I4/2012, I55/2012

EMPLOYMENT APPEALS TRIBUNAL

PROTECTION OF EMPLOYEES (EMPLOYERS' INSOLVENCY) ACTS, 1984 TO 2004

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr P. O’Leary BL

Members:     Mr A. O’Mara

                     Mr C. Ryan

heard these appeals at Dublin on 4 November 2013

Representation:

Complainants:

                    Ms Breda O’Malley, Hayes Solicitors, Lavery House,

         Earlsfort Terrace, Dublin 2

Respondent:

         Rep

The determination of the Tribunal was as follows:

Determination:

The two named complainant companies went into receivership on 7 June and 15 July 2011 respectively. In order to keep the businesses trading so as to maximise the opportunity to sell them as going concerns the receiver retained 51 employees of the complainant companies and made payments to those 51 employees, which payments were outstanding at the time of the receiverships.

On behalf of the complainant companies the receiver sought to recoup those outstanding payments from the Minister and was refused.

The long title of the legislation involved in the within complaints is

An Act to confer, on the insolvency of employers, certain rights on employees, to amend certain enactments relating to the rights of employees and to provide for other matters (including offences) connected with the matters aforesaid

The Acts provide at section 1 that

“employee” means a person who has entered into or works under (or, in the case of a contract which has been terminated, worked under) a contract with an employer, whether the contract is for manual labour, clerical work or otherwise, is express or implied, oral or in writing, and whether it is a contract of service or apprenticeship or otherwise, and “employer” and any reference to employment shall be construed accordingly;

And at Section 3 that

Subject to section 11 of this Act, this Act applies to employees employed in employment which is insurable for all benefits under the Social Welfare Acts…………

And at Section 6(1) that

If, on an application made to him in the prescribed form by or on behalf of an individual, the Minister is satisfied that—

(a) the person by or on whose behalf the application is made (which person is in this section subsequently referred to as “the applicant”) is a person to whom this Act applies, and that he was employed by an employer who has become insolvent, and

(b) the date on which the employer became insolvent is a day not earlier than the 22nd day of October, 1983, and

(c) on the relevant date the applicant was entitled to be paid the whole or part of any debt to which this section applies,

The Tribunal is satisfied that the complainant companies are not entitled to bring such complaints and in circumstances where the employees have been paid the complainant companies have no locus standii to pursue these complaints under the Protection of Employees (Employers' Insolvency) Acts, 1984 to 2004

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)