Complainant

Respondent

Parties

Mr Andrei Cracut

Muldoon International Transport

Representatives

Self-Represented

Mr Rory O'Neill Mallon Solicitors LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00068644-001

15/01/2025

This matter came before the Workplace Relations Commission dated 15/01/2025 as a complaint submitted under section 18 of the Parental Leave Act, 1998.  The Complainant alleges contravention of the above-named statute namely that he was penalised by his employer for exercising or proposing to exercise or having exercised his entitlement to parent’s leave.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 02/05/2025.    

The Complainant at all material times was employed as a HGV driver by the Respondent.  The Complainant worked 50 hours per week approx for which he was paid €750 net per week.  The Complainant commenced employment with the Respondent on 14/05/2018 and remains an employee of the Respondent as confirmed by the Respondent at hearing. 

The Respondent is a small haulage company established in 2018. 

The Complainant alleges that he was penalised on two occasions namely his social welfare parent’s leave benefit was withdrawn and when he received a letter from the Respondent regarding his unauthorised absence from work.     

The Complainant submits he had assumed he had been granted the parent’s leave albeit he submits he hadn’t actually specified the exact dates he wanted and when the Respondent said to “leave it with me” he thought that meant the leave had been authorised.  Notwithstanding, the Complainant submits that he would have been taking leave anyway regardless of whether it was authorised or not. 

The Respondent refutes the allegations and submits the Complainant was not granted parent’s leave as when he applied for leave he hadn’t specified what type of leave he was proposing to take and he hadn’t provided dates or any other particulars in writing as provided for in the legislation.  The Respondent submits the first they heard of the Complainant being on parent’s leave was when they received a letter from the Department of Social Protection.   

The Respondent provided a written submission and supporting documentation in advance of hearing. The Complainant relied on the detail provided by him on his WRC complaint form together with supporting documentation by way of screen shots of text messages and photographs of correspondence.  The Complainant filed a response to the Respondent’s submission on the day prior to hearing.

It was indicated to the parties that I would reserve my position on the incorrectly named respondent and the incorrectly impleaded legislation having heard submissions from the parties on same and that I would then proceed to hear the substantive case. 

It is noted there is confusion in regard the legislation impleaded compounded by the fact the terms parental leave (text from Complainant to Respondent 19/12/2024 & 10/01/2024) and the term parent’s leave as set out in the narrative on the WRC complaint form would appear to have been used interchangeably by the Complainant. 

The confusion is further exacerbated by the Complainant’s assertion that he “clearly mentioned” he was looking for leave from the “start of January to the 2nd week of May”.  I note accordingly from that assertion that the Complainant was seeking leave for approximately between 16 and 17 weeks.  It should be noted parent’s leave entitles each parent to 9 weeks’ leave during the first two years of a child’s life.  It would appear the Complainant was seeking a combination of parent’s leave and unpaid leave none of which was reduced to writing by him in applying for this leave combination.       

CA-00068644-001

Preliminary issue incorrectly named Respondent

The Complainant submits he thought this was the correct name and he didn’t know that leaving out “limited” was important.   Upon inquiry at hearing the Complainant submits he never received payslips during his employment. 

CA-00068644-001

Preliminary issue incorrectly named Respondent

The Respondent provides a sample payslip of the Complainant’s which documents the correct name of the Employer.  The Respondent submits the Complainant is fully aware of the correct title which he had set out previously when he had applied for paternity leave and same is exhibited.  The Respondent submits the Complainant is well aware that his payslips are available for him to collect every week in the office and, furthermore, the Respondent in the past has provided him with payslips which all clearly set out the correct Respondent name when he was applying for a mortgage.    

The Respondent does not consent to the amendment of title. 

CA-00068644-001

Preliminary issue incorrectly named Respondent

I note the Respondent submits that the Complainant has incorrectly named the Respondent on his WRC complaint form and consent to amend is not forthcoming.  I note there is no legal entity called Muldoon International Transport documented by the Complainant as his employer on the WRC complaint form. 

It is common case the correct legal name of a respondent must be documented on a decision that issues from the WRC to ensure there in no ambiguity in the event of the parties seeking any potential appellate or enforcement pathway. 

I note the Respondent has opposed an amendment to the title and does not consent to same.

I note the Complainant who presented as a litigant in person did not make an application that I invoke the jurisdiction vested in me to amend the title. 

Notwithstanding, I am obliged to fulfil my statutory duty to make all relevant inquiries into this complaint and in so doing I am obliged to consider if it is legally permissible for me to amend the name of the Respondent in the instant case.    

The Relevant Law

Section 39 of the Organisation of Working Time Act, 1997 (“the OWT Act”) provides that “a relevant authority” can amend the form so that the correct employer is named in circumstances where a respondent objects to an application to amend. 

The statutes listed in section 39 of the Organisation of Working Time Act include the Parental Leave Act, 1998 under which this complaint is filed.  Accordingly, I am satisfied that I have authority to amend the name of the Respondent if I find that it is appropriate and reasonable to do so.

Section 39 of the Organisation of Working Time Act, 1977 provides as follows:

39.—"(1) In this section “relevant authority” means a rights commissioner, the Employment Appeals Tribunal or the Labour Court.

(2) A decision (by whatever name called) of a relevant authority under this Act or an enactment or statutory instrument referred to in the Table to this subsection that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by any party concerned, be amended by the authority so as to state correctly the name of the employer concerned or the other material particular.

(3) The power of a relevant authority under subsection (2) shall not be exercised if it would result in a person who was not given an opportunity to be heard in the proceedings on foot of which the decision concerned was given becoming the subject of any requirement or direction contained in the decision.

(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.”

Section 39(4)(b) of the OWT Act provides that where a complainant has incorrectly named a respondent and where “the said misstatement was due to inadvertence,” then, he or she may apply to have the complaint heard against the correct respondent.  To permit a complainant to have his / her complaint heard, I must be satisfied that to do so would not “result in injustice being done to the proposed respondent.” 

In making my decision I am guided by the majority determination of the Employment Appeals Tribunal (EAT) in Jeevanham Al Tambraga v. Orna Morrissey and Killarney Avenue Hotel [UD36/2011] where the Tribunal considered its powers under section 39 of the OWT Act and reached the following conclusion:

“The majority acknowledge that s.39 of the Organisation of Working Time Act 1997 gives certain scope to the Tribunal for amendment of the name of the employer.  Such power is qualified quite significantly in s39(4)(b) of such section noting 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.”  [emphasis added]

The Tribunal found that “…there is no inadvertence in this matter.  In evidence the claimant stated that he had his payslips which clearly state his employer…”

It is therefore clear that in order for an Adjudication Officer to grant leave to a complainant to change the name of a 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. 

In considering whether to amend the name of the Respondent, I must examine if the Complainant should have known the name of his employer. 

Whilst I recognise the Complainant presented as a litigant in person and did not have legal representation on the day of hearing, I find that the name of the Complainant’s employer was clearly documented on his payslips as exhibited by the Respondent and, despite the Complainant’s assertions at hearing that he never received any payslips,  he clearly did receive payslips from the Respondent when he was applying for a mortgage as the payslips would have formed a crucial element of his mortgage application in circumstances where he would have been required to provide at least three months’ payslips.  I do not accept the Complainant’s assertion that he never received payslips. 

I am satisfied the Complainant would have been aware of the correct title from when he applied for paternity leave earlier in the year as the correct title would have been documented on the relevant paperwork at that time.     

I note the correct title is clearly set out in Anex 3 and Annex 4 provided by the Complainant himself depicting screen shots of the Company website. 

I am satisfied the Complainant was in possession of a number of documents that clearly documented the correct name of his employer throughout his employment and I am unable to find that the misstatement of the Respondent’s name on the complaint form was due to inadvertence because at a very minimum he had knowledge from his payslips of who his employer was at all material times. 

I am satisfied the Complainant failed to exercise due diligence in the filing of his complaint with the WRC.  I am satisfied the Complainant knew or ought to have known the correct legal name of his employer.       

I have considered and I note also the WRC in its guidance notes on procedures in the adjudication and investigation of all employment and equality complaints and disputes which is available online for the benefit of all complainants sets out as follows:

“The Complaint Form should be carefully filled out, correctly completing all relevant sections including the correct name and address of the employer / respondent.  It is vital to ensure the correct legal name of the employer / respondent is entered on the Complaint Form.” [emphasis added]

I find, therefore, that I do not have jurisdiction under section 39 of the OWT Act to change the name of the Respondent in these proceedings to that of the Complainant’s employer for the reasons set out above.

For the avoidance of doubt, there is no requirement that I consider the incorrectly impleaded legislation as I do not have jurisdiction to hear this complaint as presented.       

I find I do not have jurisdiction to hear this complaint.  Accordingly, I am precluded from determining the substantive case.    

CA-00068644-001

For the reasons stated above I find I do not have jurisdiction to hear this complaint.  Accordingly, I decide this complaint as presented is not well-founded. 

Incorrectly named respondent; no consent to amend;