Introduction
Any employee is entitled to rely on the provisions of the Terms of Employment,(Information) Acts 1994 to 2014, further strengthened by the Employment (Miscellaneous Provisions) Act 2018 and to be furnished with basic information to include the name and address of their employer, method of calculating their pay, the number of hours that the employee is expected to work per normal working day/week.
When a dispute arises, despite not being provided with the relevant documentation, it is still critical that an employee bringing a claim before the Workplace Relations Commission (WRC), identifies their actual employer.
Background
The importance of correctly identifying one’s official employer when bringing a WRC complaint was again reaffirmed in the unfortunate case of Stephen Ng v Moanne Chow T/A Orchid Restaurant.
This was an appeal to the Labour Court by Mr. Ng (the complainant), under the Organisation of Working Time Act, 1997, against the decision by an Adjudication Officer, ‘AO’, that the WRC, did not have jurisdiction to hear his complaint against Ms. Chow (the Respondent), as she was not the correct respondent and no employment relationship existed between Mr. Ng and her (see: ADJ-00021634).
Mr. Ng commenced work as a senior waiter in January 2016. He was interviewed and employed by Ms. Chow, who was, it was argued, his employer at all times.
Mr. Ng never received a contract of employment or any formal/written terms and conditions. He never received any payment details. He was paid €360 per week plus tips and was required to work in excess of 48 hours per week, with no distinction between public holidays and normal workdays. He was rostered to work each Sunday, Tuesday, Wednesday, Thursday and Friday morning.
Mr. Ng was summarily dismissed on 8 February 2019. He did not receive a P45 or P60.
Arguments
Mr. Ng lodged complaints with the WRC under several Acts against Ms. Chow, who responded on 29 May 2019, from which response it is clear that she accepted she was Mr. Ng’s employer. On 2 September 2019, just two days before the scheduled date for the WRC hearing on 4 September 2019, a ‘new’ respondent, identifying herself as Mui Lai Chow, stated that she was an employee of the restaurant. At the WRC hearing, Mui Lai Chow contended that she was an employee and that the correct employer was a company called MCF Catering Ltd. She presented various items of documentation in support of this assertion, including information to show the incorporation of MCF catering Ltd on 14 May 2018, more than two years and four months after commencement of Mr. Ng’s employment.
Labour Court Determination
The Labour Court was most disturbed to find itself in the very unsatisfactory position that Mr. Ng is left in something of a limbo, allegedly by virtue of the claimed failure of his former employer to meet the most basic information requirements of employment law concerning his employment and that this alleged very failure, itself, required the Labour Court to have to engage in what Mr. Ng’s representative described with some accuracy as ‘private detective’ work to ascertain who exactly was the employer?
The very absence of written confirmation of an employment relationship being produced to the Labour Court was a problem in getting to the heart of determining who the employer might be. The Labour Court noted the irony that the absence of documentation required by law creates a difficulty for the Labour Court in examining complaints regarding alleged breaches of employment law.
On balance, and not without some reservation, the Labour Court determined that it had to accept that the balance of documentary evidence favoured Ms. Chow’s argument that she was not the employer.
Conclusion
Before deciding on the substantive issues of a complaint, the WRC must first decide whether or not the complainant has named the correct respondent for the purpose of the submitted complaints. That being the case, the employee must name the correct respondent before initiating proceedings.
Further Information
For further information, please contact the author of this article, Barry Crushell.
