is a rather ironic turn in history that this Tribunal which was intended to save people from the ordinary courts would themselves fall into rigidity comparable to that of the common law before it was modified by equity.

Accordingly, the Court considers the erroneous inclusion of ‘Auto Depot Tyres Ltd’ on the WRC complaint form to be no more than a technical error. The Court is fully satisfied that the Respondent’s name can simply be amended on the paperwork to reflect its correct legal title, that of ‘Auto Depot Ltd’. The Court will now proceed to consider the substantive matters.”

In this case I conclude that the respondent party at the hearing was the Complainant’s employer, they were fully aware of the Complainant’s complaints to the WRC and knew precisely from whom the complaints were made and to what the complaints referred. Also, the respondent has had a full opportunity to be heard and to answer those complaints. I am also satisfied that the employer will suffer no prejudice or injustice by the decision on this preliminary matter.

I have, therefore, amended the respondent’s name to reflect its correct legal title, that of ‘xxxx Opticians Ltd.’

In these circumstances I will proceed to investigate the substantive complaints.

Terms and Conditions of Employment: the complainant submits she never received or signed any documents setting out her terms and conditions of employment.

Organisation of Working Time Act:the complainant submits she did not receive any holiday pay.

Terms and Conditions of Employment: the respondent submits they provided the complainant with the minimum required terms of employment by text message within the period prescribed by the legislation.

Organisation of Working Time Act:the respondent submits the complainant was paid in full for the duration of her employment, up until her employment ceased, to include all holiday and statutory entitlements.

Terms and Conditions of Employment: Under Section 3(1) an employer must provide each new employee with a written statement of terms of employment within one month of commencement of employment. The written statement must include the following:

The full names of the employer and the employee

The address of the employer

The employee may request a written statement of the average hourly rate of pay

Whether pay is weekly, fortnightly, monthly or otherwise

Terms or conditions relating to paid leave (other than paid sick leave)

Any terms or conditions relating to incapacity for work due to sickness or injury

Any terms or conditions relating to pensions and pension schemes

Periods of Notice or method for determining periods of notice

A reference to any collective agreements which affect the terms of employment

A reference to any appliable REA or ERO and where the employee may obtain a copy of same

The training entitlement, if any, provided by the employer

the reference hours and days within which the employee may be required to work

the minimum notice period to which the employee is entitled to before the start of a work assignment and, where applicable, the deadline for notification in accordance with Section 17 of the Organisation of Working Time Act 1997, and

where it is the responsibility of the employer, the identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer.

The text message which the respondent says satisfies the legislation did not include many of the requirements of the legislation as set out above. I therefore conclude the complaint is well founded.

Organisation of Working Time Act: in evidence at the hearing the complainant says she is owed two days holiday pay. The respondent said the complainant was paid in full for her leave entitlement and submitted a pay slip as confirmation. However, this pay slip does not set out that any payment for leave was included. I therefore conclude this complaint is well founded.

Terms and Conditions of Employment: for the reasons given above I find this complaint is well founded and I award the complainant €2,092.30, this being 4 weeks pay.                                                                                                                                              

Organisation of Working Time Act:for the reasons given above I find this complaint is well founded and I award the complainant €261.54, this being 2 days pay.