RP940/2013, MN699/2013

EMPLOYMENT APPEALS TRIBUNAL

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr D. MacCarthy SC

Members:     Mr J. Goulding

                     Mr T. Brady

heard these appeals at Dublin on 18 February 2014

Representation:

Appellant:

         Mr Bernadette Thornton, SIPTU, Membership Information & Support Centre,

         Liberty Hall, Dublin 1

Respondent:

       No appearance by or representation on behalf of the respondent

The determination of the Tribunal was as follows:

Determination:

The respondent company went into liquidation on 1 December 2010. At the completion of that process, the company was dissolved on 27 December 2013 and accordingly, could not be in attendance at the hearing.

The appellant worked for the respondent from 1987. He had worked for a previous incarnation of that business for some twenty years prior to that but his continuity of service was broken at that time. In April 2008 the appellant became ill and last worked for the respondent on 29 April 2008. During the period of illness the respondent began to suffer trading difficulties and the appellant’s position was declared redundant on 17 July 2009 on which date his employment was terminated.

The respondent calculated the redundancy lump sum payment to which the appellant was entitled as being €24,328-51 of which the employer’s rebate of 60%, as it then was, amounted to €14,597-11. The appellant received the said amount of €14,597-11on 14 April 2010.

The respondent had agreed to pay the outstanding balance at the rate of €108-36 per week which would discharge the outstanding liability over the next 90 weeks. Unfortunately the respondent ceased trading and no payments have been made since 27 October 2010 after 65 weeks. The amount of €7,043-40 had been paid in this way leaving an apparent shortfall of €2,709-00.

Several points arise for consideration:-

1. At the date of hearing the respondent company was dissolved and there was an issue as to whether a decision could be made against an entity that no longer existed. While the former employer would carry the primary liability of a Tribunal award there is a secondary liability on the Social Insurance Fundunder the Redundancy Payments Acts, and the Tribunal is therefore empowered to make a decision in this case. To rule otherwise would require a redundant employee to apply to the High Court for an order restoring the dissolved company to the register for the purposes of the proceedings after liquidation was complete and, in the Tribunal’s view such a process would be totally uneconomic, apart from all the complications it would involve. The process would also be unreal, as the effective liability in this case would be the secondary liability on the fund.

2. The claim before the Tribunal was initiated after the expiry of the primary time limit of 52 weeks, but the Tribunal was satisfied that the appellant’s failure to lodge a claim within that period was due to reasonable cause and extends the time to the secondary time limit of 104 weeks.

3. The method of payment agreed by the respondent company certainly does not accord with the terms of the Redundancy Payments Acts and the Tribunal is not endorsing it. However the Tribunal is of the view that the company acted in good faith to try to discharge the appellant’s statutory entitlement. The Tribunal makes this award under the statute and allows credit for the amounts already paid. There is a small difference in the calculation of the Tribunal and that of the company.

The appellant submitted his appeal to the Tribunal on 1 July 2011 and the Tribunal was satisfied that the appellant had shown reasonable cause in order to extend the period in which to bring his appeal to 104 weeks after his dismissal.

The Tribunal is satisfied that the appellant was dismissed by reason of redundancy and is entitled to a lump sum payment of €24,276-56 under the Redundancy Payments Acts, 1967 to 2007 based on the following criteria.

The Tribunal makes an award under the Redundancy Payments Acts, 1967 to 2007 in the outstanding amount of €2,636-05.

This award is made subject to the appellant having been in insurable employment under the Social Welfare Consolidation Act, 2005 during the relevant period.

The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 was withdrawn during the hearing.

Sealed with the Seal of the

Employment Appeals Tribunal

This     ________________________

(Sgd.)  ________________________

(CHAIRMAN)