Complainant

Respondent

Parties

Iana  Iomer

Bidvest Noonan (Roi) Limited

Representatives

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Pooja Sawant HR Rep

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-00080328-001

21/02/2025

In a related complaint ADJ-00057155, it was alleged that training payments made to the employee were unlawfully deducted. While not in the original form the complaint was detailed in supplementary documentation sent to the Commission.

In Galway-Mayo Institute of Technology -v- Employment Appeals Tribunal and Others [2007] IEHC 210, Charleton J. of the High Court quashed an EAT decision upholding a complaint under a statutory provision that neither party had sought nor had notice of. In so doing, he set out the approach to be adopted where a statutory remedy is sought either in writing or orally during a hearing:

 “It follows from the foregoing that a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice. For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it. If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.”

In the High Court Judgement in County Louth VEC -v- Equality Tribunal & Brannigan (2009) IEHC 370, Mr Justice McGovern held:

 “I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.”

Albeit held to be obiter by Supreme Court, these comments are widely regarded as settled law.

As the Respondent was not in a position to reply to that second claim the matter was adjourned.

However, in a related claim this tribunal on the same facts ruled as follows:

An employment contract is not fixed in stone and can be changed by agreement. That change to the Complainant’s contract occurred when he signed a document dated the 15th of October 2024 which stated:

“I have read and agree to the above terms and understand that sponsorship provided is conditional to fulfilling these terms. I hereby accept that if I do leave in advance of the 2 yer term as specified above, I will repay the Company 100% of the course cost prior to leaving the business.”

On signing this agreement, it became part of the employment contract.

The complaint is not well founded because there was an employment contractual term that provided for the deduction which was signed by and agreed by the Complainant many months prior to the deduction arising pursuant to the express term that was agreed to. As the employment contract had been amended voluntarily and signed by the employee, the deduction was lawful.

The Complainant failed to attend at the reconvened hearing.

The Respondent attended and was ready to rebut the allegations being made against them. The Complainant did not attend.

The Respondent attended and was ready to rebut the allegations being made against them. The Complainant did not attend.

The Complainant was notified of the hearing and had consented to email communication. As she was properly notified of the hearing and failed to attend, I must dismiss the claim for failure to attend at the hearing.

I find that the complaint is not well founded as the Complainant failed to attend at the hearing to present their case.

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