ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00002329
Parties:
| Complainant | Respondent |
Anonymised Parties | Head Barman | Public House |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00003119-001 | 09/03/2016 |
Date of Adjudication Hearing: 19/02/2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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.
Background:
The Complainant was employed as Head Barman from 11th September 2013 to April 2017. He was paid €574 per week average. He has claimed that he was unfairly dismissed and he has sought compensation. |
Summary of Complainant’s Case:
The Complainant’s representative stated that based on payslips he was employed by Respondent 1 and or Respondent 2. She advised that Respondent 1 was dissolved on 20th January 2016 and Respondent 2 was dissolved on 28th June 2017. Summary of Respondent’s case The Respondent did not attend and was not represented. |
Findings and Conclusions:
I note that both companies have been dissolved as follows: Respondent 1 was dissolved on 20th January 2016 and Respondent 2 was dissolved on 28th June 2017. I refer to the then Gerard Hogan S. C. concerning dissolved companies: "12. Where a company is dissolved, it ceases to have any legal existence and its assets vest in the Minister for Finance by virtue of section 28 of the State Property Act 1954. It is true that there are some express statutory provisions which give the dissolved company a legal status for certain purposes: section 311(7) of the Companies Act 1963 provides, for example, that a company which has been dissolved may still be wound up, but even then the company must apply to the High Court for restoration to the register under section 311(8) for this to take effect. 13. For this purpose, it is irrelevant that the striking off occurred by virtue of the failure to make returns under section 12(6) of the Companies (Amendment) Act 1982 (“the 1982 Act”) or for some other reason. Nor is it relevant that the company was in existence at the date of the complaint, since what matters is whether the company was in existence as of the date of the Tribunal (Adjudication) hearing. 14. Regrettable as it may be, I see no basis on which the Tribunal could continue to hear a case against a dissolved company in the absence of an express statutory power to do so. I gave consideration to the possibility that the courts might give a purposive interpretation to the word “person” under section 5 of the Interpretation Act 2005 so as to include a dissolved company, but I feel compelled to reject it. Given the express effect of the State Property Act 1954 and the fact that there are other express statutory provisions which give the dissolved company a legal existence for certain limited purposes, I feel that one is obliged to hold that the Tribunal simply has no jurisdiction in such circumstances." I note that the Labour Court determined that “a Commissioner has no jurisdiction to hear a dispute where the employer company has been dissolved” (Michael Gannon Landscaping Ltd v Golubevs MWD6/2012), the Labour Court held that, in the absence of any statutory provision giving a dissolved company a legal status for the purpose of proceedings under the Act; it had no jurisdiction to hear the complainant’s appeal. Based on the above I find that an adjudication officer has no power to hear a case and make a decision where a company has been dissolved. I find that this is the case even if the company was in existence at the time of the complaint. I find that the important date is the date of the decision.
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Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
For the above stated reasons, I have decided that I do not have jurisdiction to deal with this complaint.
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Dated: 24/07/18
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Dissolved company |