ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00005881
Parties:
| Complainant | Respondent |
Anonymised Parties | An Administrator | A Dissolved Company |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00006826-001 | 06/09/2016 |
Date of Adjudication Hearing: 19/01/2017
Workplace Relations Commission Adjudication Officer: Michael Hayes
Location of Hearing: Galway Maldron Hotel
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 - 2014following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The complainant was first employed by the respondent’s predecessor from the 5th of February 2007 and worked as a receptionist/secretary/administrator. Her employment transferred to the herein respondent on the 7th of October 2013. She was paid €485.09 and worked 40 hours per week. Her employment ceased on the 12th of September 2014. The parties made written and oral submission to the hearing. A submission in behalf of the former owner/director of the respondent was received post hearing.
Preliminary Issue(s):
- The respondent submits that the complaintis “out of time” and therefore statute barred.
- The complainant submits that the complainant initially felt assured that her statutory entitlement would be honoured as indicated by the owner’s father (his company had employed her initially), based on the assertion of the owner/director that there was no more work for her. She stopped asking for her entitlement when she heard that he had a heart attack (just after her mother suffered the same fate). She is not confrontational by nature and wasn’t able to confront the issue till much later.
- The respondent company has been dissolved and therefore I have no jurisdiction.
Summary of Complainant’s Case:
The complainant submits that she was advised by the respondent that it was the intention to close the business and that there would be no work for her. She was advised by the respondent’s dad (her former employer and original transferor) that she would be paid her statutory redundancy. This didn’t happen and he sustained a heart attack thereafter. The respondent’s work relationship with her father was always fractious which resulted in a tense atmosphere in the office. She was contacted by the respondent by telephone on Sunday the 17th of August 2014 and informed that she was closing the business and that there would be no job for her. She was also instructed not to attend for work on the following day. She was contacted by the respondent’s father on the 19th inst. and he asked for an explanation for her absence and having provided one she was invited in for a chat. She met him on the 20th inst. and was assured that she would receive what she was due (as she understood it her redundancy entitlement). She was given notice but not obliged to work it. She was paid till 12th of September 2014. She subsequently wrote three letters one to the respondent and two to her father. She felt and was continuously assured that the matter would be resolved to her satisfaction. She met the respondent’s father by chance during the summer of 2015 (he had suffered a heart attack earlier in the year) and he once again assured her of his good faith in relation to the payment of her redundancy entitlement.
Summary of Respondent’s Case:
Per letter to the WRC of 22nd of December 2016 the abovementioned Solicitors in behalf of the respondent (Dissolved) submit that the complainant resigned to take up a position with a named company. The respondent continued to trade until July 2015 at which point due to a difficulty in sourcing licenced staff its assets and employee transferred to another named company.
Findings and Conclusions – Preliminary Issue(s):
The complainant’s submission in relation to preliminary issue 1 above is accepted and I hereby extend the cognisable period for making the complaint to 104 weeks.
Concerning preliminary issue 2 the Workplace Relations Commission relies upon the legal opinion of Senior Counsel sought by the former Equality Tribunal in relation to investigations of dissolved companies which concluded as follows: -
“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 s. 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 have considered the abovementioned legal advice and accept the conclusion.
Decision – Preliminary Issue(s):
I do not have jurisdiction to hear the complaint against a dissolved company.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
The complaint is not well founded.
Dated: 24th July 2018
Workplace Relations Commission Adjudication Officer: Michael Hayes