Issuing Proceedings in the Wrong Name in the WRC
This issue arose in the case of a Hair Stylist and a Hair Dressing Salon in ADJ/00015823.
The employee in this case issued the proceedings against a trading name rather than against the owner of the business who traded under that name.
The Adjudication Officer pointed out that it was necessary to look to see had the Adjudication Officer the power to amend the proceedings and substitute the correct name. The Adjudication Officer pointed to the case by the Labour Court in the case of Auto Depot Limited and Matelu UDD1954. In this case the employee had issued the proceedings against Auto Depot Tyres Limited rather than Auto Depot Limited. The Labour Court allowed the amendment as the Court stated;
“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 respondent’s name can simply be amended on the paperwork to reflect its correct legal title, that of Auto Depot Limited”.
The Adjudication Officer pointed out that the Labour Court in that case provided an extensive analysis of the Jurisprudence and the authorities. In that case the Labour Court said;
“Having regard to the forgoing and relying in particular on the 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 complainants employer. The party was fully aware of the complainant’s complaint to the WRC from July 2017. He knew precisely from whom the complaints were and to what the complaints referred. The respondent party has had a fully 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 its preliminary point”.
In arriving at this conclusion, the Court is also conscious of the High Court judgement in O Higgins –v- University Dublin & Another 2013 21MCA 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 disproportionately response and deprive the appellant of the substance of her constitutional right of access to the Courts”.
In that case the Labour Court went on to state;
“The Court is further satisfied that this approach 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. On that point the decision of the Supreme Court in Halal Meat Packers (Ballyhaunis) Limited –v- Employment Appeals Tribunal 1990 ILRM293 is relevant. Here Walsh J stated…Obiter, as follows;
“This present case indicates a degree of formality, and even rigidity, which is somewhat surprising. It is a rather iconic turn in history that this Tribunal which was intended to save people from the ordinary Courts would themselves fall into rigidity compared to that of the common law before it was modified by Equity”.
The Adjudication Officer held that the Adjudication Officer in this case was entitled to change the name.
There is always a difficulty with these cases. The difficulty is where proceedings issue in the wrong name if the respondent employer does not appear in the WRC and there is no application to change the name then in those circumstances an award being a decision will issue against an entity which does not exist and there will be no way that that decision can be implemented.
There is provision to change an administrative error. It does however appear that if that error is not brought to the attention of the WRC before a decision issues then in those circumstances it may be difficult, if not impossible, to have the proceedings changed as regards the name.
Even if that is allowed there is always then the issue as to whether the proceedings have to be reheard in the WRC because the employer may not have been on notice. This is particularly so in the case of companies.
There is always then also the issue which has to be looked at which is is this a genuine mistake. It is important when acting for employees to check their contract of employment. That should have a name on it. That should be the legal name. That is not always the position. The other document to check is of course their payslip. That again should have the legal name on it. The third issue is to ask employees to check the Revenue online documentation. Let us take a situation where the Trade Name only is on the contract. For example, Joe Blogs Hardware. If the name of the company is Joe Blogs Hardware Limited and the proceedings issue and all the documentation being contracts and payslips and also the Revenue records show the name Joe Blogs Hardware then the employee is in a very strong position to ask for a change of name. If however the contract of employment, the payslips and the Revenue online forms have the correct legal entity it is more difficult. In this example clearly it is simply the words Limited to be added in. The problems can arise more often where there is a limited company which has its registered office at one address but which has a number of branches and where the proceedings are issued against that entity using a trade name at the location of one of its branches. There will always be issues where proceedings issue against the wrong entity. It is however important as far as possible particularly when acting on behalf of an employee to ensure that the correct name is used. For professional advisors it is beneficial to ensure that documentation going to the employee advises of the requirement that you need to know the legal name and that it is a matter for the employee to advise you of same. It is also useful to ask the employee to check Revenue online if the contract or payslips do not give the full legal name.
*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.
**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.