ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00053765

Parties:

Complaint:

Date of Adjudication Hearing:  18/02/2025 & 09/09/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant contends that he was unfairly dismissed.

Summary of Complainant’s Case:

A number of submissions were made on behalf of the Complainant, including an initial submission arguing that the correct respondent employer was impleaded and a subsequent replying submission to the Respondent’s case that as the incorrect employer was impleaded there is no jurisdiction to hear the complaint.

A complaint was lodged by the Complainant with the Workplace Relations Commission on the 23rd of August 2024 seeking an Adjudication under Section 8 of the Unfair Dismissal’s Act, 1977 to 2015.

The complaint form to the WRC named Mr. Mohammad Habib Ansari as the Complainant’s Employer.

The Respondent sought Adjudication on a preliminary matter at the previous WRC hearing on the 19th of February 2024 asserting the position that the Complainant had never been employed by the Respondent, and that the incorrect party was named in the initial complaint form.

The Complainant refutes the Respondent’s position on the following grounds:

1. a) The Respondent at all times had authority over hiring, strategic decision making and overall business direction and always had acted in his capacity as employer in his dealings with the Complainant.
2. b) The Respondent hired the Complainant and made the decision to dismiss the Complainant and in so doing, was assuming the role of employer and not manager.
3. c) It is our submission that the preliminary issues set forward by the Respondent, is not well founded. Further, the Complainant has grounds to make an application to have the complaint form amended and as a consequence the WRC has jurisdiction to hear the substantive complaint of Unfair Dismissal under the 1977 Act.

Background

The Complainant’s salary was paid by MH Pamir Limited (a Limited Company) as paying agent and the 2021 and 2022 Contract of Employment naming MH Pamir Limited as Employer, was signed by the Respondent not as Manager but in his capacity as Director/Owner of the company, and therefore as the Complainant’s Employer.

MH Pamir Limited is a Private Company limited by shares. It’s registered address is the same address as the Apache Pizza Restaurant where the Complainant was always employed.

A Companies Registration Office printout in respect of MH Pamir shows the Respondent as a Director of this company.

The Complainant commenced employment on the 8th of November 2021. The Complainant was hired by Mr. Mohammad Habib Ansari and he was answerable to him in the performance of his tasks and duties as an employee.

The Complainant accepts his wages were paid by MH Pamir as paying agent and that the 2021 and 2022 Contracts of Employment name MH Pamir as employer. The Respondent signed the Contract as Director/Owner of the company and not, as stated by the Respondent, as Manager.

The Complainant would ask that the Adjudicator take into consideration the fact that the employer was fully on notice and accepted these proceedings from the outset.

In any event, if MH Pamir is indeed the correct party to the proceedings, the Complainant would ask that the Adjudicator accept the Complainant’s late application to amend the complaint form, in the interest of justice and fair procedures.

Legal submissions

A recent case before the Workplace Relations Commission (a Lorry Driver v a Waste Management Company) ADJ-00024354 examined the factors when one party to proceedings in wrongly named.

In the High Court, Court decision of County Louth VEC v Quality Tribunal 2009 IEHC370 outlined the circumstances in which proceedings, before a statutory tribunal can be amended and held that “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” and further “it could cogently be argued that in keeping with the decision in County Louth VEC v Equality Tribunal and by application of the principle of equivalence, the Court should not adopt a more stringent stance in relation to the substitution of parties that is available in the High Court pursuant to that role”.

Another WRC case which adopted this principle with approval was A Civil Engineer v A Concrete Manufacturing Company ADJ-00027348.

In the Labour Court case of Auto Depot Limited v Vasile Mateiu, the employee made an application in the course of proceedings before the Labour Court under the Unfair Dismissal’s Act to amend the name of the employer from Auto Depot Tyres Limited to Auto Depot Limited. The Labour Court allowed the request for the amendment and in doing so, held that “accordingly the Court considers the erroneous inclusion of Auto Depot Tyres Limited on the WRC Complaint Form to be no more than a technical error. The Court is fully satisfied that the employer’s name can simply be amended on the paperwork to reflect its correct legal title, that of Auto Depot Limited”.

In the Auto Depot Limited v Vasile Matieu Case, a number of factors were taken into consideration arriving at the decision and the following paragraphs as sited in particular “having regard to the forgoing and relying in particular in High Court Decision in Capital Food Emporium, the Court is fully satisfied that the correct employer has been pursued by the Complainant. The Court is further fully satisfied that the Respondent party that appeared before the Court was the Complainant’s employer. The party was fully aware of the Complainant’s complaints to the WRC from July 2017. He knew precisely from whom the complainants were and to what the complaint’s referred.

The Respondent party had full opportunity to be heard and to answer those complaints. The Court is therefore equally satisfied that the employer will suffer no prejudice or injustice by its decision on this preliminary matter”.

Another case, namely the High Court decision in O’Higgins v University College Dublin and another, 2013 (21MCA) Mr. Justice Hoban held

“Even if the wrong party was, in fact so named, no prejudice would ever was caused by reason of that error (if, indeed, error it be)… in these circumstances, for this Court to hold that, the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the Court”.

For the WRC to decline jurisdiction in these circumstances and on the grounds that the incorrect employer was named in the original complaint form, would amount to “a grossly disproportionate response”, as envisaged in the O’Higgins case.

In the Supreme Court decision of Halal Meat Packers (Ballyhaunis) Limited v Employment Appeals Tribunal 1990 ILRM293 the obiter of Walsh J. is of relevance

“This present case indicates a degree of formality, and even rigidity, which is somewhat surprising. It is rather ironic turn in history that this tribunal which was intended to save people from the ordinary Courts would themselves fall into the rigidity comparable to that of the common law (before it was modified by equity).”

We would submit that this approach is in line with the principle that the Statutory Tribunals, such as the WRC, should operate with the minimum degree of procedural formality consistent with the requirements.

The Preliminary Issue Arising

In relation to the Respondent citing of McKenna v Brennan (ADJ-00052020), we would respectively submit that this case be distinguished on the facts as follows: -

1. a) No Contract of Employment was signed by either employer or employee.
2. b) The complaint was in respect of work claimed in respect of a “trial day”.
3. c) The employee’s claim was for the sum of €44.45.

By way of summary, the Complainant makes the following Submissions: -

1. a) The Complainant named Mr. Mohammad Habib Ansari as his employer in these proceedings, as opposed to the actual name of the Limited Company that paid his wages and was named on the Contract.
2. b) Mr. Mohammad Habib Ansari and the company MH Pamir Limited was fully on notice and accepted these proceedings from the outset.
3. c) No issue regarding the issue concerning the incorrect employer was notified by the employee’s employer to either the employee or the WRC prior to the Respondent’s Submissions.
4. d) The correct employer appeared at the hearing with its legal representatives.

Summary of Respondent’s Case:

It is submitted that the replying submissions from the Complainant’s representative make two entirely contradictory arguments, which are as follows:

(a) The replying submissions contend that Mr. Habib Ansari is the correct Respondent.

(b) The replying submissions suggest that MH Pamir should be substituted as Respondent in the place of Mr. Habib Ansari.

Both arguments are addressed below. By way of summary; it is unequivocally clear that Mr. Habib Ansari was never the Complainant’s employer. This is not a case where the Complainant has inadvertently used the incorrect title, or the trading name for a company. With the benefit of legal advice, and holding a copy of both the 2022 Contract and the payslips clearly identifying MH Pamir as the Complainant’s employer, the Complainant elected to pursue Mr. Habib Ansari in his personal capacity. Any complaint against MH Pamir, which is not a party to the proceedings and has not participated or engaged with the claim at any point in time, is manifestly statute-barred.

The Suggestion that Mr. Habib Ansari was the Employer

In paragraph 10 of the replying submissions, the Complainant “accepts his wages were paid by MH Pamir as paying agent and that the 2021 and 2022 Contracts of Employment name MH Pamir as employer”. With respect to the Complainant, this should be the end of the matter.

The Respondent is a director of MH Pamir. While it would make no difference whatsoever to the application of the doctrine of corporate personality, it is worth noting that the Respondent is not even the sole director of MH Pamir.

The fact that the Respondent signed the 2021 and 2022 Contracts on behalf of MH Pamir and acted as the Complainant’s manager has no impact on the clear legal position that MH Pamir was, at all material times, the employer. It is perfectly normal for a director of a small company to act as a manager. In accordance with section 158(2) of the Companies Act 2014, “[the] business of a company shall be managed by its directors.”

The replying submissions suggest that the Brennan decision cited by the Respondent can be distinguished, inter alia, on the basis that “no Contract of Employment was signed” in that case. This point of difference between the two cases harms, rather than helps, the Complainant’s cause. While there was no contract of employment in Brennan, which may have created a degree of uncertainty, the WRC still rejected the unfair dismissal complaint by way of a preliminary decision on the basis that the Complainant pursued the incorrect Respondent. In the present case, there were two contracts of employment, both identifying MH Pamir as the employer. It simply must have been clear to the Complainant and his legal representatives when lodging this complaint that MH Pamir was the employer.

The Substitution of Parties

While it is not cited by the Complainant, section 39(4) of the Organisation of Working Time Act 1997 (hereinafter, “the 1997 Act”) permits employees to apply to the WRC for leave to institute proceedings against the correct Respondent where the wrong party has been named through inadvertence:

“(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...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”. (emphasis added).

In the present case, the misstatement was plainly not due to inadvertence. The Complainant was legally represented at all material times when lodging the proceedings and held a copy of the 2022 Contract and his payslips, each of which identified MH Pamir as his employer. Indeed, the Complainant still contends that Mr. Habib Ansari was his employer within the meaning of the 1977 Act. Accordingly, there could be no question of section 39(4) of the 1997 Act being applicable in the present case.

The principle that section 39(4) of the 1997 Act is not engaged where a Complainant holds payslips and a contract identifying the correct party was applied by the WRC in Thomas v HSE (hereinafter, “Thomas”):

“ I accept that the correct name of the respondent was on the complainant’s pay slip and contract. I accept that the complainant had lodged three previous complaints against the correctly named respondent. The complainant chose not to institute fresh proceedings under the Unfair Dismissals Act 1977 against the correct employer. The authorities cited by the complainant refer to the misnaming of the employer as opposed to substituting the employer for a different legal entity. HSE was not the employer in the instant case.”

The WRC found that it did not have jurisdiction to hear the complaint, in circumstances where the incorrect party was named and substitution was sought outside the limitation period. The further significance of Thomas is outlined below, under the next sub-heading.

Substitution in Statute-Barred Claims

Section 8(2) of the 1977 Act contains the following limitation periods:

“(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General—

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause”.

The well-established test for granting an extension of time for reasonable cause was set out by the Labour Court in Cementation Skanska (formerly Kvaerner Cementation) v Carroll2 (hereinafter, “Skanska”), as follows:

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

In the present case, the following points arise:

(a) No complaint was lodged against MH Pamir within six months of the Complainant’s dismissal, which occurred on 10 July 2024.

(b) The Complainant maintains that the Respondent, and not MH Pamir, was his employer.

(c) The Complainant lodged his complaint against the Respondent on 23 August 2024. The 2022 Contract and one payslip, dated 15 September 2023, were submitted to the WRC by the Complainant’s legal representatives together with the Complaint Form.

It is respectfully submitted that the Complainant could clearly never establish “reasonable cause” for the purpose of section 8(2)(b) of the 1977 Act. The Complainant still does not accept that MH Pamir was the employer. The Complainant has been legally represented at all material times. The Complainant’s legal representatives submitted documentation to the WRC together with the Complainant Form which unequivocally stated that MH Pamir was the employer. There is absolutely no reason, good or bad, for the Complainant’s failure to lodge a complaint against MH Pamir within the limitation period prescribed in section 8(2)(a) of the 1977 Act.

In Travelodge Management Limited v Wach (hereinafter, “Travelodge”), the Respondent alleged that the Complainant was employed by a company named ‘Smorgs (Ireland) Limited’. The Labour Court considered and applied the Supreme Court’s binding decision on the addition or substitution of parties under Order 15 Rule 13 of the Rules of the Superior Courts in Sandy Lane Hotel Limited v Times Newspapers Limited :

““From its reading of that judgment it appears to the Court 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. It appears to the Court that even if it had a discretion analogous to that available to the Superior Courts under O.15 r13 of the Rules of the Superior Courts, (and the Court makes no such finding) it would not be appropriate to exercise that discretion in this case. The applicable statutory time-limit prescribed is that prescribed by s.77(5) of the Act. The section provided that a complaint under the Act must be referred to the Equality Tribunal within a period of six months from the occurrence of the event giving raise to the complaint, with a possibility of an extension of a further six months for reasonable cause shown.” (emphasis added)

In the replying submissions, the Complainant refers to the Labour Court’s decision in Auto Depot Limited v Vasile Mateiu (hereinafter, “Auto Depot”) and the WRC’s decision in A Lorry Driver v A Waste Management Company (hereinafter, “A Lorry Driver”). In Auto Depot, the Complainant named a dormant company, Auto Depot Tyres Limited, where the correct Respondent was Auto Depot Limited. In A Lorry Driver, the Complainant used the trading name of the Respondent company and not its full limited liability title.

In Auto Depot, the Court found that the Complainant had made “no more than a technical error” and that the correct legal entity was effectively engaged in the proceedings. The Court was “fully satisfied that the correct employer [had] been pursued by the Complainant”. This decision was followed in A Lorry Driver, with the WRC finding as follows: “...since a party can initiate proceedings in the High Court using a business name, it would be inconsistent with the informal and accessible nature of the procedures set out under the Workplace Relations Act 2015 and Unfair Dismissals Act, 1977 to hold that proceedings cannot be similarly initiated under those Acts.”

In the present case, it is respectfully submitted that the following points demonstrably support the position that substitution should not be granted:

(a) Mr. Habib Ansari and MH Pamir are entirely different parties.

(b) There is no question of the Respondent’s name simply being misstated, or a technical error having arisen.

(c) The Complainant has named the Respondent in his personal capacity, with the benefit of legal representation. The fact that this was done while the Complainant and his legal representatives were in possession of the 2022 Contract and the Complainant’s payslips is, respectfully, completely inexplicable.

(d) MH Pamir has never acknowledged this case, issued any correspondence in connection with the complaint, or had any involvement in these proceedings. MH Pamir has not “accepted these proceedings”, as suggested in the replying submissions.

(e) All correspondence from the WRC in connection with the complaint has issued to the Respondent and his legal representatives; and not to MH Pamir.

(f) A solicitor and counsel for the Respondent appeared at the hearing on 18 February 2025; and not for MH Pamir.

(g) The Complainant and his legal representatives still maintain that he was employed by Mr. Habib Ansari.

(h) Any complaint against MH Pamir is clearly and irremediably statute-barred.

Findings and Conclusions:

Counsel for the Respondent argued that as a preliminary issue, it should be ruled that there is no jurisdiction to hear this case as the incorrect Respondent was impleaded.  The complaint form cited Mohammad Habib Ansari t/a Apache Pizza as the Respondent.  At the first hearing of the complaint, counsel for the Respondent argued that the employer of the complainant was MH Pamir Ltd, that the complainant signed a contract of employment with MH Pamir Ltd and the complainant’s wages were paid and he received payslips with the name of the employer MH Pamir Ltd on the documents.  I note that the Complainant had the benefit of legal advice at the time he submitted his complaint and was in possession of payslip and contract documents citing MH Pamir as the employer.  I note also that the Respondent had legal representation and in that regard a letter dated 20 September 2024 to the WRC stated that they had received instructions from Mohammad Ansari from Apache Pizza and:

“Please note that while our client disputes this matter and intends to defend the case against him, he is prepared to proceed to mediation.” 

While the matter did not proceed to mediation, it is nevertheless incumbent on me to consider whether the correct Respondent was cited, if not, is it permissible to alter the name of the Respondent and issue a decision citing MH Pamir Ltd as the Respondent?

The definitions of employee and employer in the Unfair Dismissals Act provide for persons who enter into or work under a contract of employment and persons by whom the employee is employed under a contract of employment.  It is common case in this matter that the Complainant was employed under a contract of employment by MH Pamir Ltd and his contracts and payslips confirm this fact.  The question then arises, is it permissible to alter the name of the Respondent to that of the entity which employed the Complainant under a contract of employment, i.e. MH Pamir Ltd or if it is necessary for the Complainant to invoke the provisions of Section 39(4) in order to pursue the correct legal entity in relation to this complaint?

I firstly consider whether or not it is permissible to allow the Complainant to simply substitute MH Pamir Ltd instead of the Mohammad Habib Ansari t/a Apache Pizza as the Employer/Respondent in relation to these proceedings. The legal representative acting on behalf of Mr Habib Ansari objected to any such amendment. 

Having considered the matter, I find that there is no statutory power available to an Adjudication Officer to amend the title of proceedings in cases before them except for very limited and express circumstances and only where a decision has already issued.

In considering this matter, I note that the Courts have held in a number of cases, that statutory adjudicative bodies (such as the WRC) should not adopt a more stringent procedural approach than that adopted in ordinary litigation. In this regard, the Labour Court held in the case of Travelodge Management Limited -v- Sylwia Wach EDA1511 that:

“The decision of the High Court in County Louth VEC v Equality Tribunal [2009] IEHC 370 is a seminal case on the question of when proceedings before a statutory tribunal can be amended. In that case McGovern J 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.” The ratio of that case appears to be that the procedures adopted by statutory tribunals in relation to the amendment of non-statutory forms used in the initiation of claims should not be more stringent than those that apply in the ordinary courts. 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”.

The Labour Court also held in the Travelodge case, in referring to Order 15, Rule 13 of the Rules of Superior Courts (S.I. No. 15 0f 1986) which makes provision for the amendment of proceedings initiated in the High Court in which parties are improperly named, that:

“It could cogently be argued that in keeping with the decision in County Louth VEC v Equality Tribunal, and by application of the principle of equivalence, the Court should not adopt a more stringent stance in relation to the substitution of parties that is available in the High Court pursuant to that rule.”

Having regard to the foregoing authorities, I am satisfied that certain case law has found it is permissible for statutory Tribunals, such as the WRC, to allow a party to amend or substitute the name of an Employer/Respondent in proceedings in certain circumstances and that any such application must be considered on the merits of the individual case.

However, I am also cognisant that there is a further established key principle which has emanated from the Courts and which must be taken into consideration when deciding on the merits of any such application for an amendment to the name of an Employer/Respondent, namely whether or not the action in question against the party is statute barred. The Labour Court also addressed this issue in Travelodge case and held that:

“ ….. it appears to the Court 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.”

In applying this jurisprudence to the facts of the instant case, it is clear that the application to amend the name of the Employer/Respondent has not been made within the applicable time limits that govern the referral of complaints under Section 8(2) of the Unfair Dismissals Act 1997. The Complainant has claimed that the alleged unfair dismissal occurred on 14 July 2024 and therefore, the alleged contravention under which the instant complaint has been referred could not have occurred any later than that date. I note that the application to amend the name of the employer/respondent was not made by the Complainant until the date of hearing, namely on 18 February 2025 and therefore, was clearly made outside of the statutory time limits which govern the referral of the complaint under the Act. In all of the circumstances and jurisprudence outlined, I find that I do not have jurisdiction to allow the Complainant to amend or substitute the name of the Employer/Respondent in these proceedings from Mohammad Habib Ansari t/a Apache Pizza to MH Pamir Ltd.

I now consider the question can the Complainant institute proceedings against the correct Respondent employer?

Section 39(4) of the Organisation of Working Time Act 1997 provides as follows:

“(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...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”.

As is clear from a careful analysis of 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 an Adjudication Officer 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, notwithstanding that the time specified under the said enactment or statutory instrument within which such proceedings may be instituted has expired.

It is clear that, in order to grant leave to an employee to invoke the provisions of subsection (4), an Adjudication Officer will have to be satisfied that the conditions specified in the subsection are met, namely: -

• (a) That a complaint was previously initiated in respect of the same matter against an incorrectly named or described party,
• (b) The proposed Respondent has been afforded an opportunity to be heard in relation to the application,
• (c) That the error in naming or describing the employer in the original case was due to inadvertence, and
• (d) That the proposed new Respondent would not suffer an injustice if leave is granted.

In applying the above tests to the instant case, I am satisfied that the conditions outlined have been satisfied. In relation to (a), it is clear that the Complainant has already initiated proceedings in respect of this matter against an incorrectly named party.  In relation to (b), the proposed Respondent has been afforded the opportunity to be heard.  In relation to (c) the issue of “inadvertence”, I note that the word “inadvertence” is defined in the Collins Concise English Dictionary as “a lack of attention; heedlessness; an oversight; slip” and I give the Complainant the benefit of the doubt in this case.In relation to (d)  in considering the issue as to whether the proposed new Respondent would suffer an injustice, I am satisfied that Mr Mohammad Habib Ansari is one of the Directors of MH Pamir Ltd and was fully aware from the outset of the Complainant’s intention to initiate proceedings in relation to the matters which are the subject of the instant complaint. In this regard, I note that the solicitor acting on behalf of Mr. Habib Ansari acknowledged notification from the WRC of the original complaints by letter and indicated that his client would be prepared to engage in mediation in relation to the matter.   Having regard to the foregoing, I am satisfied that MH Pamir Ltd would not suffer any injustice if leave is granted to initiate proceedings against them in relation to these matters.

Accordingly, I am prepared to grant leave to the Complainant pursuant to Section 39(4) of the Organisation of Working Time Act 1997 for leave to initiate proceedings against MH Pamir Ltd in relation to the complaint under the Unfair Dismissals Acts, 1977—2015.

For the sake of clarity from a procedural perspective and having regard to the fact that the provisions of Section 39(4) do not provide for the substitution of one Respondent with another in a claim already in being, in circumstances where leave is granted pursuant to Section 39(4), the Complainant must then initiate his or her claim afresh against the correct party through the established procedures of the WRC by completing the normal initiating form.

Decision:

Based on the findings and reasons above, I have decided that I do not have jurisdiction to inquire into the complaint under the Unfair Dismissals Acts, 1977—2015,  as the incorrect employer had been named in the complaint referred to the Workplace Relations Commission under the Act.

I find that the misstatement of the Respondent’s name on the Complaint Referral Form presented to the WRC in respect of the initial proceedings was due to inadvertence. Accordingly, I grant leave to the Complainant pursuant to Section 39(4) of the Organisation of Working Time Act 1997 to initiate proceedings against MH Pamir Ltd in relation to the complaint under the Unfair Dismissals Acts, 1977—2015.  

Dated:   24-10-25

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: