ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004346

Complaint for Resolution:

Date of Adjudication Hearing: 18/10/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

                                           A Sales Assistant V A Department Store (In Liquidation)

Complainant’s Submission and Presentation:

The complainant worked as a shop assistant for the respondent Department store from 2004 until the sudden closure of the business in June 2015.The complainant submitted that she was entitled to payment in lieu of notice of consultation as provided for in law and in accordance with the recommendations made for her co-employees . Her claim was received by the Workplace Relations Commission on 3 August 2016.

The complainant submitted that she had received payments in respect of unpaid wages, holiday pay and minimum notice in line with all other workers at the store. However, she was aggrieved that she had not been informed that members of Trade Unions had lodged claims for a notice period as provided for in a collective redundancy situation; she submitted that it was unfair that she had been left out of the proceedings. Her claim was that she was not informed and sought payment for a four week period in compensation in lieu of notice.

The complainant explained that she had not found work since the closure.

Respondent’s Submission and Presentation:

The Respondent is in Liquidation. The company was represented by a Solicitor and an Accountant on behalf of the company .The respondent disputed the claim on a number of grounds .The Liquidators on behalf of the respondent confirmed the details of the sudden closure of the business in June 2015 and the subsequent reliance on the Social Insurance Fund / Insolvency Fund to compensate the workers in accordance with Section 6 of the Protection of Employees (Employers Insolvency) Act 1984

The respondent submitted that the complainant had received all of her entitlements namely Redundancy Payment, Unpaid wages, Holiday pay and Minimum notice from the Dept. of Social Protection Insolvency Fund via electronic fund transfer in August 2015.

They submitted that the instant claim arose following a latter day parallel action where the Unions campaigned to have the period of time allowed for consultation prior to a redundancy situation recognised in compensation terms. The respondent told the hearing that a hearing had taken place at the WRC in November, 2015 which had resulted in a positive recommendation to pay a sum in lieu of compensation to the 61 Unionised employees .The respondent submitted that payment had not issued in respect of the claims taken on behalf of the Unionised workforce . They submitted a copy of the recommendation for information purposes but sought that the Adjudicator treats the names inscripted as redacted. The respondent qualified the submission by stating that the date of submission of the complaint on behalf the “class action” was July 3, 2015.

They submitted that the instant complaint was lodged against the incorrect respondent and was in fact out of time. The respondent acknowledged that the company had paid its debt to the complainant but was prohibited from engaging in the current claim due to the strict parameters of Section 9(1)(b)and (c) of the Protection of Employees ( Employers Insolvency ) Act , 1984, as amended .

They contended that the claim arising in the instant case was improperly directed towards the company and should have been directed towards the Minister named in the Act as the Minister for Enterprise, Trade and Employment. In addition, the Liquidators on behalf of the respondent relied on the time limitation period provided for in Section 9(1) (1B)

An Adjudication Officer shall not entertain a complaint referred to her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the decision by the Minister in relation to the application to which the complaint relates.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 9(3) of the Protection of Employees (Employers’ Insolvency) Act, 1984 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 9(4) of that Act.

The complainant in this case is a lay litigant .The complainant made it clear during the course of her submission to the hearing that she sought an award of parity with her former colleagues in relation to the lack of an obligatory consultation period as provided for in the case of Collective redundancies .She did not have any concrete details of the case, but expressed a strong sense of injustice that she had been excluded by the company.

It became apparent in the hearing, that the complainant did not intend to furnish a complaint against the Minister for Jobs, Enterprise and Innovation under the present Act, she understood that she had taken the correct course of action by naming her former employers as “the mark” in pursuance of her claim .The respondent was on notice of the claim prior to the hearing date but did not make any approach to the complainant. I asked the respondent at the hearing whether there was provision to add the complainant to the list of former employees awaiting payment under the Rights Commissioner/Adjudicator Recommendation. This was deemed impossible by the respondent.

I considered both parties positions as advanced at the hearing and I sought further details from the respondent on when the Ministers decision had issued in the “ class action “ case and if perhaps I could have a copy of the third party recommendation? . I am grateful for the submissions that followed.

From the submissions received, I identified that the action taken by the Unions on July 3^rd 2015 was advanced under the European Community Protection of Employment Regulations 2000 and not the Protection of Employees (Employers Insolvency) Act 1984 as amended. It was agreed as a test case taken by 61 out of 130 former staff of the respondent company .The Recommendation issued on 28 January 2016 and up to the date of hearing, October 18, 2016, the respondent was clear that payment had not issued to the beneficiaries.

I am struck here by the inconsistent approach adopted by the respondent in this instance. The respondent submitted a copy of the completion of the complainant’s statutory claim for arrears of wages, deductions, holiday pay and Minimum Notice dated 21 August 2015. There was no distinction made between the complainant and a unionised worker on this document. I must therefore presume that they were treated in the same fashion on that occasion. I have noted the inconsistency.

The legislative basis for the Insolvency Payment Scheme in Ireland is the Protection of Employees (Employers Insolvency) Act 1984-2006. The scheme provides for payment of certain outstanding entitlements relating to the pay of an employee whose employment was terminated by means of Insolvency. The respondent liquidation is encompassed by this definition .Payment is made from the Social Insurance fund providing that an appropriate history of contributions have been made. Section 6 of the Act sets out a range of scenarios where an employee may seek access to a range of entitlements such as Unfair Dismissal, Redundancy and other amounts which an employer is required to pay following a decision of a third party forum . It falls on the Employer Representative mostly to make application on line on the statutory IP2 form while furnishing the Notice of Appointment as Liquidators and the Statement of Affairs.

The Adjudicator Recommendation of 28 January 2016 was an illuminating decision which drew on the precedent contained in EU case law in C235/10-C-239/10 David Claes v Landsbanki Luxembourg SA (In liquidation). The Adjudicator identified that the complaints on an absence of Consultation prior to termination of employment by the respondent constituted a breach of the regulations. I accept that the complainant is not mentioned in the Third Party Recommendation of 28 January 2016, I accept that her first application for payment was on August 3^rd 2016 and her name has not been submitted by the respondent to the Minister. Therefore a decision has not yet been made by the Minister in her case.

Section 9 (1) of the Act imposes the Minister as the correct respondent under the Act. It also stipulates that a person must have applied for a payment under section 6 to the Minister.

Statutory Instrument 504/2011 Protection of Employees (Employers Insolvency) Procedures Regulations 2011 sets out the procedures to be adopted in pursuance of a claim under the Act.

The complainant accepted that her application to the Workplace Relations Commission on August 3, 2016 was her first application for compensation arising from the lack of consultation under Section 9 of the the Protection of Employees Act, 1977, which provides an obligation on employers to consult employees' representatives

Part II Consultation and Notification

(1) Where an employer proposes to create collective redundancies he shall, with a view to reaching an agreement, initiate consultations with employees' representatives

(2) Consultations under this section shall include the following matters—

(a) the possibility of avoiding the proposed redundancies, reducing the number of employees affected by them or mitigating their consequences by recourse to accompanying social measures aimed, inter alia, at aid for redeploying or retraining employees made redundant,

(b) The basis on which it will be decided which particular employees will be made redundant.

(3) Consultations under this section shall be initiated at the earliest opportunity and in any event at least 30 days before the first notice of dismissal is given.

Decision:

I have concluded my inquiry in this case and while I note the inconsistent approach adopted by the respondent in the management of Unionised and non Unionised employees in relation to a lack of a Consultation period, I note that, a somewhat analogous issue has recently gained momentum in the UK in respect of arrears in equal pay cases taken by Council workers in Inverclyde Council in Scotland.

I must, however, find that the complainant has advanced her complaint under the incorrect piece of legislation and I am unable to find in her favour under the present Act as I do not have before me a third party decision in which she is named as a beneficiary of an amount an employer is required to pay following termination of employment due to Insolvency.

Given the responsibilities enshrined in the role of Liquidator, I would however add that it is open to the Liquidator to engage further with the complainant on her obvious association with the “class action “case taken by the complainant’s former colleagues under the European Community Protection of Employment Regulations 2000.

Patsy Doyle, Adjudicator.

Dated:   16/02/2017