Complainant

Respondent

Parties

Briona Brogan

Andrew Currie

Representatives

Represented herself 

Jason Murray BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00058963-002

21/09/2023

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

CA-00058963-003

21/09/2023

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

CA-00058963-004

21/09/2023

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

CA-00058963-005

21/09/2023

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

CA-00058963-006

21/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00058963-007

Withdrawn

21/09/2023

The complainant’s contract of employment states that her employer was AC Human Capital (Ireland) Limited.  In a submission provided by the respondent in advance of the hearing, Mr Murray said that that company was never set up due to registration issues.  Copies of payslips included in the respondent’s submission indicate that her employer was ACH Capital Limited.

ACH Capital Limited is a recruitment firm specialising in the placement of legal candidates.  The complainant is a qualified solicitor and she was employed as a recruiter for almost six months, between March and September 2023.  Her base salary was €60,000 plus commission of €3,750 per month, resulting in expected annual earnings of €105,000.  Her contract also provided for commission based on a percentage of fees earned.  The complainant’s employment was terminated on September 14th 2023 due to poor performance.

At the commencement of the hearing, counsel for the respondent, Mr Murray, raised a preliminary issue concerning the naming of the employer on the WRC complaint form.  He submitted that Andrew Currie was not the complainant’s employer and that she has named an incorrect entity.  Mr Murray submitted that the naming of Andrew Currie instead of ACH Capital Limited “is not a mere technical or clerical error on the face of the complaint form” and that the error is fundamental and goes to the root of the jurisdiction of the WRC.

Mr Murray acknowledged that I, as the adjudication officer, may exercise discretion to substitute one party for another where the wrong party has been named on the WRC complaint form.  However, referring to the decision of the Labour Court in the case of Sylwia Wach v Travelodge Management Limited[1], Mr Murray submitted that it is not appropriate to do so where the time limit for submitting a complaint has passed.  The complainant was dismissed on September 14th 2023 and therefore, on March 13th 2024, her complaint became statute barred.

Concluding his arguments on the preliminary issue, Mr Murray submitted that the fundamental flaw in the naming of the respondent means that the complainant lacks the right to have these complaints investigated by the WRC.

The complainant did not provide a written submission in advance of the hearing and her response to the preliminary issue of the name of the respondent was given in direct evidence and cross-examining.

At the outset, the complainant said that she is a qualified solicitor in England and Wales and New York.  She said that she has no experience of Irish employment law and when she was dismissed on September 14th 2023, she consulted a legal firm in Dublin to act on her behalf.  Her solicitor came off record in June 2024 and she decided to represent herself at the hearing.    

In response to questions from Mr Murray, the complainant said that she accepts that Andrew Currie is a standalone legal entity and separate from the limited liability company.  She accepted that ACH Capital Limited was her employer and she said that the solicitor that acted for her in September 2023 put Andrew Currie on the complaint form as her employer.  She said that she thought that she worked for the name of the employer that was on her contract of employment, AC Human Capital (Ireland) Limited.

Mr Murray asked the complainant to consider her payslip, which has the name of her employer as ACH Capital Limited.  He then referred to a letter dated September 13th 2023 from MMW Solicitors.  This was sent to the complainant the day before her employment terminated and specifically refers to her employer as ACH Capital Limited.  An email from Mr David Mitchell of MMW on the day of her dismissal is headed, “Re ACH Capital Limited.”  The complainant replied, “I know who ACH Capital is" and she agreed with Mr Murray that that company was her employer.  A letter dated September 21st 2023 from the complainant’s solicitor, Crushell & Company, to MMW Solicitors has the following heading in bold capitals:

RE: ACH CAPITAL LIMITED – UNILATERAL TERMINATION OF EMPLOYMENT OF MS BRIONA BROGAN

Mr Murray submitted that the complainant’s cause of action rests with ACH Capital Limited and her previous solicitor.  The complainant disagreed and said that she didn’t know why Crushell & Company put “Andrew Currie” on the complaint form as her employer.  She said that she thought that the entity on her contract, AC Human Capital (Ireland) Limited was her employer and she said that the evidence of a name on a payslip is not an indication of who an employer is.  She argued that the respondent answered her claims and did not raise an issue regarding being wrongly named.

It has been established that, on her complaint referral form, the complainant incorrectly named Andrew Currie as her employer.  As a preliminary matter, I must now consider her request to amend the name of the respondent and to have these complaints heard against ACH Capital Limited.

Statutory Provisions Regarding the Power to Amend the Name of the Respondent

Section 39 of the Organisation of Working Time Act 1997 (“the OWT Act”) provides that I, as the adjudicator (the “relevant authority” - subsection (1)) have certain powers to deal with difficulties arising from a respondent being improperly named in a decision given under certain statutes including the Unfair Dismissals Act 1977 and the Minimum Notice and Terms of Employment Act 1973 or, on a complaint referral form.  Subsections (2) and (3) of this section set out the parameters for the amendment of a decision already issued.  Subsection (4) provides a mechanism for a complainant to issue fresh proceedings against the correctly named respondent, even where the statutory time limit for initiating a complaint has expired:

(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.

At the hearing, the complainant said that the error in the naming of the incorrect respondent on her complaint form was due to a mistake by her solicitor.  No application was made to initiate fresh proceedings under section 39(4) and the complainant argued that I should amend the form and substitute the correct respondent’s name, ACH Capital Limited, for Andrew Currie.

Alternative Power to Amend the Name of the Respondent

The decision of my colleague adjudicator, Enda Murphy, in A General Operative and a Restaurant[2], contains a useful analysis of the case law on the discretion open to an adjudicator outside the statutory framework, to correct the name of a respondent. 

The Labour Court decision in the appeal of Auto Depot Limited against the decision of the adjudicator in the complaint of Vasile Mateiu[3] provides guidance regarding the amendment of the name of a respondent who has been incorrectly named.  The Court found in favour of Mr Mateiu and permitted him to correct the name of his employer on his complaint form.  Reflecting the decision of Mr Justice Hogan in O’Higgins V University College Dublin and Another[4], the Court concluded that to decline the complainant’s request would amount to a “grossly disproportionate response” and found that,

“…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.’”

While the complainant in Auto Depot, Mr Mateiu,was represented by an experienced person, that person was not a solicitor and, unlike the complainant in the instant case, Mr Mateiu did not have the benefit of legal advice.  He was never issued with a contract of employment or any document that bore the name of his employer.  The complainant was issued with a contract of employment that named her employer incorrectly as AC Human Capital (Ireland) Limited, but not as Andrew Currie.  At the time of her dismissal, she was sent a raft of correspondence from her employer’s solicitors that showed that she was employed by their client, ACH Capital Limited. 

All the case law on this issue points to certain critical factors that must be considered by an adjudicator weighing up the merits of a complainant’s request to amend the name of the respondent:

1.  What degree of formality is required?

The judgement at the High Court in the case of County Louth VEC v the Equality Tribunal[5]is a seminal case on the amendment of documents by a statutory tribunal.  Here, Mr Justice McGovern 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 Travelodge case cited by Mr Murray (footnote 1), the Labour Court referred to the decision of the Supreme Court in the case of Halal Meat Packers (Ballyhaunis) Ltd v Employment Appeals Tribunal[6].

“That 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.”

From these examples, it is apparent that, in considering whether to accede to the complainant’s request, I should not be overly stringent and, certainly not more stringent than the standard that would apply in the ordinary courts. 

2.  Was the correct respondent on notice of this hearing and given an opportunity to be heard?

Following the submission of the complaint form on September 21st 2023 on which she indicated that her employer was Andrew Currie, the WRC sent a copy of the form to Mr Currie in Belfast.  It is apparent that Mr Currie sent the form to MMW Solicitors because, on October 10th 2023, Mr Michell confirmed to the WRC that his firm had come on record for their client and that he objected to a hearing under s.13 of the Industrial Relations Act 1969.

In the Labour Court case of Ballarat Clothing Limited -v- Ann Aziz[7], the Court followed the reasoning of Mr Justice Hogan in the O’Higgins v University College Dublin case (also cited in Auto Depot Limited) and stated:

“In light of this acknowledgement the Court adopts the reasoning set out by Hogan J cited above and allows the appeal.  Not to allow the appeal for such a technical reason where the correct respondent was aware from the commencement of the case that an error had been made and acknowledges it would suffer no prejudice by being named as the correct respondent would amount to a grossly disproportionate response and deprive the appellant of the substance of her right to have the complaint heard and decided on its merits.”

It is clear to me that, when he sent the objection form to the WRC on October 10th 2023, Mr Mitchell was aware that an error had been made on the complaint form.  I have reached this conclusion because, on his covering email, he states that he has come on record “for the respondent” and on the form itself, he wrote the name of the respondent as “ACH Capital Limited / Andrew Currie.”

No prejudice would arise for the respondent by correcting the name on the complaint form, because they have been on notice from the start that the complaint has been submitted and, since then, they have had an opportunity to respond. 

3.  Was the incorrect respondent named as a result of a technical, clerical or administrative error?

In his judgement in the case of Sandy Lane Hotel Limited v Times Newspapers[8], Mr Justice Hardiman gave short shrift to the plaintiff’s case that the omission of the word “Co” from the company’s name was a clerical error.  His views were bolstered by the fact that the plaintiffs were “a consortium of businessmen in the course of a complicated series of arrangements made for tax planning purposes, in which they obviously had the benefit of the best legal and taxation advice.”

Mr Justice Hardiman’s findings include a reference to the case of Re: Maere’s Application[9], where the term, “clerical error” was described as,

“…a mistake in the course of some mechanical process such as writing or copying as distinct from an error arising, e.g. from the lack of knowledge, or wrong information, in the intellectual process of drafting language to express intention”.

We were informed at the hearing by the complainant that her solicitor made a mistake by inserting Andrew Currie instead of ACH Capital Limited on the complaint form.  To my mind, a technical, clerical or administrative error is one made by a person not qualified to know the correct term to use or one that results from a mis-print or a mis-spelling.  The complainant is legally qualified, and, before submitting this complaint to the WRC, it was reasonably within her capacity to establish the correct name of her employer. 

Correspondence sent by MMW Solicitors to the complainant on September 13th, 14th and 20th all refer to her employer as “ACH Capital Limited.”

I am satisfied that the naming of Andrew Currie as the respondent was not a simple clerical or administrative error, but that the incorrect name was inserted by the complainant or her solicitor with the intention of bringing a complaint against Andrew Currie.

4.  Has the complaint been submitted within the statutory time limit?

As has been argued by counsel for the respondent, in the Travelodge case, “notwithstanding the bona fides of the mistake,” the Labour Court held 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.” 

The complainant was dismissed on September 14th 2023 and the time limit for submitting a complaint against ACH Capital Limited expired after six months on March 13th 2024.  This complaint was submitted to the WRC on September 21st 2023 and the complainant applied to amend the name of the respondent at the hearing on September 2nd 2024.  No case was put forward for an extension of the time limit to 12 months.

Conclusion

Based on the case law, I am satisfied that I have some flexibility, outside the statutory provisions, to amend the name of the respondent.  I am also satisfied that no prejudice would arise for the respondent if I decided in favour of the complainant in this regard.  Considering the third criterion however, I find that there is some distance between a clerical or administrative error and the failure of the complainant to correctly name her employer on the complaint form.  Unlike the companies named in the Auto Depot case, Andrew Currie and ACH Capital Limited are separate, distinct and significant and legal entities.  As the complainant is a solicitor, and, as she consulted a solicitor when she submitted this complaint to the WRC, it is my view that some more rigorous attention could have been applied so that the respondent was correctly named.

Considering the fourth criteria, that of the time limit, it is my view that I must accede to the authority of the Labour Court in the Travelodge case and find that I cannot substitute the name of the complainant’s former employer for the name of the respondent, where the time limit for submitting a complaint against that entity has expired.

I find that I have no jurisdiction to inquire into these complaints because they have been submitted against the incorrect respondent.  I find that a sufficient argument has not been made to permit me to amend the name of the respondent and finally, I find that the time limit for submitting the complaints against the correct respondent has expired.

Respondent wrongly named, time limit for submitting a complaint