I5/2015

EMPLOYMENT APPEALS TRIBUNAL

COMPLAINT(S) OF:                                                                       CASE NO.

Martina McGrath

                                                                                                         I5/2015

against the decision of The Minister for Social Protection in the case of:

Martina McGrath

-V-

Patterson Bannon Architects Limited

under

PROTECTION OF EMPLOYEES (EMPLOYERS' INSOLVENCY) ACTS 1984 TO 2012

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms P. McGrath B.L.

Members:     Mr M. Noone

Ms. S. Kelly

heard this complaint at Carlow on 16th March 2016

Representation:

Complainant:   In person

Respondent:    Ms. T. Campbell, Insolvency Payments Section, Department of Social    Protection, Block C, Floor 2, Earlsfort Centre, Lower Hatch Street, Dublin 2

Background:

This case came before the Tribunal by way of the complainant appealing the decision of the Minister for Social Protection under the Protection of Employees (Employers' Insolvency) Acts 1984 to 2012.

The declaration of the Tribunal was as follows:-

The complainant was employed by Patterson Bannon Architects Limited. The complainant brought a claim under the Payment of Wages Act 1991 which was heard by a Rights Commissioner on the 2^nd December 2011. The complainant succeeded in her claim and the Rights Commissioner Decision was dated 20^th February 2012.

The complainant in furtherance of her claims sought satisfaction in the District Court in July 2013 and subsequently secured an Execution Order. Part of the sum owing to her was paid to her by the employer at that time. The complainant subsequently secured a second Execution Order for the outstanding sum on the 20^th August 2014. A liquidator was appointed to the company on the 27^th August 2014. An application was made to the liquidator for satisfaction and the complainant was notified by the liquidator that there were no funds available to discharge the sums due and owing to her. The liquidator referred the complainant to the Insolvency Section of the Department of Social Protection.

The complainant was informed that her claim could not succeed under the Insolvency Payments Scheme by reason of the fact that the scheme only operates to cover legal remunerative entitlements in the 18 month period prior to the date of insolvency or termination of the employment, whichever is the later as set out under s.6(9)(b) of the Acts

The Insolvency Section noted that the awards that the complainant sought to have satisfied related to a period of time well in excess of the date that the respondent employer went into liquidation.

A very strong and competent case was put that the Tribunal should interpret the legislation to allow that the Insolvency Section can, and should have, interpreted the Act to include an award which was only consolidated and realised as a liquidated sum by the District Court in August 2014 which if accepted by the Tribunal brought the matter within the 18-month period prior to insolvency.

The Tribunal has considerable sympathy for the complainant’s predicament and would be anxious, if at all possible, to facilitate some method by which she might have the remaining award satisfied. However, any careful analysis of the wording of the legislation would unfortunately render what has been urged of the Tribunal as an incorrect application of the Law. It would be unworkable in cases of insolvency if no limitation was put on the period of time within which remuneration type claims can be brought against an insolvent employer. It is an unfortunate fact that the Orders of the District Court serve only to make the complainant a creditor against the now insolvent entity and the complainant’s status as one-time employee is not relevant in this regard and does not give her any preferential entitlement.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)