ADJ-00031899 - Workplace Relations Commission Beverly McLoughlin v Lisa O’Connor T/A Hair Flair

• Judgment Date: 17 January 2023
• Date: 17 January 2023
• Hearing Date: 28 February 2022
• Docket Number: ADJ-00031899
• Court: Workplace Relations Commission
• Respondent: Lisa O’Connor T/A Hair Flair

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. On this date, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings. The changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021 were notified to the parties who proceeded in the knowledge that hearings are to be conducted in public, decisions issuing from the WRC will disclose the parties’ identities and sworn evidence may be required.

I gave the parties an opportunity to be heard and to present evidence relevant to the complaints.

Oral evidence was presented by both the complainant and the respondent.

The parties were offered the opportunity to cross examine on the evidence submitted.

In attendance for the respondent: J.D Scanlon & Company Solicitors representing the respondent. Ms Lisa O’Connor.

J.J. Fitzgerald & Co Solicitors, attended on behalf of Ms. Evelyn Lambe, previous co-owner.

In attendance for the complainant: Ms Michelle Bolger, ESA, and the complainant, Ms Beverly McLoughlin.

The complainant gave evidence under affirmation. The respondent, Ms. O’Connor, gave evidence under affirmation.

Background:

The complainant has presented seven complaints against the respondent, named as Hair Flair on 26 August 2020: Complaint under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003), Complaint under section 27 of the Organisation of Working Time Act, 1997, Complaint under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 Complaint under Section 8 of the Unfair Dismissals Act, 1977 Two complaints under Section 39 of the Redundancy Payments Act, 1967. Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1997. The complainant worked as a hair stylist with Ms. Evelyn Lambe and Ms. Lily Leavy, t/a Hair Flair from 2015 until she was dismissed on 19 June 2020. The complainant worked on average 20.2 hours a week over 3 days and earned a basic rate of €10.10 an hour. The complaint was lodged with the WRC on 26/8/2020. Written submissions were received by the representatives for the complainant and the respondent. After the hearing, the complainant submitted details of loss incurred which were exchanged with the respondent.

Preliminary point:

Respondent’s submission.

Incorrect Respondent. The respondent states that there is no legal entity named Hair Flair. The respondent will not consent to the request for a name change. The complainant had legal advice. A trading name is not a legal entity. The CRO should have been searched. It is submitted that Ms Lisa O’Connor is a stranger at law to all of the referenced registered business names cited by the complainant’s representative. The complainant has incorrectly provided the respondent as being Hair Flair in circumstances where she is seeking to argue that Ms Lisa O’Connor is in fact responsible for alleged losses and breaches of Statute. It is submitted that the complainant is not entitled to recover as against Ms Lisa O’Connor as the complaint is not made as against Ms Lisa O’Connor. The respondent relies on the Labour Court decision of Auto Depot Limited -v- Vasile Mateiu, UDD1954 which held that the impleading of an incorrect respondent was a technical error. In the instant complaint, the incorrect constitution of the complaint cannot be deemed to be “no more than a technical error” and therefore the complaint should fail.

Preliminary point:

Complainant’s submission.

Incorrect Respondent. The complainant’s representative, Ms Bolger (ESA), asked that the name be changed. The complainant had asked the respondent to confirm the correct name of the respondent without success. The respondent engaged with them as Hair Flair. The complainant’s request for employee records and pay slips was ignored. She received a p60 from the respondent solicitor which said Hair flair.

Preliminary Point.

Findings:

Incorrectly named respondent. I must decide if I can substitute the actual employer for the entity impleaded in this complaint. The substitution of the actual employer for the entity impleaded in a originating complaint form has been addressed in a number of authorities. The respondent argues that as the complaint has been brought against an entity that does not exist, the complaint must be dismissed. McGovern J in the High Court case of County Louth VEC -v- Equality Tribunal [2009] IEHC 370 addressed the question of when proceedings before a statutory Tribunal can be amended. He 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.” In the instant complaint the business name was used rather than that of a natural person or legal entity who trades under that business name. Relevant to the complainant’s mistaken use of the respondent’s business name is that the Rules of the Superior Courts allow for proceedings to be initiated against a firm in its business name. Order 14, Rule 11 of RSC, provides as follows: - “Any person carrying on business within the jurisdiction in a name or style other than his own name, may be sued in such name or style as if it were a firm name; and, so far as the nature of the case will permit, all rules relating to proceedings against firms shall apply.” The Labour Court in Ballarat Clothing Ltd v Aziz, EDA151 agreed to amend the respondent’s title in the light of authorities and adopted the reasoning of Hogan J in O’Higgins v University College Dublin & The Labour Court [2013] IEHC 431 wherein Mr Justice Hogan held “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)” …. “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.” The respondent asks me to accept that the incorrect title in the instant case is more than a technical error and the determination of the Labour court in Auto Direct Ltd v Vasile Mateui DWT1922 is of no avail to this complainant in the instant case whose error, the respondent contends, was more than technical. That determination concluded that the erroneous naming of ‘Auto Depot Tyres Ltd’ on the WRC complaint form to be no more than a technical error. But of relevance to the instant complaint are the Court’s conclusions in that determination: “The Court is further...