Complainant

Respondent

Anonymised Parties

A General Manager

Mr B T/A AB Chartered Accountants

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012832-001

10/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00011456-001

22/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00011456-002

22/05/2017

The Complainant claims that he was employed by the Respondent from 11th February 2011 until 15th July 2016 when the company went into liquidation. He claims that he has not received his redundancy payment along with his holiday pay and statutory minimum notice.

The Respondent failed to appear before the Adjudication Officer. Mr. A, who is the Official Liquidator appointed by the High Court to the Complainant’s former employer attended the hearing. Mr. A is also trading as AB Chartered Accountants. He stated that the Complainant should have named his former employer i.e. the Company in liquidation as the Respondent in his complaint. Mr. A contends that the Complainant was well aware, having had the benefit of legal advice, as to the identity of the correct Respondent in this matter. Mr. A also submits that the Complainant was well aware of the High Court appointment as he objected to this appointment and subsequently brought an appeal to the Court of Appeal. Moreover, it was also clear from all correspondence that issued from AB Chartered Accountants as to the identity of the Official Liquidator. Mr. A stated that the Complainant further confused matters by naming another individual from AB Chartered Accountants, unrelated to the liquidation, as the Respondent to this complaint. Mr. A submits that in his letter to the WRC of 30th June 2017 he notified that the Complainant incorrectly named the Respondent and it should be amended. Any confusion as to the identity of the Respondent was entirely of the Complainant’s own making. Mr. A is seeking that the complaint be dismissed on the basis that it is not the correct Respondent.

The Complainant’s representative submits that he and the Complainant were in communication with Mr. B and were never informed that Mr. B is not the Official Liquidator. Hence the confusion. The Complainant confirmed that he objected to the appointment of Mr. A as the Official Liquidator and brought the appeal to the Court of Appeal and he did have the benefit of legal advice at the time. However, he is no longer a part of this appeal. The Complainant had no recollection of receiving the letter dated 30th June 2017 from the Respondent. The Complainant’s representative submits that the bottom line is that the Complainant is entitled to his redundancy, minimum notice and annual leave.

I note that Mr. B trading as AB Chartered Accountants is named as the Respondent.

The only evidence before me is that the Complainant was never employed by the named Respondent and that the named Respondent is not the Official Liquidator appointed by the High Court. Consequently, the only question that I must decide is whether the Company in liquidation, which is the actual Respondent can be substituted for the person impleaded in the claim.

I note the Complainant’s position that he was confused as to who was the Respondent in this case. I note that the Complainant was in contact with the first appointed Liquidator of the Company, Mr. F. The Complainant was in possession of and presented at the hearing two Redundancy Payment Application forms (RP50). The forms have been prepared by Mr. F, the first appointed Official Liquidator and signed by the Complainant (one signature undated, one dated 3rd August 2016). Both forms include employer’s details as the Company in liquidation. Following the removal by the High Court of Mr. F as the liquidator, the Complainant objected to the appointment of Mr. A as the Official Liquidator and subsequently advanced actively the Court of Appeal action. The Complainant had the benefit of legal advice at the time. I note that email correspondence was sent to the Complainant by Mr. B. However, having viewed copy available to me I am satisfied that the official letter attached to the email is signed “For and on behalf of ‘Named Company Ltd.’ (In Liquidation), A, Official Liquidator”.

Therefore, I am satisfied that the Complainant was fully aware of the correct employer’s and liquidator’s details. Moreover, I note that in his letter of 30th June 2017 Mr. A, the Official Liquidator pointed out that incorrect Respondent is listed in the Complainant’s WRC Complaint Form. The letter was signed per procuration with “For and on behalf of ‘Named Company Ltd.’ (In Liquidation), A, Official Liquidator” clearly printed. The letter was duly copied by the WRC to the Complainant on 5th July 2017. Although the Complainant claimed that he has no recollection of receiving the letter, later in the hearing his representative confirmed that he received a copy of same from the Complainant on the morning of the hearing. Therefore, the Complainant was on notice that he identified incorrect Respondent. At no stage after the receipt of the letter did the Complainant or his representative make an application to amend the proceedings so as to correctly name the intended Respondent.

In these circumstances, I have no option but to find that the Respondent herein has no liability to the Complainant under the Acts.

On the basis of the submissions of the parties I find that that the Complainant’s claims against the Respondent under the Redundancy Payments Act, the Organisation of Working Time Act and the Minimum Notice & Terms of Employment Act are not well-founded as the Respondent was at no stage his employer for the purposes of the Acts.

Incorrect respondent, company in liquidation