Case Number: ADJ-00029863. Workplace Relations Commission

• Judgment Date: 08 July 2022
• Year: 2022
• Date: 08 July 2022
• Docket Number: ADJ-00029863
• Hearing Date: 06 December 2021
• Court: Workplace Relations Commission
• Respondent: Pallomar Limited

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 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 commenced employment with the Respondent on 23rd November 1989. At all relevant times the Complainant role was described as that of “Restaurant Manager”. The Complainant was a full time, permanent employee, in receipt of a weekly salary of €710. The Complainant’s employment was terminated by reason of redundancy on 10th August 2020. On 11th September 2020, the Complainant lodged the present complaint with the Commission. On the “Complainant Specific Details” section of the complaint form, the Complainant alleged that, “I got paid 36,756 from the DEASP with no Pay in Lieu of Notice which should have been 4,800 for 30 years”. On the “Redress Option” section of the form, the Complainant selected adjudication under Section 39 of the Redundancy Payments Act, 1967. By submission received on 11th November 2020, the Respondent denied the Complainant’s allegation. In the course of this submission, under the heading “Minimum Notice and Terms of Employment Act 1973” the Respondent set out a detailed and technical defence to the Complainant’s position regarding the alleged non-payment in lieu of notice. By responding submission dated 16th November 2020, the Complainant submits that, “I was not given the option to work my notice so I should receive 8 weeks as per Minimum Notice and Terms of Employment Acts 1973-2005.” At the hearing of the matter, these issues regarding the alleged non-payment of notice were canvassed thoroughly by the parties. In these circumstances, it is apparent that the complaint referred related to the non-payment of notice, the Respondent’s submission defended this complaint, the Complainant clarified the allegation in further correspondence and the matter was robustly defended at hearing. Having regard to the same, it is apparent that only indication that the present complaint relates to the Redundancy Payments Acts, is the selection of the “redress option” on the online complaint form. In the matter of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan [2009] IEHC 370, McGovernJ. held that, “I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.” McGovern, J. went on the state that, "the respondent...must be given a reasonable opportunity to deal with these complaints and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice." In the matter of Clare County Council v Director of Equality Investigations [2011] IEHC 303 Hedigan J. held that, “It is clear from the foregoing that because the EEI form is only designed to set out the generality of a complaint, complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken by surprise, or alternatively given adequate time to answer, there can be no injustice therein.” Finally, in the matter of Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210, Charleton J. held that, “It follows from the foregoing that a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice. For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it. If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.” Having regard to the foregoing, I find that the matter referred by the Complainant was one under the Minimum Notice and Terms of Employment Act. The Respondent was on notice of the same, fully defended the allegation and consequently cannot be said to have suffered any prejudice. In these circumstances, and having regard to the authorities listed above, I find that it would be unfair to bind the entirety of the Complainant’s referral to a box she selected on a non-statutory form. Having regard to the foregoing I find that the matter should proceed under the Minimum Notice and Terms of Employment Act 1973.

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