Using the WRC complaint form – Issues where the claim issues under the wrong Act*

By April 30, 2021Employment Law

Using the WRC complaint form – Issues where the claim issues under the wrong Act*

This issue arose in ADJ-00025369 as a preliminary matter. The employee had put a claim in under the Organisation of Working Time Act. There was two elements of that claim which were clearly under that particular Act but a third one in respect of payment of wages for four weeks should have been under the Payment of Wages Act. When the case came on for hearing the employee sought to amend the proceedings.

The Adjudication Officer quoted the case of County Louth VEC -v- The Equality Tribunal 2016 IESC40 where Mr Justice McKechnie in the Supreme Court stated:

“As is evident from the aforegoing…the initiating step for engaging with the provisions of the 1998 Act is that the applicant…seeks redress by referring the case to the Director. …In the absence of any statutory rule to facilitate such a process, the Tribunal itself, in the form of guidelines, has drafted and published what is an appropriate form to be used in this regard… I agree with the view that there is nothing sacrosanct about the use of an EEI Form to activate the Jurisdiction of the Tribunal. I see no reason why any method of written communication could not, in principle, serve the same purposes. In fact, the Tribunal itself has so held in a Female Employee – v- Building Product Company DEC-E 2007-036. Indeed, it is arguable that even a verbalised complaint would be sufficient to this end”

The Adjudication Officer noted that while that case referred to the Employment Equality Acts the Adjudication Officer was satisfied in relation to the referral of a complaint to a judicial body using a non-statutory form is equally applicable in this case. The Adjudication Officer stated that the online complaint form used by the WRC is not a statutory form and it was clear from the information included in the referral form that the employee was seeking redress in relation to a non-payment of wages.

The Adjudication Officer allowed the case to proceed. This is one when the employee had actually put matters in the complaint form. There is a difficulty with the WRC complaint form in that for some people it is difficult to follow. Unfortunately, various elements of it are not entirely clear. There will be cases where an employee will be allowed amend but there will equally be cases where they will not.

It is very important for persons lodging claims to as far as practicable make sure that the claim issues under the correct Act.  An interesting issue which may at some stage arise is whether a phone call to the WRC following the reasoning of the Supreme Court would suffice. Clearly if a case is listed within six months of a complaint issuing a person at a hearing could put in new claims.

*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 proportion or percentage of any award or settlement.

Richard Grogan

Author Richard Grogan

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