Complainant

Respondent

Anonymised Parties

A salon Co-ordinator/Extensionist

A Hairdressing Salon

Representatives

M.Osborne BL, instructed by Lorna Cranny

Harry Carpendale HG Carpendale Solicitors

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-00033244-001

18/12/2019

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

CA-00033244-002

18/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00033244-003

18/12/2019

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

CA-00033244-005

18/12/2019

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

CA-00033244-006

18/12/2019

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

CA-00033244-007

18/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00033244-008

18/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00033244-010

18/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00033244-011

18/12/2019

The Complainant commenced employment with her employer on 8 August 2016 as a stylist/extensionist/manager.  She contended that she was constructively dismissed from her employment on 7 August 2019 and that she did not receive her annual leave or holiday pay from January 2019 to 8 August 2019, that she did not receive her public holiday entitlement during the same period, that she received no payment in lieu of notice of termination of her employment, that she often did not get breaks and never got a full hour for lunch, that she never received a contract of employment, that she did not receive written notice of changes to her terms of employment, that her attempts to raise grievances within the workplace were not facilitated by her employer, that she did not receive a redundancy payment and that she did not get paid for her standard hours from January 2019 until she left her employment on 8 August 2019.

The Respondent advised that it was not, and never had been the employer of the Complainant.

Preliminary Issue

At the hearing in March 2020 the Complainant expressed surprise at the Respondent position that it was not, and never had been, the employer of the Complainant and she sought leave to make a submission on the matter.  In her supplemental submission, the Complainant sought to amend her complaint form to include additional Respondents, on the basis that it was not clear who the correct Respondent should be. 

Following the provision of additional information throughout the course of the following 2 days of hearing it was accepted by the Complainant that the Respondent initially named on the complaint form was not the correct employer.

Supplemental Submissions:

As outlined above, at the hearing on 9 March 2020 the Respondent Representative advised the hearing that the Respondent had never been the employer of the Complainant.  The Complainant Representative sought leave to make a submission in relation to this matter and did provide a supplemental submission on behalf of the Complainant in March 2020 and later submitted an amended supplemental submission in June 2024 prior to the hearing on 24 June 2024.

The Complainant submitted the following by way of background to the issues:

·       That the complaint was listed for hearing on 9 March 2020 and that on the morning of the hearing the Complainant was in self-isolation having returned from Milan.

·       That the Complainant was a salon co-ordinator/extensionist and at all material times was employed by the Respondent as a salon co-ordinator/extensionist having commenced her employment in or around 8 February 2016 and that at the time of cessation of her employment she was employed at the named Hair Salon

·       That the Complainant and the Respondent were advised by letter of 12 February 2020 that a hearing before the WRC was scheduled for 9 March 2020

·       That on the morning of 9 March 2020 the Respondent’s Representatives provided a letter at the hearing from an accountancy firm which stated that the Respondent “never registered any employees since its date of incorporation, 30 November 2017 to date”.

·       That the Representatives of the Respondent provided a Business Name Printout from the Companies Registration Office which gave details of another company with the named Hair Salon (hereinafter referred to as Company B.  This company had a business address in the same small village as the Respondent and Ms. X was listed as the business owner.  No information was provided by the Representatives of the Respondent as to why the details of Company B were provided.

In those circumstances the Complainant Representative submitted that the purpose of the supplemental submission was to seek to amend the Respondent in the within proceedings

The Complainant sought, in addition to the within proceedings against the Respondent, to initiate proceedings against the following:

·       Proposed Respondent 1`- Ms. X as named business owner

·       Proposed Respondent 2 – a variant of Ms. X’s name as the named business owner

The Complainant sought the amendment under Section 39 of the Organisation of Working Time Act, 1997, (OWTA) submitting that such proceedings would therefore not be statute barred.  The Complainant noted the addresses of each listed company, all showing similar addresses in the same small village.

The Complainant submitted that an Adjudication Officer is empowered under Section 39 of the OWTA to permit the Complainant to initiate proceedings against a Respondent not named in the original complaint, notwithstanding that the time specified under the said enactment within which such proceedings my be instituted had expired.

The Complainant further submitted that no injustice would occur to the proposed Respondent(s) and that all complaints detailed in the original complaint were covered by the Table in Section 39(2).

The Complainant submitted that she was not provided with a contract of employment or any written statement setting out her terms and conditions of employment.  Such a statement, had it been provided, would have provided the Complainant with the address of her employer.

In her submission, the Complainant noted the letter of 31 October 2019 from an accountancy firm which stated that:

“As per payroll records to Revenue Commissioners, (the Complainant) cessation date was 9 August 2019.  I can confirm that she is no longer on the payroll for (Ms. X t/a a named company with an address in the named village)”

The Complainant further submitted that on a search of the Companies Registration Office (CRO) a number of business/companies were noted as having part of the same name in each and with registered addresses in the same village and that Ms. X was named as either the business owner or the director of each company.  The Complainant drew attention to the specific address referenced in the accountant’s letter of 31 October 2019 and noted that the only company with that address was the Respondent, the original named Respondent.  The Complainant submitted that the Respondent was named as the Respondent on the basis of the address which had been provided to the Complainant as the address for her employer by the accountancy firm.

In her submission, the Complainant noted that prior to attendance at the hearing in March 2020 the Respondent had not responded to the correspondence dated 12 February 2020 from the WRC which had advised of the proceedings.

The Complainant submitted that she should be permitted to initiate proceedings against proposed Respondent 1 and proposed Respondent 2and that the details of the Respondents were incorrectly stated on the original complaint form due to inadvertence.  In addition, the Complainant submitted that the Respondent should remain a party to the within proceedings until evidence is adduced that it is not the employer of the Complainant.

The Complainant set out the content of Section 39 (1), (2) (3) and (4) of the Organisation of Working Time Act 1997 and opened the case of Auto Depot Limited v Vasile Mateiu UDD 1954 where the Labour Court set out the interpretation of this section, and in particular section (4) as follows:

“As is clear from the wording of subsection (4), these provisions are intended to provide a mechanism by which fresh proceedings can be instituted against an employer which was incorrectly identified in an original complaint.  This subsection does not deal with the amendment of either proceedings or a decision.  Nor does it allow for the substitution of one respondent for another.  This subsection applies to situations in which a complaint is initiated against a wrong party as respondent and the complainant wishes to initiate a fresh complaint concerning the same matter against the correct respondent.  What this subsection provides is that, in these circumstances the complainant may apply to the tribunal of first instance, an Adjudication Officer in this case, for leave to re-initiate proceedings against the correct respondent.  That is a stand alone process and if leave is granted, the Complainant can re-submit his or her complaint afresh.  In order to grant leave to an employee to invoke these provisions, the Adjudication Officer will have to be satisfied that the conditions specified in the subsection are met.”

Hearing 24 June 2024

At the hearing in June 2024 the Complainant Representative referred to the time delay issue raised by the Respondent and stated that the time delay was the responsibility of the WRC and that the Complainant should not be impacted as a result.

The Complainant representative stated that on the day of the initial hearing in March 2020 the Accountant handed them the correspondence to show that the correct employer had not been named.  The Respondent Representative intervened to correct that statement, as the legal representatives had attended the hearing and not the accountant.  Some debate ensued and I confirmed that I was clear that both parties had been represented by legal representatives at the previous hearing.

The Complainant Representative submitted that the name on the payslip of Ms. X trading as a specific named company was not on the CRO and that the only company with the relevant company name on the CRO with an address as outlined by the accountant was the company that had been named on the original complaint form.  The Complainant Representative stated that they had gone to some length to find the correct employer.  They pointed to the correspondence of 31 October 2019 and the correspondence of 5 March 2020 from the accountant, both of which referred to a specific address for the Respondent.  The Complainant Representative submitted that it did not know if this was a deliberate intent to mislead but that the address listed in correspondence from the accountant led them to conclude that they had named the correct employer.

The Complainant Representative opened the case of Auto Depot Ltd. (UD/19/77) and pointed to the similarities between that case and the instant case.  The Complainant Representative drew attention to the fact that the Complainant would be statute barred from making a new complaint.

The Adjudication Officer (AO) asked the Complainant in circumstances where both the payslips and the Complainant’s P60 named the employer as proposed Respondent 1, why they were not alerted to the discrepancy in the employer’s name or if this name discrepancy had given them pause for thought.  The Complainant Representative again pointed to the specific address contained in the accountant letter and to the fact that the Respondent named on the complaint form was the only one of the 4 possible companies listed on CRO with that address.

The AO put the question to Ms. Cranny (solicitor) who represented the Complainant at the outset, and she advised that she had dealt with a Personal Injuries case for the Complainant and had named the same company as respondent in that case without any issue or concern being raised.  This she said confirmed her belief that she did indeed have the correct respondent in this employment matter.  She stated that the case went ahead in court for that personal injury claim and that the defendant’s insurers were present.

The Complainant Representative stated that given the number of similarly named entries on CRO, given that Ms. X was associated with them all, given that the Complainant never received a contract of employment clearly setting out the name and address of the employer and given that the accountant had inserted the specific address in correspondence and that the only company with that address on the CRO was the one named in the complaint, there was clear inadvertence in the completion of the respondent details in the complaint.

Hearing 18 September 2024

At the hearing on 24 September 2024 the Complainant Representative confirmed that essentially their case remained the same as that outlined in June 2024 and that it was the Complainant’s position that if a new complaint was to be issued after 6 months it would be statute barred.  He further confirmed that it was the Complainant’s understanding that what was required was a request to amend the complaint form to include the correct respondent. 

He noted the concerns expressed by the Respondent Representative in relation to time delays and stated that Covid 19 had caused delays to a range of cases and complaints including this case and that “this was out of everyone’s hands”.  He noted the respondent position that it would cause injustice to his client due to the length of time since the employment ended, however, he stated that he could not see how the delay would be prejudicial in circumstances where most of the evidence would be documentary.

In relation to the question of inadvertence he noted the accountant letter of October 2019 where the addressed contained therein only related to one company on the CRO and that this information, provided by the employer’s accountant had led to the mistake made.

Preliminary Issue

At the hearing in March 2020, as the parties were packing up to leave the Respondent’s Representative advised that the Respondent was not the correct respondent and had never been the employer of the Complainant.  The Representative provided a copy of correspondence dated 5 March 2020 from Prendergast Keogh & Company (Accountants), confirming that they act as accountants for the Respondent.  In that correspondence they further confirmed that to their knowledge, this company had been dormant and had never registered any employees since the date of its incorporation on 30 November 2017.  In addition, the Representative provided a copy of a CRO Business Name printout for another company. The business owner is listed as an individual who will referred to hereinafter as Ms. X.  Copies were also given to the Complainant Representative.

Hearing 24 June 2024

At the hearing in June 2024 the Respondent Representative stated that the Complainant’s employment was terminated on 7th August 2019 and that she had submitted her complaint on 18 December 2019.  He confirmed that on 6 March 2020 he had advised the WRC that he was acting for the named respondent.  He noted that the Complainant was seeking to initiate or amend her complaint under section 39 of the OWT Act.  He noted that at the date of the last hearing (9 March 2020) the Complainant would have been out of time for submitting new complaints.  He further noted that he did not hear anything more on the matter until he received the correspondence of 15 May 2024.

The Respondent Representative pointed out that his client was not the employer of the Complainant and in that context, he would merely make some observations as follows:

·       He noted that the Complainant had submitted a number of payslips which all identified the employer as proposed Respondent 1 and that despite this the Complainant had failed to identify the correct Respondent. 

·       He stated that if this was an unrepresented complainant, he could understand they might be confused but he pointed out that the Complainant was represented by legal counsel at the original hearing, in advance of the original hearing and today.  He submitted that any legal representative, noting the employer as listed on the payslip as a named individual t/a …, would have immediately realised that the employers name was clear and would have taken further steps to have identified the correct employer.  He submitted that in these circumstances the Complainant could not demonstrate that the Respondent was incorrectly named through inadvertence.

·       The Respondent Representative also stated that if the AO was minded to accept the application from the Complainant to add further named respondents to these claims it should be noted that the WRC would be serving notice on a Respondent(s) some 4 years after the complaint had been filed. He stated that this would be a breach the EU Charter on human rights.  He also stated that in any event and regardless of the timelines if this was in a court the Complainant would not get away with adding new named respondents when she had clear legal representation from the outset and did have the correct information available to her on the payslips.

The Respondent Representative stated that there was no justification for having named the wrong Respondent.  He stated that he would accept no culpability for not contacting the Complainant Representative as his client was not the Respondent.  He stated while he had “no skin in the game” in relation to other respondents being added that where he would lodge a case in the courts and copy same to the other party, he would always include a sentence to the effect that if he had named the wrong party to please advise and he stated the Complainant Representative had not done this.

He noted the CRO printouts provided by the Complainant in their supplemental submission, relating to the various companies with a similar name and he pointed out that these were dated 6 March 2020. He stated that this could not be used to demonstrate that they had researched the name fully prior to submission of the original complaint. He again referenced the employer’s name on the payslips and stated that the employer’s name was clear and that legal representatives should know.

He referenced the case of Auto Depot opened by the Complainant and stated that while the powers are clear under the Act, such power is qualified…that there must be inadvertence. He stated that to demonstrate inadvertence there must have been an error made through either accident or oversight and he stated that where a Complainant was legally represented there was no accident or oversight.

The AO asked the Respondent Representative if there was any reason why, when notice of the complaint went to the Respondent in January 2020 and notice of the hearing went to the Respondent in February 2020, a response was not made at that time to indicate that the wrong employer was named.  The Respondent Representative indicated that his client was a busy working mother of three and that he could only assume that in circumstances where she received a complaint against a dormant company she was likely not to have been overly concerned and did not give it her immediate attention.  He stated that he was only engaged sometime after she received notice of the hearing, as could be seen from his correspondence to the WRC of 6 March 2020.

Hearing 18 September 2024

At the hearing on 18 September 2024 Ms. X was present and the Respondent Representative also attended, representing Ms. X.  At the hearing, the Representative provided copies of correspondence issued to the WRC on 17 September 2024 and which he described as a “speaking note” for the hearing.

The Representative outlined that in May 2020 the Complainant issued Circuit Court personal injury proceedings against Ms. X trading as proposed Respondent 1.  In those proceedings the Complainant also named a number of other defendants, including the Respondent and proposed Respondent 2.  It was submitted that the Complainant’s evidence was that after cutting a customer’s hair in the salon, she slipped on the hair she had cut and injured herself. It was submitted that counsel for the salon had stated that it was akin to a person spilling water, slipping on it, and then suing their employer. It was noted that the complainant had sought medical attention approximately 12 months after the incident.

The Representative outlined that the Circuit Court judge dismissed the case, awarding costs against the complainant in favour of the respondent. The Representative advised that the Complainant had not, as of the date of hearing paid any portion of the monies owed in respect of costs.

The Representative outlined that there seemed to be a fundamentally flawed and impermissible interpretation taken by the Complainant and the WRC as to how Section 39(4) of the Organisation of Working Time Act 1997 application should be applied and processed. In that context the following sequence of events were outlined:

·       That the matter was initially listed before the WRC for a hearing on 9 March 2020 and that his office was instructed on behalf of the Respondent to defend the proceedings

·       That, in the context that the Respondent had no employees, the Respondent Representatives, attended the hearing on that date and confirmed this position to the hearing. The Representative submitted that at that point he had understood that the matter would go no further and that having confirmed the position both he and Counsel left the hearing, believing that the proceedings had concluded.

·       That unbeknownst to his office, the Respondent and Ms. X a subsequent submission was made on 19 March 2020 by the Complainant, seeking to initiate proceedings against a third party, namely their client, Ms. X, under Section 39, Subsection 4.

·       That it was noted that a further amended supplemental submission on behalf of the Complainant was dated 30 September 2022.

·       That the representatives were not informed of either submission until they received confirmation in May 2024 that a new hearing had been scheduled to consider the section 39 application, that this was more that 4 years after the initial hearing, which both the Representative office and the client understood to have concluded the matter.

·       That on 24 June 2024, Respondent Representative attended the hearing and outlined that the Respondent had nothing further to contribute to the proceedings as the Respondent had never employed the Complainant. It was noted that at the hearing it was accepted that the Respondent named in the complaint was not the correct respondent.

·       That subsequently the Representative was contacted by Ms. X, who advised that she had been subpoenaed to attend the hearing which ultimately took place on 18 September 2024.

It was outlined that the Complainant issued proceedings against the Respondent, that the matter was dealt with by the Respondent’s legal representatives, with their client taking no active part in the proceedings. He further submitted that nothing further was heard in respect of the proceedings for over four years following the initial hearing.

It was noted that their client had never been served any papers in respect of the proceedings, despite the complainant having issued same on 18 December 2019 and having, at a minimum, identified the client as the correct respondent during the course of the initial WRC hearing on 9 March 2020.  The Representative posed the questions as to how this delay in notifying their client of the proceedings could be considered to align with the concepts of natural justice and also posed the question as to why the Complainant had not served any papers in respect of this matter up to the date of hearing.

Attention was drawn to section 39(4)(b) stating that the act makes clear that “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 the 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”  The Representative submitted that this means that there would need to be a fresh application to the WRC, and the proceedings should be issued against the correct employer along with an application under the enactment to the relevant authority (the WRC).  He submitted that the claim would have to be served in the normal course of events on the proposed respondent, and the respondent would be given the opportunity to oppose or consent to the section 39(4) application.  In this regard attention was drawn to the case of Auto Depot Limited v Vasile Mateiu (UDD 1954) where the Labour Court stated:

“As is clear from the wording of subsection (4), these provisions are intended to provide a mechanism by which fresh proceedings can be instituted against an employer who was incorrectly identified in an original complaint.  This subsection does not deal with the amendment of either proceedings or a decision. Nor does it allow for the substitution of one respondent for another.  This subsection applies to situations in which a complaint is initiated against a wrong party as respondent, and the complainant wishes to initiate a fresh complaint concerning the same matter against the correct respondent. What this subsection provides is that, in these circumstances, the complainant may apply to the tribunal of first instance, an Adjudication Officer in this case, for leave to re-initiate proceedings against the correct respondent. That is a stand-alone process, and if leave is granted, the complainant can re-submit his or her complaint afresh.  In order to grant leave to an employee to invoke these provisions, the Adjudication Officer will have to be satisfied that the conditions specified in the subsection are met.”  It was outlined that the fact that a new set of proceedings was not issued in the intervening period, as is required, should be considered a fatal flaw to any such application and he further submitted that in accordance with the above, section 39 (4)(d) of the Act states:

“Provided that the relevant authority shall not grant such leave to that employee if it is of the opinion that to do so would result in an injustice being done to the proposed respondent.”

It was outlined that allowing the application in the instant case would result in severe injustice to their client in the specific circumstances and submitted that the client’s memory of the events had faded, that she did not hold documents relating to the complainant’s employment or her own defence and that she had never formally been served the papers. It was submitted that the WRC has dealt with the Section 39 request in a manner that neither complies with its statutory obligation nor with any understood concept of natural or constitutional justice.  In circumstances where it would cause an injustice, based on the facts outlined above, it was submitted that the WRC must reject the section 39(4) application of the complainant.  It was further outlined that, as a creature of statute the WRC is bound by Article 6}, of the European Convention on Human Rights and any decision by the WRC granting the Section 39(4) application would be a breach of their client’s human rights as enumerated by the European Convention on Human Rights.

Attention was drawn to the question of ‘Inadvertence’, noting that Section 39(4)9b) states: “the misstatement must be due to an inadvertence”.  In that regard the case of A Mechanic v A Passenger Coach Operator [ADJ-00026854] was opened and with specific focus on the following decision:

“The majority determination of the Employment appeals Tribunal in Jeevanhan Al Tambraga v Orna Morrissey and Killarney Avenue Hotel (UD36/2011) where the Tribunal considered its powers under Section 39 of the Organisation of Working Time Act 1997 and reached the following conclusions:

The majority acknowledge that s.39 of the organisation of Working Time act 1997 gives certain scope to the Tribunal to allow for an application to be made to the Tribunal for amendment of the name of the employer.  Such power is qualified quite significantly in s.39(4)(b) of such section, noting that 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.”  It was outlined that it is therefore clear that in order for an Adjudication Officer to grant leave to the Complainant to change the name of the Respondent, it must be established firstly, that there has been inadvertence on the part of the Complainant in terms of the failure to identify the correct Respondent when the proceedings were instituted, and secondly, that such leave to amend the name of the Respondent should not result in an injustice being done to the proposed Respondent.

It was noted that it is clear that the mistake must be made as a result of an “inadvertence” and he pointed out that an inadvertence amounts to a clerical or administrative error; that it is not a mistake as to fact or a misunderstanding of the law.  He noted that the Complainant confirmed that she understood that she was employed by the Respondent despite the fact that she had exhibited 23 payslips, all of which refer to her employer as proposed Respondent 1/In addition, he pointed to the letter of the 31 October 2019 from proposed Respondent 1’s accountant to the Complainant which was appended by the Complainant to her supplemental submission, which stated that the complainant was no longer on the payroll of Ms. X.  he further noted that the Complainant’s employment began on 8 February 2016, while the Respondent was incorporated after that date on 30 November 2017.  A printout from the CRO website was appended. 

It was submitted that in the above circumstances there could be no excuse for the Complainant to have the incorrect respondent’s name on her complaint form and that it simply was not an inadvertence.  It was submitted that the Complainant was a manager for proposed Respondent 1 and that she was fully aware of who she was employed by  and that furthermore she was represented throughout her claim by solicitors and Counsel.  It was submitted that quoting the wrong name was not an inadvertence; it was, in fact, something that was done that was inexcusable and/or reckless on the part of the complainant.  It was further submitted that in or about the same time as her WRC application, the Complainant in her Injuries Board application named proposed respondent 1 as her employer.

It was submitted that the Respondent and Ms. X are two separate people in the eyes of the law and that the WRC cannot ignore the concept of separate legal entities and think that it will be saved by hiding under cover of curial deference.  It was submitted that for the purposes of these proceedings the complaint may as well have put the name of a random stranger down as her employer.  It was outlined that if the WRC were to allow the Complainant’s section 39(4) application, it would be to allow a party to circumvent the statutory time period for bringing a claim, by simply placing the incorrect name on a complaint form and claiming it was a mistake.

In addition to outlining the content of the above speaking note the respondent representative confirmed that proposed Respondent 1 was the correct respondent in relation to the complaint but that it was critical to the case to note that the papers had never been served on that company.  He confirmed that this entity was an individual with a trading name and he confirmed that the Complainant had rightly identified the correct respondent in the personal injuries case.

In relation to the Complainant’s request under section 39(4) he noted that the Complainant had lodged her complaint against the wrong respondent despite having, in her possession, 23 payslips with the correct name of the employer.  He further noted that the Complainant was a manager who would have been well aware of the employer’s name and that she had lodged a personal injuries claim against the correct employer.

Preliminary Issue

I have considered carefully the supplemental submissions provided by the Complainant, the speaking note provided by the Respondent for the hearing on 18 September 2024, additional supporting documentation from both parties; as well as information provided and representations made at hearings.

I considered the case law set out in submissions and opened at hearings and I noted in particular the Labour Court decision in the case of Auto Depot Limited v Vasile Mateiu (UDD 1954) where the Court stated:

“As is clear from the wording of subsection (4), these provisions are intended to provide a mechanism by which fresh proceedings can be instituted against an employer who was incorrectly identified in an original complaint.  This subsection does not deal with the amendment of either proceedings or a decision. Nor does it allow for the substitution of one respondent for another.  This subsection applies to situations in which a complaint is initiated against a wrong party as respondent, and the complainant wishes to initiate a fresh complaint concerning the same matter against the correct respondent. What this subsection provides is that, in these circumstances, the complainant may apply to the tribunal of first instance, an Adjudication Officer in this case, for leave to re-initiate proceedings against the correct respondent. That is a stand-alone process, and if leave is granted, the complainant can re-submit his or her complaint afresh.  In order to grant leave to an employee to invoke these provisions, the Adjudication Officer will have to be satisfied that the conditions specified in the subsection are met.”

In that regard I noted Section 39(4) as follows:

“if an employee wishes to pursue against a person a claim for relief in respect of any matter under the 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 the opportunity to be heard and –

(a) the fact of the said person not having been given the opportunity to be heard in those proceedings was due to the respondent’s name in those proceedings or any 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 authorities 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 the opinion that to do so would result in an injustice being done to the proposed respondent.”

Based on Section 39(4) and the Labour Court interpretation outlined above it seems to me that in considering the Complainant application to add  2 proposed respondents to the complaint I must consider whether the circumstances outlined by the complainant are those provided for in Section 39.  I consider that if those criteria are met then I must further consider whether or not the granting of such leave would result in an injustice to the proposed respondent.

It is clear to me that the Complaint has not yet had an opportunity to be heard in relation to her complaints submitted due to the fact that the respondent’s name in those complaints had been incorrectly notified and so I find that she does meet the criteria set out in section 39 (a).

In relation to Section 39(b) that “the said misstatement was due to inadvertence” I noted the following:

·        That the Complainant was not given a contract of employment which, had it been given, would have set out details of the name and business address of the correct employer

·        That the employer’s accountant wrote to the Complainant on 31 October 2019 confirming that Revenue had been advised of her cessation date of employment.  In that letter the accountant advised that the Complainant was no longer on the payroll of Ms. X t/a a named hair salon, with an address in the village where the complainant’s employer was based. The business name in the letter is different from that of the Respondent but the account letter denotes the same address as the Respondent.

·        That the Individual Business Name contained in the accountant letter was not the Respondent named in the complaint form, but that the address provided on the complaint form was the address contained in the accountant letter.

·        That the Complainant had received payslips and a P60 (provided with her submission) and these included the employer’s name.  (This business name is proposed Respondent 1) 

·        That the Complainant had legal representation from the outset, they were named as her representatives on her complaint form and at hearing had confirmed that they had completed the complaint form on her behalf.

·        The original submission, on behalf of the Complainant made no reference to any searches to identify the correct Respondent, and no mention of any concern in relation to the Respondent’s identity.

I further noted the following in relation to the Respondent identity:

·        That the named respondent was not and never had been the employer of the Complainant.  I noted the content of the letter dated 5th March 2020 from the Respondent accountant which identified the Respondent, and which advised that this was a dormant company that had never registered any employees. 

·        I noted the copy of a Business Name Printout from the CRO for a company -proposed Respondent 1 and I noted the CRO described the business type as Business Name – Individual and named the business owner as Ms. X with a “Business Owner” which was the same as the address set out in the accountant letter of 31 October 2019, but with a different address in the same village as the registered office

·        That 3 companies were identified from CRO as being potential employers and, for the avoidance of confusion I have only list 2 below in circumstances where Ms. X attended the hearing in September 2024 and her Representative confirmed that proposed Respondent 1 below was the correct employer.  The details of the Respondent and proposed Respondent 1 are set out as follows:

o   The Respondent - a company limited by shares with the same address as that set out in the accountant letter of 31 October 2019 in a small village. This company was incorporated on 30 November 2017.

o   Proposed Respondent 1 – an individual business name with a trading name similar to the Respondent and a business address in the same village as the Respondent.  The business owners address for this business was the same as that of the Respondent.  This company was incorporated on 14 October 2008

 I took particular account of the fact that the Respondent named in the complaint form, while it has a component of the trading name of proposed Respondent 1 as its business name, I noted that none of the documentation provided to the Complainant in the form of P60’s or payslips used that company name. The Complainant had multiple payslips and P60’s bearing the correctly named employer, had all relevant information available to determine that the incorrectly named employer (the Respondent) was not incorporated until almost 2 years after the Complainant commenced employment and had access to CRO information where the address cited by the accountant as the employer address was also listed on CRO as the business owner address for proposed Respondent 1.

The general meaning of “inadvertence” is  an accidental oversight and I noted ADJ -00026854 where in considering the application of Section 39(4) it was stated that “the word inadvertence is the qualifier in these circumstances, meaning an accident or oversight”. In the circumstances outlined above I have concluded that it is not credible that the incorrect citing of the address by the accountant resulted in an inadvertence which would have led to the incorrect respondent being named.  Rather it would appear to be a case of a failure to adequately evaluate the totality of the available information.

In these circumstances I find that the Complainant does not meet the criterion set out in Section 39(4) and therefore I do not grant the Complainant leave to enter complaints against additional respondents.

The Substantive Claims

I note that both parties accepted that the Respondent was never the employer of the Complainant and therefore I find that the Respondent has no case to answer in the instant case.

CA- 00033244 -001

I have found that the Respondent was never the employer of the Complainant and in those circumstances it is my decision that this complaint is not well founded.

CA- 00033244 -002

I have found that the Respondent was never the employer of the Complainant and in those circumstances it is my decision that this complaint is not well founded.

CA- 00033244- 003

I have found that the Respondent was never the employer of the Complainant and in those circumstances it is my decision that this complaint is not well founded.

CA- 00033244-004

I have found that the Respondent was never the employer of the Complainant and in those circumstances it is my decision that this complaint is not well founded.

CA- 00033244-005

I have found that the Respondent was never the employer of the Complainant and in those circumstances it is my decision that this complaint is not well founded.

CA- 00033244 -006

I have found that the Respondent was never the employer of the Complainant and in those circumstances it is my decision that this complaint is not well founded.

CA- 00033244 -007

I have found that the Respondent was never the employer of the Complainant and in those circumstances it is my decision that this complaint is not well founded.

CA- 00033244 -008

I have found that the Respondent was never the employer of the Complainant and in those circumstances it is my decision that this complaint is not well founded.

CA- 00033244 -009

I have found that the Respondent was never the employer of the Complainant and in those circumstances it is my decision that this complaint is not well founded.

CA- 00033244 -010

I have found that the Respondent was never the employer of the Complainant and in those circumstances it is my decision that this complaint is not well founded.

CA- 00033244 -011

I have found that the Respondent was never the employer of the Complainant and in those circumstances it is my decision that this complaint is not well founded.