Complainant

Respondent

Parties

Nikola  Uzarevic

Ct Electrical (Ire) Ltd

Representatives

 Self-represented

Ciaran Hughes Tiernans Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00075948-001

16/09/2025

The Complainant was employed as an electrician by CT Electrical (IRE) Limited from the 28th of August 2023. In 2024 he availed of annual leave followed by Paternity Leave followed by Parental leave from October 2024 to January 2025 at which time he was due to return to work. The Complainant made a claim pursuant to the Unfair Dismissals Act 1977 (as amended) (“the UDA”) alleging that he was unfairly dismissed from his employment. 

The Respondent raised a preliminary issue as to the correct name of the Respondent who had been named by the Complainant. Without prejudice to this preliminary objection the Respondent denied that the Complainant was dismissed by his employer CT Electrical (IRE) Limited at any time and that he left his employment voluntarily in January 2025. 

In this case the Complainant initially instituted a claim to the WRC (“the Initial Complaint Form”) as against an entity which was described as “CT Electric (IRE) Ltd” whereas his employer was an entity named “CT Electrical (IRE) Limited”. The difference relates to the non-inclusion of the letters “..al” to form the word “Electrical” [Emphasis added] on the initial complaint form. There was no dispute that the respondent on the Initial Complaint form was incorrectly named and that the correct title for the Complainant’s employer at all material times, was “CT Electrical (IRE) Limited”. For ease of reference, I shall refer to the entity which was incorrectly named on the Initial Complainant Form as “the Incorrect Respondent” and the entity which employed the Complainant as “the Correct Respondent”. 

When this claim first came before me for hearing on the 19th of August 2025, the solicitor representing the Complainant’s former employer appeared and was very clear that he was instructed by an entity named “CT Electrical (IRE) Limited” and he advised that this entity was at all material times the employer of the Complainant and not the entity which the Complainant had named, which was “CT Electric (IRE) Ltd”. He confirmed that notwithstanding his appearance at the hearing he was not representing “CT Electric (IRE) Ltd” as no such entity exists and further that he was instructed on behalf of the Correct Respondent not to consent to any amendment of the title of the proceedings to reflect the correct name of the Complainant’s employer. The matter was adjourned and on the 16th of September 2025 the Complainant made a request to the WRC pursuant to Section 39 (4) of the Organisation of Working Time Act 1997 (as amended) whereby he sought leave to initiate proceedings against the Correct Respondent. This application was allocated WRC Reference ADJ-00062275 and this file together with ADJ-00057464 were relisted for the 14th of October 2025 but was then postponed until the 9th of January 2026. On that date both parties made submissions regarding the Section 39 (4) application and both parties also indicated their respective intentions to rely on their previous submissions regarding the substantive issue of unfair dismissal as delivered in relation to the initial claim ADJ-00057464. It being apparent that the Section 39 (4) application required oral evidence which potentially overlapped with the evidence as to the substantive issue of unfair dismissal both parties agreed that all evidence would be heard in a single hearing at which both the preliminary issue of the Section 39 (4) application and the unfair dismissal issue would be heard in a single hearing. That hearing took place on the 27th of March 2026.

The Application Pursuant to Section 39 (4)

In support of the Application the Complainant Submitted as follows:

I respectfully request the substitution of the respondent in this case from “CT Electric (IRE) Ltd” to “CT Electrical (IRE) Ltd.” The original naming of the respondent was a misnomer arising through inadvertent clerical error. The intended respondent has always been CT Electrical (IRE) Ltd. The correct respondent has been identifiable throughout and has participated in the proceedings.

As a non-native speaker of English, I did not immediately recognise the difference in the company’s name, and this contributed to the mistake. The error was not intentional, and no prejudice will be caused by allowing this correction.

The Respondent Submitted that the Complainant had received payslips throughout his employment which clearly identified his employer as the “Correct Respondent”

In his written submission the Complainant cited Sandy Lane Hotel Limited –v- Times Newspapers [2011] 3 I.R. 334 as authority for the proposition that a minor clerical error could be overlooked in the interests of justice. He also cited a Supreme Court decision of Hardiman J. in McMullen v. Clancy [2002] IESC 61

Submission in relation to the Substantive Issue of Unfair Dismissal

The proceedings were initiated by way of WRC Complaint form which was received by the WRC on the 6th of March 2025. On that Complaint Form the date of dismissal was stated as the 23rd of November 2024. The submission set out in the Complaint Form (with some typos and syntax corrected), stated as follows:

After I been working with the CT electric IRE ltd for more than 12 months (all things were in I would say normal condition between employee and employer)

In June 2024 I became a father to a first-born son and after three months I applied for a paternity leave and got the documents signed my director. Afterwards I also informed my employer that I would take my parent's leave in full length on 9 weeks straight after my paternity leave. I informed my employer 7 weeks before the parent's leave will begin (6 weeks is minimum). After that on the days specified I went on my paternity leave and straight after on my parent's leave.

On the day 8th of January 2025, I informed my employer that I am coming back to work next week. I suppose to start on Monday 13/01/2024 but couldn't get on site because my safe pass expired and I made a new safe pass on 16/01/2025 and then it started to be weird. Thay told me the weather is too cold, next week I should call them and so on. afterwards I was told that contractor doesn't want any new people on the site and if I can find something else and that we will be in touch.

I was surprised and shocked (my girlfriend was also on parent's leave which also expired and couldn't get back to work because baby was breastfeeding and we went alone in all this) and didn't know my rights. I went to social welfare office and wanted to report this accident [incident] but was told that they do [not] deal with this matter. I decided to go to citizen information and ask for help with this matter. They were very helpful and on their suggestion, I went to social welfare office to ask for any financial support even [though I] is was in employment but don't have any hours and don't make any income. [The Social] welfare officer told me that I am unemployed since 23rd November 2024 and I was shocked and couldn't believe what happened.

My girlfriend was so upset that she started losing her milk and we were so upset and desperate that this thing can happened in Ireland and one of the reasons that we came to this country is that you can work and be paid for your work and that you will be respected by your employer which was not the cease in our home country.

After that I confronted my employer and asked why I was fired and how come that nobody didn't inform me about that and didn't receive any answer after that, so this was our last correspondence.

The Complainant also provided copies of WhatsApp messages between himself and the Respondent.

The Application Pursuant to Section 39 (4)

The Respondent contended that the Complainant was fully aware throughout his employment of the correct legal identity of his employer which was clearly set out in payslips and in the Employment Detail Summary. The identity was also stated correctly in the Certificate of Paternal Benefit which was provided to the Complainant at his request. In such circumstances it was submitted that

The Respondent cited the following authorities:

Jeevanhan Al Tambraga v Orna Morrisey and Killarney Avenue Hotel [2013] 24 ELR 275;

Kennedy v. Daifuku America Ireland Daifuku ADJ-00045001

Andrei Cracut V Muldoon International Transport ADJ-00056428

The Respondent also pointed to the standard wording on WRC Complaint Forms where Complainants are informed that “Tt is vital to ensure the correct legal name of the employer/respondent is entered on the Complaint Form”.

It was the Respondent’s submission that there was no inadvertence and that the appropriate test to be applied was whether a complainant with all the information available to them have been in a position to identify the name of the correct employer/respondent in any given case.  

Submissions in relation to the Substantive Issue of Unfair Dismissal

In summary the Respondent made the following submission in response to the Complainant’s claim:

-          No dismissal took place.

-          No dismissal was communicated to the employee at any time

-          The Complainant returned to his employment and was offered work on the same terms and conditions and refused to return to work.

-          In summary, we say that the Complainant resigned his employment and any claim for unfair dismissal on the 23rd of November 2024 is mis founded

-          No claim for constructive dismissal has been made.

-          At all times, it was understood by both parties that the Complainant was due to return to work in January 2025 and that this return to work was facilitated.

-          We say that the above submissions are supported by the exchange of WhatsApp message between the parties.

The Respondent’s solicitor made more detailed submissions which are considered further in the Findings section below.

The Application Pursuant to Section 39 (4)

Amendment of Existing Proceedings or Fresh Proceedings

In addition to the authorities cited by the parties, there is a considerable body of case law relating to the issue of the amendment of pleadings in civil cases which can also be applied to the amendment of WRC Complaint forms.

There are a number of decisions which suggest a common-sense approach rather than the rigid application of procedural rules.  The exemplar of the judicial approach to such cases is that enunciated by Hogan J in O'Higgins v University College Dublin and The Labour Court [2013] IEHC 431.

Hogan J. was requested by University College Dublin to strike out the action against that party as it had not been named in the notice of motion which initiated the proceedings.  On the last day before the time limit applicable to the action was due to expire, the papers were presented at the High Court Central Office which refused to accept them as the Labour Court had not been included as a party.  The notice of motion had named University College Dublin but not the Labour Court. Instead of adding the Labour Court, in addition to University College Dublin, the Labour Court was substituted for University College Dublin by way of a manuscript amendment to the papers. However, the proceedings were nonetheless served on both parties even though only one (i.e. The Labour Court) had been named on the notice of motion.  University College Dublin applied to have the action as against it struck out as it had not been named in the initiating notice of motion. Hogan J. refused to accede to this application.  One of the issues for consideration was

“Whether the striking out of the proceedings on this ground would compromise the appellant's constitutional right of access to the courts. “

On this issue Hogan J made the following findings:

“…the effective striking out of the proceedings simply by reason of what in truth would have amounted to harmless error would represent an entirely disproportionate interference with the appellant's constitutional right of access to the courts as guaranteed variously by Article34.1, Article 34.3.1 and Article 40.3.1 of the Constitution.”

                                                                                                     [Paragraph 15]

Hogan J. then considered and applied an approach taken by Finlay Geoghegan J. in Re MJBCH Ltd. [2013] IEHC 256. That case concerned a technical amendment in a Company Law matter which, if not granted, would have required the reissuance of the proceedings where the time limit had expired. In that case, Finlay Geoghegan J. made the order to amend the proceedings on the basis of the necessity to construe strictly any measure which restricted the right of access to the courts guaranteed by Article 40.3 and deriving from Article 34.3.1 of the Constitution. Applying the same approach, Hogan J. held (at paragraphs 17 and 18 of the judgement) as follows:

“In my judgment, the same principles apply by analogy to the present case. The proceedings were commenced within time and all relevant parties were duly served in the manner required by [the relevant Rule of the Superior Courts]. The motion paper and affidavits outlined with clarity the case the appellant wishes to make. Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be). The matter could easily have been rectified by the making of an appropriate order amending the title to the proceedings. As in Re MJBCH, there was no overriding policy objective which ordained that proceedings of this kind should be nullified by reason of such essentially harmless error.

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 courts”

That decision did not relate to a claim at first instance but rather to an appeal to the High Court from a decision of the Labour Cout. However, of interest is the fact that the subject matter of the judgement was whether an amendment could be made to the title of the action to reflect the correct identity of the parties where the time limit in relation to the appeal itself had expired. As the finding was that the title could be amended the time limit having expired, the decision is of relevance to the question of whether an amendment can be made to existing proceedings before the WRC where the time limit for the claim has expired.

Another well-known judicial statement in relation to the general approach to amendment of proceedings is that of McGovern J. in County Louth VEC –V- Equality Tribunal [2009] IEHC 370

“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.”                                

[Paragraph 6.2]

The issue in that case was whether a cause of action which was not specifically set out in the originating complaint form could be litigated. The case did not concern the identity of the Respondent as in the present case, but the passage is nonetheless of relevance as reflecting the judicial approach to amendments generally (including before statutory tribunals), where an amendment will be permitted  “where the justice of the case requires it “. 

A similar logic is evident in the decision of the Supreme Court in Halal Meat Packers –v- EAT [1990] ILMR 293

From the foregoing it is evident that amendments can be made to existing proceedings even where the time limit has expired on the basis that the constitutional right of access to the courts should not be unduly restricted (by a court or tribunal) where the justice of a case requires the amendment. However, the decision of the Labour Court in Wach v Travelodge EDA1511, decided in 2015, contains the following statement:

“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.”

Whilst the decision considers the case of Sandy Lane Hotel Limited v Times Newspapers Limited [2011] 2 I.L.R.M 139 it makes no reference to the decision of Hogan J in O'Higgins v University College Dublin and The Labour Court [2013] IEHC 431 and conversely the decision in O'Higgins makes no reference to Sandy Lane. As regards the decision in Sandy Lane itself, it is arguable that the ratio of that case is that the amendment was refused because the error made in naming the incorrect Defendant, an entirely different entity to the one which should have been named was, in the view of Hardiman J. “not a clerical error or anything similar to a clerical error”.

A further observation can be made in relation to the circumstances in Wach v Travelodge. That case concerned an appeal from an equality officer under the Employment Equality Act 1997 and the possible application of Section 88 of that Act. When the decision refusing the amendment was issued, fresh proceeding had already been commenced against the correct respondent and the Labour Court had this to say about that state of affairs:

 “…it is noted that the Complainant has instituted fresh proceedings against her actual employer. It will be a matter for the Equality Tribunal in considering that claim to decide whether the claim is statute barred as against the Respondent in that case. It would be inappropriate to pre-empt the decision of the Equality Tribunal on that point, which can be appealed by either party to this Court.”

Applying all of the above to the question as to whether an Adjudicator can make an order amending the title of, or permitting any other amendment to existing proceedings, it is arguable (to say the least) that notwithstanding the doubt introduced by the decision in Wach v Travelodge, such an order can be made even where the relevant limitation period has passed, where the justice of the case in all of the circumstances so requires, having regard to the constitutional right of access to the courts as guaranteed by the Constitution and the full factual background of the particular case.

All of the foregoing said, it is the case that the legislature, at least in relation to claims covered by Section 39 (4) of the Organisation of Working Time Act 1997 (as amended) (including the present Unfair Dismissal Claim) has provided a special procedure which specifically caters for (and indeed is predicated upon) situations where a claim is made against the incorrect entity and the time limit for making a fresh claim has expired. It is for this reason, and to avoid any doubt as regards the power to amend as discussed above, that I directed that the Section 39 (4) procedure be deployed in the present case in furtherance of my general statutory duty to enquire into the complainant presented to me pursuant to Section 41 (5) (a) (i) of the Workplace Relations Act 2015 (as amended). It should also be noted that in this particular case there was agreement between the parties that this was the appropriate procedure to be applied in the circumstances.

The Section 39 (4) Procedure

Section 39 of the Organisation of Working Time Act 1997 provides at subsection (4) 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 (“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.”

The foregoing procedure is a creature of statute and can only be applied where the preconditions as set out in the provision are applicable. However in interpreting and applying the provisions of Section 34 (4) of the Organisation of Working Time Act 1997 (as amended) it must  be borne in mind that any such interpretation and application must be consistent with the constitutional right of access to the Courts as guaranteed by Articles 34.1,  34.3.1 and 40.3.1 of the Constitution, all of which take precedence over any statutory provision. For this reason, I take the view that the passages quoted above from the decision of Hogan J. must inform any interpretation and application of Section 39 (4).

The term “inadvertence” is not defined in Section 39 or anywhere else in the Organisation of Working Time Act. However, there are many written decisions where the issue has engaged the Employment Appeals Tribunal, the Labour Court and WRC Adjudication Officers.

The issue of the lack of prejudice aside (as it was conceded by the Respondent), the Complainant submitted that “the original naming of the respondent was a misnomer arising through inadvertent clerical error. The intended respondent has always been CT Electrical (IRE) Ltd. As a non-native speaker of English, I did not immediately recognise the difference in the company’s name, and this contributed to the mistake. The error was not intentional.“

Regarding the Sandy Lane decision relied upon by the Complainant this decision turned on what was held not to be a minor clerical error.

The authorities cited by the Respondent will now be considered in more detail.

In Jeevanhan Al Tambraga v Orna Morrisey and Killarney Avenue Hotel [2013] 24 ELR 275 the full text of the conclusion reached by the EAT is as follows:

“The majority are satisfied that there was no inadvertence in this matter. In evidence the claimant stated he had his payslips which clearly state his employer as C Ltd, before the T1A was completed. Clearly the T2 submitted highlighted the issue. This was dated August 24, 2011, and thereafter the claimant and his representative were on notice that there was an error on their part. Further the majority are satisfied that the correct employer was on the claimant's payslip, and that the claimant had trade union representation since 2010 when he was suspended, and who acted for him at all material times.”

The reference to the T1/A and T2 requires explanation. These were forms whereby the claim was respectively, initiated and acknowledged by the parties to a case before the E.A.T. The T2 permitted the respondent employer to set out its “defence” to the case made in the initiating form T1/A. Very often the T2 was a very general document but on some occasions, including in the case the subject matter of this E.A.T. decision, the employer took the opportunity to make detailed written submissions. The Respondent’s T2 “highlighted the issue” regarding the correct title and it is clear that the Claimant and his trade union, which had represented him at all material times, were on formal notice that a mistake had been made. In that case it is apparent that  the Claimant had initially made a mistake but when the error was pointed out to him in a formal document by the party against whom her directed the claim he could no longer be deemed to have been inadvertent to his original mistake.

The Complainant in the present case who was not represented by a trade union was not put on any formal notice by the Respondent of the mistake which he had made prior to the hearing on the 19th of August 2025.

Kennedy v. Daifuku America Ireland Daifuku ADJ-00045001

In this case, despite being afforded time by the Adjudication Officer specifically for the purposes of delivering a submission on the issue of the incorrectly named respondent, the Complainant failed to do so and in effect appears to have made no submissions on the issue at all, a fact which is mentioned twice in the decision. In the present case the Complainant made written submissions as detailed above.

Also, although it is not the basis of the decision, it is clear that the error in the nomenclature of the respondent in that case was more significant than the error made in the present case in that the respondent actually sued in that case was ‘Daifuku America Ireland’ whereas the correct employer was an entity named ‘Daifuku Cleanroom Automation America Corporation’, which is a far more significant error than that which was made by the Complainant in the present case who omitted the letters “..al” from the word “Electrical”

Andrei Cracut V Muldoon International Transport ADJ-00056428

In this case such submissions as the Complainant relied upon contained documents which themselves showed the correct title of the respondent including the word “Limited” which was omitted from the complaint form which was lodged. In the present case the Complainant specifically cited the fact that English is not his first language. In the decision in Cracut, there is no reference to a similar issue having been raised by the Complainant in that case.

I am aware of a number of other cases which were not cited to me where leave under Section 39 (4) was granted.

In Rahman –v- Munster Joinery UD2377/2011 decided in 2013,the E.A.T.  found that the misstatement in relation to the omission of the word “(Ire)” from the title of the Respondent company was a mistake due to inadvertence and was prepared to allow the claim to proceed with the respondent’s  title amended pursuant to Section 39.

The Tribunal noted that

“The Respondent’s name was incorrectly cited simply by omitting “Ire” which is entirely different from inappropriately proceeding against two separate legal entities. It is obvious that a mistake has occurred in this case for which the Claimant should not be penalised…It would be an injustice not to allow the Claimant proceed with his claim in all of the circumstances.”

I have also considered the Labour Court decision in Auto Depot Limited v. Mateiu DWT1922 (decided in 2019) which has been applied a number of times including in Simona Kalinakite v. King Thomond Hotel (technical amendment) ADJ-00035938 (decided in 2022).

A review of the authorities reveals a degree of inconsistency as to what may constitute “inadvertence”. However, on a closer examination of many decisions what can be observed is an assessment not only of the mistake itself but of the circumstances surrounding it including the level of knowledge of the mistake and /or the conduct before and/or after it was made on the part of either or both of the parties. Such issues are clearly relevant to a consideration of all of the facts of the case pursuant to the requirements of the provision but a difficulty arises where they are referred back to and sometimes artificially restricted to a finding in relation to “inadvertence” rather than by reference to the wording of the provision as a whole. Moreover, in addition to the necessity to examine all of the circumstances by reference to the provision as a whole it is also necessary that any interpretation and application of this statutory provision to the facts of any given case must not unduly infringe a constitutional right such as that of access to the Courts which takes precedence over any statutory provision.

In reviewing a selection (though certainly not all) of the available decisions on the issue of the application of Section 39 (4), I have found the decision made and the methodology adopted in An Advocate v. A Community Training Centre ADJ-00006893 (2017) to be the most helpful. The relevant part of the decision states:

“I am satisfied that Complainant Referral Form submitted by the Complainant contained a variation of the name of the company name that employed him i.e. XXX (YY Limited). I accept that in seeking to record the legal name of the respondent employer on this form that the Complainant’s solicitor through inadvertence failed to cite the precise legal name of this entity. In my view, this error was of minor significance and I am satisfied that the actual employer was fully aware at all material times of the instant proceedings.

I am also satisfied that the granting of leave to amend the name of the employer does not result in an injustice or prejudice to the proposed respondent. In this regard, it should be noted that the notification of the original hearing date was sent by letter dated 14th June, 2017 to “Ms. B XXX (YY Limited)” at the registered address of the legal entity that employed the Complainant. On the date of the hearing, Ms. Band her legal representative were in attendance and it was indicated that she was attending in her personal capacity and not as a representative of the entity that employed the Complainant. In the circumstances, I decided to adjourn the hearing to allow for notification of the hearing to be served both on XXX YYY CLG (being the correct legal name of the employer) and Ms. B and I indicated that I would allow the parties to address this issue of jurisdiction further at the reconvened hearing when all relevant parties were notified and in attendance. The oral hearing was reconvened on 18th October, 2017 and both Ms. B and a representative from XXX YYY CLG were in attendance on this date (both parties were represented by the same legal representative at the hearing).

Having regard to the foregoing, I am satisfied that it would be an injustice not to allow the Complainant to proceed with his claim in all the circumstances. Therefore, I find that the misstatement of the Respondent’s name on the Complaint Referral Form was due to inadvertence on behalf of the Complainant. Accordingly, I am prepared to accede to the Complainant’s application to amend the name of the employer pursuant to the provisions of Section 39(4) of the Organisation of Working Time Act 1997.”

The Present Application

In the present case the following issues were not in dispute

1. That the employer’s name was incorrectly stated on the initial application.
2. That by the time the issue of the incorrect name was first raised (on the 19th of August 2025) the limitation period for the initiation of a fresh claim against the Correct Respondent had elapsed [Note this was so whether the date of alleged dismissal was November 2024 or the date of the last communication between the parties in January 2025 - this issue is discussed further in the Substantive Findings section of this decision below.]
3. The Correct Respondent was afforded an opportunity to be heard both in relation to the Section 39 (4) application and in relation to the substantive aspects of the Unfair Dismissal Claim. The parties specifically agreed to this procedure and submissions and oral evidence was offered by both parties on both issues.
4. The Correct Respondent was aware of the fact that the proceedings had issued from the outset because the claim, although naming the respondent incorrectly was addressed to the correct registered office.  The Respondent’s solicitor (very fairly) confirmed that no argument was being advanced that the Respondent would be prejudiced in the event that an order was made pursuant to Section 39 (4).
5. The Complainant (also very fairly) accepted that he did receive payslips, an Employment Detail Summary and a Certificate of Paternal Benefit all of which correctly stated the name of the Correct Respondent

Accordingly, all of the requirements for an application to be successful pursuant to Section 39 (4) are met save and except for the issue as to whether the identity of the Correct Respondent was incorrectly stated due to “inadvertence” within the meaning of that term in paragraph (b) of Section 39 subsection (4).

It is implicit from the Respondent’s submissions that inadvertence cannot arise when a person has the information available to correctly name his employer thus avoiding the mistake. However such an argument appears to me to ignore the fact that human beings are capable of making mistakes where they do not “advert” to the information that is available to them. It seems to me that such a process is the very essence of inadvertence, that is to say the failure to advert or, in simpler terms, a mistake. It must be assumed that the Oireachtas chose the word “inadvertence” deliberately to capture a situation of simple human error and the fact that the word appears on its own and is not accompanied by qualifiers such as “reasonable”, “knew or ought to have known”, “reasonable care” or “due diligence”  in my view indicates that such terms were excluded deliberately, and for the same reason they should not be implied when construing the word “inadvertance”. The provision, it seems to me is to be distinguished from other provisions in Employment Legislation which do use such terms. A notable example is the phrase “reasonable cause” in Section 8 (2) (b) of the Unfair Dismissals Act 1977 (as amended), Section 24 (2A) of the Redundancy Payments Act 1967 (as amended) and Section 41 (8) of the Workplace Relations Act 2015 (as amended). Whilst those provisions have been interpreted in a very rigid manner it would not, in my view, be appropriate for similar interpretations to be adopted and applied to Section 39 (4) which is specifically designed to deal with human error rather than imposing rigid standards of due diligence.

In the present case I take the view that the error was a classic example of inadvertence in the sense that even though the Complainant had the means of knowledge in the form of payslips and other documents, he nonetheless made an error. The error is very similar to that made in Rahman –v- Munster Joinery and it appears to have been in the nature of a spelling mistake made in an attempt to write or transcribe the correct name. It could thus be described as clerical or orthographic in nature, but I do not think it has to fit either description. What matters is that it what occurred was a genuine mistake which was unintentional and in my view, this is exactly what occurred in this case. It follows that I find that inadvertence did occur in this case for the purposes of the application of Section 39 (4).

I would add that I make this finding in a case where the Complainant was not a native English speaker and was unrepresented, but I am aware of cases where the Complainant was a native English speaker and/or was represented (including by a solicitor) and the Section 39 (4) applications have nonetheless succeeded. See for example the case of An Advocate v. A Community Training Centre ADJ-00006893 quoted above.

As the other provisions of Section 39 (4) have been complied with I do not, in this case, need to consider whether the overall circumstances of the case require the substitution of the Correct Respondent in the interests of justice. However for completeness I would state that I am of  the view that to refuse the application to this particular complainant on a legal technicality on the sole basis of such a minor error where there is no prejudice to the respondent,  would, adopting the words of Hogan J. in O'Higgins : “amount to a grossly disproportionate response”.

For all the foregoing reasons I make the order sought and the claim may proceed as against the Correct Respondent.

Having made that order and in accordance with the procedures agreed with the parties I will now set out my findings on the substantive issues raised by the Complainant.

The Unfair Dismissal Claim

Evidence Relating to the Unfair Dismissal Claim

The Applicant represented himself and gave evidence on affirmation. The Respondent was represented by Mr. Hughes of Tiernans Solicitors. Two witnesses gave evidence for the Respondent: Mr. Marcus Tansley and Mr. Michael Connor both also on affirmation.  Much of the evidence was agreed including the text of WhatsApp messages sent between the Complainant and Mr. Connor who was his direct line manager.

The following sequence of events was not in dispute:

The Complainant took a block of leave comprising outstanding holidays immediately followed by Paternity Leave, immediately followed by Parental Leave. All of this was sought from the Respondent and was approved. The leave ran from the 28th of August 2023 to January 2025 at which time the Complainant was due to return to work.

The Respondent approved the Complainant’s Paternity Leave and Parental leave. In October 2024 Mr. Connor sent a text to the Complainant advising him that the Respondent couldn’t hold his position open for him (meaning his deployment to a particular site) but that he was to contact Mr. Connor when he was back, and they could then review the situation. The Complainant did not reply to this text, and he proceeded to take the sanctioned leave. 

There were no further communications while the Complainant was on leave until the 8th of January 2025 when the Complainant sent a text to Mr. Connor saying that he was coming back “this Sunday” and asking whether “we are on the same site”. In a second message he added “I can’t start from Tuesday cos Monday I have to go on safe pass. The response the same day was “Leave it with me as sites not open due to cold weather. I will let you know asap”.

The next text was from Mr. Connor who on the 13th of January 2025 asked the Complainant “are you ready to return to site tomorrow?”. The Complainant was unable to start as suggested due to car trouble which delayed the process of him getting an up-to-date safe pass. That process however was then rescheduled for the following Thursday. This was imparted by text to Mr. Connor. The Complainant then got the safe pass and sent it by text to Mr. Connor on the 16th of January 2025 and he asked “Should I bring this tomorrow to site….? In response Mr. Connor’s text reply was “I’m waiting for confirmation from [The Respondent’s client who operated the site]. It’s possibly going to be Monday but I will confirm asap.”. The Complainant replied “Okay”.

On the 19th of January 2025 the Complainant sent a text asking “Do I go tomorrow morning for induction” [Meaning on-site mandatory health and safety induction]. The response was “I’ve no Confirmed of your interview. Am working on it. This was explained and accepted as meaning that an interview for induction with the client on-site was to be arranged but had not at that time been confirmed. The Complainant’s response was “OK”

On the 20th of January 2025 the Complainant sent a text to Mr. Connor asking, “Any news?”. Mr. Connor’s text response was: 

“We are struggling to get you on site. Client does not want any more labour. If you have something to keep you going take it and I’ll be in touch when more work comes in”.

[This text message is referred to below as “the 20th of January Text]

On the 23rd of January 2025 Mr. Connor sent a message to the Complainant saying: “Tried ringing you. Do you want work?”. It was not disputed that Mr. Connor did make one or two calls to the Complainant’s mobile, and the Complainant did not answer. [This text is referred to below as 23rd of January Text].

The Complainant replied to the 23rd of January text on the 24th of January 2025 (“The 24th of January Text”). The full text (exactly as written) was as follows:

“Yes, but my wife took some shifts this week and I mind the baby all the time. I couldn’t find anything else. I went to welfare to ask for any emergency support and told them that I work for the company but don’t have any hours at the moment and when they checked they told me that I don’t work for CT since 23rd 11 and I was shocked. Can you please tell me why I was fired and how come that nobody didn’t inform me about that?

There were no further communications between the parties. The Complainant did not return to work. The present complaint (as it was originally formulated as against the Incorrect Respondent, was initiated on the 6th of March 2025.

The above evidence was not disputed.

As regards his reaction to the 20th of January Text, the Complainant said that he was shocked. He did not know where he stood. He understood that he was entitled to return after his paternal and parental leave, but he understood the Respondent’s text to mean that he was not entitled to return. He looked for something else as the text had suggested but did not find anything. He spoke to his partner and told her what was happening and she managed to source some work shifts herself and it was agreed that the Complainant would stay at home to mind the baby.

The Complainant was aware that one of his workmates was on the relevant site but was not working due to bad weather. The Complainant assumed after one and a half years’ service that if the Respondent’s client did not want any more labour on the site then he should have been sent to the site and someone with less service should have been laid off instead of him, or in the alternative he should have been sent to work on another site operated by the Respondent. He said that he understood that the Respondent’s workers were swapping sites from time to time and workers were replaced immediately where a worker became unfit due to an accident.  He thought that even if there was no work he should still have been kept on the Respondent’s payroll.

The Complainant accepted that he made no contact for a number of months and then just sent a text immediately before his proposed return, but he said he thought it was just a simple matter of collecting his helmet and going straight on site. It was put to the Complainant that he resigned or abandoned his employment and that he decided to source social welfare and to stay at home with the baby. The Complainant said that he did not make this choice but that he was left with no alternative.

The Complainant accepted that Mr. Connor did try to call him in addition to sending the 23rd of January Text. When it was put to him that he could have respondent by saying that his wife was working some shifts but that he would be available at a specified date which suited him, the Complainant said that he now agrees  that he should have done that but when he got the 20th of January Text which suggested that he find something else, that is what he did. He went to social welfare and to Citizens’ Advice. He also pointed out that the first word of his reply to the 23rd of January Text was “Yes” which he said was a simple answer to the question “Do you want work?”.

It was put to the Complainant that he had been offered work by the Respondent on two separate occasions, on the on the 13th of January 2025 when he was asked “are you ready to return to site tomorrow?” and again on the 23rd of January 2025 when he was asked “Do you want work?” and that when he was unavailable Mr. Connor interpreted his responses as the Complainant saying that he had resigned his employment. The Complainant totally disagreed with that interpretation, and he said that Mr. Connot should have contacted him further.

The Complainant stated on his WRC Complaint Form that the date of his dismissal was the 23rd of November 2024. He confirmed this date in his evidence and to be certain that he had not given this evidence by mistake, I asked him whether he was certain that this was the date of his dismissal. He said that the date the employment ended was when he found out that he did not work for the Respondent any more since the 23rd of November 2024. He received this information from a member of staff in the Social Welfare office when he was attending that office to secure social welfare after being advised, by way of the 20th of January Text, to “find something else”. He attended that office because he was upset not to be working as he had a mortgage to pay. In the social welfare office, the person he spoke to said to him “You do not work for this company any more since the 23rd of November 2024”. He said that when he went to citizen’s information he was told the same thing. On the basis that he was told the same thing by two people “working for the government” he took it that the information was correct and that he had been dismissed.

As regards the other workers who were on site the Respondent’s evidence was that the site where the Complainant had worked before his leave and to which efforts were being made to return him was the subject of a “Labour Only” contract where the client dictated how many workers from the Respondent were required and when. As such the client had the final say as to who was to be sent to the site. Although there were initial difficulties getting the Complainant back to the site due to a winding down of the work, the Respondent resolved these issues and could get the Complainant back to work when the two offers were made to him. As regards the issue of whether a worker who could not work on one site could be transferred to another this was not feasible as the other site where the Respondent was working was fully staffed. As regards replacement of a worker who became unfit, for example because of an accident or injury, such a worker could be replaced quickly but the situation was different with regard to sending an additional worker when the site was already fully staffed. The point was made that the client had the ultimate authority to approve the number of workers who were sent to the site by the Respondent.

The Claim Made by the Complainant - Statutory Provisions and the Burden of Proof

The claim made is for unfair dismissal. Section 1 of the Unfair Dismissals Act 1977 (as amended) defines dismissal (where relevant to the present case) as follows:

“dismissal”, in relation to an employee, means—

(a)    the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b)    the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer…”

In Devaney v DNT Distribution Company Ltd  UD 412/1993, the Employment Appeals Tribunal held that,

“... where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”

In “Redmond on Dismissal Law,” by Desmond Ryan, (3rd edition, Bloomsbury 2017), the general understanding of “dismissal” is described at paragraph 22.13 as follows:

“In general a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt that dismissal was intended or it may be reasonably be inferred as having been intended.”

Regarding a dispute in relation to the fact of dismissal, in the matter of Longford County Council v. Joseph McManus  UDD1753, decided in 2017, the Labour Court held as follows,

“As a dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined.”

The Respondent does not accept that any dismissal occurred and thus the burden of proving that there was a dismissal falls on the Complainant. Only when dismissal as a fact is established does the onus of proof shift to the Respondent pursuant to Section 6 subsections (1) and (6). If dismissal is not established the claim fails.

Findings

The first issue is to ascertain whether the Complainant was dismissed on the 23rd of November 2024. There is no evidence of any communication whatsoever to this effect from the Respondent – in fact the text messages indicate to the contrary in that all the leave which had been sought by the Complainant was approved. The Complainant also accepted that this was so.

The basis of the Complainant’s belief that he had been dismissed on the 23rd of November 2024 was the information imparted to him in the social welfare office which he said was confirmed by citizen’s information. When the issue was examined in more detail it became apparent that it is normal practice to remove an employee on Parent’s leave from payroll but where this is done it is also very likely that the social welfare (and probably the tax records) would be adjusted to reflect a cessation date on the date the leave was due to commence. These are all administrative mechanisms which do not indicate a positive act of dismissal on the part of the Respondent.

The Complainant also accepted at the hearing that the information published by the National Shared Services Office in relation to parent’s Leave specifically provides for the removal of an employee from the payroll where the leave is approved and put in place.

A letter was submitted in evidence by the Respondent from the Respondents accountants and payroll consultants. The letter stated as follows:

“As accountants and payroll consultants for our client CT Electrical (Ire) Ltd., it is our internal policy that states if any employee within a company has zero hours for more than 4 consecutive weeks, they will be taken off payroll. We were never instructed by our client to do so.   

This policy facilitates the smooth running of our clients payroll records and removes the need to process continuous periods of nil hours. It is quite easy to re engage any employee back to an employers payroll if needed. “

The Complainant said that he was not challenging the content of this statement.

In respect of both of these points the Complainant said that he now understood (“now” meaning at the hearing) that this was the way in which the leave had been processed but he insisted that he thought that he had been dismissed because he was so advised by a government department. 

My conclusion is that the Complainant received information which alarmed him, but it is likely that neither he nor those with whom he spoke had a full knowledge or understanding of the way in which parent’s leave is processed and handled administratively by the state. It is apparent that the Complainant either did not receive full and accurate information or that if he did, he did not fully understand it. However, any information deficit or misunderstanding cannot fairly be blamed on the Respondent. There is no evidence that the Respondent dismissed the Complainant on the 23rd of November 2024 which is the date of dismissal apparently relied on by the Complainant. Thus, insofar as this is the alleged date of dismissal my finding is that the Complainant was not dismissed, and the claim as apparently presented must fail.

On the basis that I have a duty to enquire into all aspects of the claim before me, I have, for completeness considered whether the Complainant was dismissed in January 2025 even though no such claim was clearly advanced by the Complainant. From a plain reading of the text exchanges in January 2025 there is again no evidence that any communication meets the definition of dismissal as discussed above in the sense that no reasonable employee could have construed the communication as a dismissal. I thus find that the Complainant was not dismissed by the Respondent on this date.

My conclusion is that the Complainant was not dismissed within the meaning of that term in the Unfair Dismissals Act 1977 (as amended) and accordingly it follows that he was not unfairly dismissed.

The foregoing finding is all that is required to deal with the case as presented.

The Complainant’s evidence and submissions indicate that he may have considered himself dismissed and/or that other legislation had been breached but as the Respondent correctly contends, no claim for constructive dismissal under the Unfair Dismissals Acts or any other legislation was made by the Complainant and for this reason I make no findings on this issue. However for completeness, I would offer the observation (as distinct from a finding of any sort) that even if the Complainant had presented the claim as a constructive dismissal or sought redress under any other legislation he would have encountered difficulties arising from the failure to communicate further with the Respondent following the final text exchange. It is evident that each party would have expected that the other would make contact and in an ideal world that should have been happened and if it had the entire dispute could have been avoided altogether. As it transpired the employment appears to have ceased in circumstances where there was neither a dismissal nor a resignation and it is difficult to see how the Complainant could realistically have grounded any claim for redress in the circumstances, having failed to seek clarification from the Respondent regarding where he stood and indicating if and when he was available to work.

The Complainant was not unfairly dismissed

CA-00075948-001 - The Complainant was not unfairly dismissed

Sandy Lane Hotel Limited –v- Times Newspapers [2011] 3 I.R. 334 - McMullen v. Clancy [2002] IESC 61 - Jeevanhan Al Tambraga v Orna Morrisey and Killarney Avenue Hotel [2013] 24 ELR 275; - Kennedy v. Daifuku America Ireland Daifuku ADJ-00045001 - Andrei Cracut V Muldoon International Transport ADJ-00056428 - O'Higgins v University College Dublin and The Labour Court [2013] IEHC 431 – Constitution Articles 34.1, 34.3.1, 40.3.1.- County Louth VEC –V- Equality Tribunal [2009] IEHC 370 - Halal Meat Packers –v- EAT [1990] ILMR 293 - Wach v Travelodge EDA1511 - Section 39 (4) of the Organisation of Working Time Act 1997 – Inadvertance - Section 41 (5) (a) (i) of the Workplace Relations Act 2015 - Kennedy v. Daifuku America Ireland Daifuku ADJ-00045001 - Andrei Cracut V Muldoon International Transport ADJ-00056428 - Rahman –v- Munster Joinery UD2377/2011 -  Auto Depot Limited v. Mateiu DWT1922  - Simona Kalinakite v. King Thomond Hotel (technical amendment) ADJ-00035938 - An Advocate v. A Community Training Centre ADJ-00006893 - Section 1 of the Unfair Dismissals Act 1977 - Devaney v DNT Distribution Company Ltd  UD 412/1993 - Longford County Council v. Joseph McManus UDD1753