Complainant

Respondent

Anonymised Parties

A Manager

A Food Company

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-00013838-001

10/09/2017

The respondent says that the complainant’s contract of employment was terminated on July 24th 2017 as a direct result of the High Court winding up her employer, the respondent company due to insolvency.

The legal position is established by the decision of the High Court in Donnelly v Gleeson (High Court, Unreported 11th July 1978) by Hamilton P. where, having considered earlier authorities, he set out their effect as follows;

(a)    A court order for the winding up of a company is, in the ordinary case deemed to be a discharge of the company’s servants.

(b)    The servant can however be kept on in the same terms as his original contract by being specifically requested to do so, and

(c)     The effect of a winding up order as a notice of discharge can be waived.

In this case, the Liquidator did continue to operate some parts of the business and retained some employees.

However, the retention of some employees did not create any rights for others whose employment was terminated by operation of law. The complainant was advised of this on September 11th and invited to submit any claims she had against the company but she elected not to do so.

A questionnaire was sent to her for completion aimed at establishing any entitlements she wished to assert to outstanding holidays, arrears of wages, minimum notice or redundancy and for the purpose of making an application to the Insolvency fund in relation to any payments due to her.

In response to the complainant’s submission on the TUPE the respondent says that this case was not submitted under that legislation and does not arise.

In respect of any pending proceedings an Adjudicator is bound to follow the law as it has been set out to that date.

There is no guarantee that a case listed elsewhere will proceed to trial or that the outcome will be any different. Accordingly, an adjudicator must deal with a case properly before them on the basis of the current law.

The complainant started work with the respondent in June 2011 and two years later was promoted to a manager role.

On June 29th a provisional liquidator was appointed to the company and she was placed on temporary layoff on July 12th.

The company was wound up on July 24th and her employment was terminated.

She claims unfair dismissal.

She also says that a transfer of undertaking can arise in the case of a company in liquidation and relied on a Judgement of the CJEU of November 14th 1996 Claude Botsart de Hertaing v Benoidt SA in liquidation and IGC Housing Service Ltd.

She also referred to Rousk v Sweden (2013) 27183/04.

She says that as the appeal against the High Court decision in respect of the liquidation is still pending that this has the effect of continuing the protection of her employment rights.

The making of a decision in this case would mean that it would be based on a decision of the High Court only when the matter has yet to go to appeal.

There was some understandable emotion in this case as it had been a family business in which the complainant’s family was involved.

Nonetheless, her complaint solely concerns whether she was unfairly dismissed.

I considered the material submitted at the hearing but I dismiss the two European cases as having no bearing on the issues involved.

Botsart de Hertaing v Benoidt involves the Transfer of Undertakings regulations and has no application in the current case.

Relying on the Rousk case the complainant sought a deferral of the case until the High Court decision is decided on appeal.

Once a case is referred to the WRC and listed for a hearing, an Adjudicator is entitled to proceed subject only to whether it is within his jurisdiction as defined by statute and the higher courts to hear and decide on it. I could discern no authority in the Rousk case, of which only an extract was provided, which could be said to restrain the progress of the hearing as sought by the complainant.

That brings us to the central point made by the respondent; i.e. whether the decision to terminate the complainant’s employment is, in fact, within the jurisdiction of a WRC Adjudicator.

I find on the basis of the dicta in Donnelly v Gleeson, and the other authorities referred to in that case that it is not. Those cases do not, of course explicitly address the jurisdiction of inferior tribunals, that is not the point.

But they determine as a matter of law that the winding up of the company is a discharge of the contract of employment, and it is impossible to see how this tribunal could then take unto itself the authority to examine whether it was or not, and perhaps then proceed take a different view to the High Court.

To undertake any review of the circumstances of the termination would be to challenge a decision and the authority of the High Court, which has determined the matter of the complainant’s employment, and this is transparently not legally possible.

Accordingly, I find in favour of the respondent as set out above and dismiss the complaint.

The complainant’s employment was terminated on foot of the High Court decision and I have no jurisdiction to consider it further.

For the reasons set out above I find I do not have jurisdiction to decide complaint CA-00013838 and it is dismissed.

Unfair Dismissal, Court liquidation, Jurisdiction