Complainant

Respondent

Parties

Daryl  Malone

Barry Whitelaw

Complainant

Respondent

Anonymised Parties

Representatives

Ms.Clare-Ann Temple, Benville Robinson LLP Solicitors

No Appearance

Act

Complaint 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-00057718-001

14/07/2023

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

CA-00057718-002

14/07/2023

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

CA-00057718-003

14/07/2023

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

CA-00057718-005

14/07/2023

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

CA-00057720-001

14/07/2023

The Complainant commenced employment on 9th August 2021. The Complainant was a permanent, full-time employee, in receipt of a average weekly payment of €417.00. The employment was terminated on 27th February 2023.

On 14th July 2023, the Complainant referred the present set of complaints to the Commission. Herein he alleged that his former employer dismissed him without recourse to any form of procedure, that he did not receive a contract of employment at or near the commencement of his employment and that he was routinely underpaid towards the end of his employment. This matter was referred with, and heard in parallel to, other complaints listed under file reference ADJ-00046856, and decision should be read in conjunction with the same.

A hearing in relation to this matter was convened for, and finalised on, 4th December 2023. These hearings were conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

At the outset of the hearing, an extensive discussion occurred regarding the correct Respondent for the purposes of the present complaint. In circumstances whereby this matter may be determinative of the entire proceedings, it will be considered in advance of the substantive matter.

At the outset of the hearing, the representative for the Complainant submitted that the correct Respondent for the purposes of the present complaint is an individual that acts as a director for a number of companies.

In this regard, the Complainant stated that the Respondent operates three individual barbers, operating under a single named franchise. On 6th December 2021, the Complainant was presented with a contract of employment. This contract listed his employer as the general franchise name, which is not of itself a legal entity. Regarding place of work, the contract list three different venues, each of which the Complainant understood to be a different legal entity. In this regard, the Complainant submitted that the common factor between all premises was the managing director. He submitted that this was the person that interviewed him and was his line manager across all three premises. He further opened correspondence that was issued to him in relation to his employment, that was signed by the managing director in a personal capacity. Having regard to the foregoing, the Complainant, via his representative, submitted that his former employer was in fact the managing director of companies, employing him in his personal capacity. In this regard, she submitted that any employer has a statutory duty to set out their legal title in writing at the outset of the engagement. In circumstances whereby this did not occur, she submitted that the correct employer is the person that acted as signatory to the relevant correspondence and remained the sole point of contact for the Complainant across the three sites.   

As set out above, the Respondent issued no submission or called no evidence in defence of this preliminary issue. In addition to the foregoing, it is clearly apparent that both potential Respondents were on notice of the hearing and the submission to be raised by the Complainant in this regard.

By submission, and at the outset of the hearing, the representative for the Complainant submitted that the correct Respondent for the purposes of the present complaint is the natural person impleaded in the present matter.

While it is noted that the Respondent provided no submission or comment in relation to this matter, it still falls to the Complainant to prove that the above-mentioned person was in fact his employer and, as a consequence, attracts liability under the impleaded Acts.

In this regard, the Complainant is correct in that the statement of terms, as issued, is apparently silent as to the legal title of his employer. In this regard, it is noted that the title on document refers to a franchise operation which is not the Complainant’s employer. Under the section “Employer / Place of Employment”, the form simply states “Dalkey / Blackrock / Cornelscourt”. From the evidence of the Complainant, it is apparent that each of these sites is a separate legal entity, with the Complainant working primarily at the Dalkey site.

As part of the appendices to the Complainant’s submission, he opened the documentation received from revenue. In this regard, the same indicates that the Complainant had been engaged by an alternative company in 2021, and that the Complainant was paid by a corporate body from 2022 to the date of cessation in 2023. In consideration of the foregoing, it is apparent that the Complainant’s paymaster was this organisation towards the end of his employment.

As part of his submission, the Complainant stated that the only correspondence received from his employer was signed by the present Respondent, and was silent as to the actual legal identity of his employer. Having reviewed the same, it is apparent that the correspondence in question is again headed with the name of the franchise operation, rather than any specific legal entity. While this is clearly confusing and unacceptable, it cannot be said that it automatically follows that the signatory to the correspondence can be identified as the Complainant’s employer on foot of the same. In these circumstances, such correspond would be required to be signed by the individual making the decision and would not necessarily indicate an employment relationship between the signatory and the recipient.

Having regard to the information provided, it is apparent that the identity of the Complainant’s employer is unclear from both the statement of terms and the correspondence issued in the course of employment. While the Respondent has a legal duty to provide such information at the outset of employment, their failure in this regard cannot serve to attach liability under the impleaded Acts to an individual within the organisation. Rather, the documentation received from revenue indicates that the Complainant was registered as an employee of the Respondent and, towards the end of employment at least, he was regularly paid from this legal entity. Having regard to the foregoing, I find that the named entity was the Complainant’s employer and is the correct Respondent for the purposes of the present complaints.

The substantive complaints in respect to these matters are discussed under file reference ADJ-00046856.

CA-00057718-001- Complaint under the Terms of Employment (Information) Act 1994

I find that the complaint is not well-founded.

CA-00057718-002- Complaint under the Unfair Dismissals Act

I find that the Complainant was not unfairly dismissed by this Respondent, and the complaint is not well founded.

CA-00057718-003- Complaint under the Terms of Employment (Information) Act 1994

I find that the complaint is not well-founded.

CA-00057718-005- Complaint under the Payment of Wages Act

I find that the complaint is not well-founded.

CA-00057720-001- Complaint under the Payment of Wages Act

I find that the complaint is not well-founded.

Correct Respondent, Unfair Dismissal