Complainant

Respondent

Anonymised Parties

An Employee

A Solicitors’ Firm

Representatives

Gary Mulchrone Gilvarry & Associates

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-00028194-001

07/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984.

CA-00028194-002

07/05/2019

The Complainant was employed by the Respondent Solicitors firm. The Principal of the firm was a Solicitor who passed away suddenly on 16 December 2017 whilst still in practice. The Principal died intestate. The business operated as a sole trader. Following his untimely death, the High Court appointed a Practice Manager on the 23rd March 2018. The business closed down on the 31st May 2018.

The Complainant was employed as a legal secretary in the Respondent Solicitor’s firm from 10/04/1996 up until 31/05/2018. On 31 March 2018 the Complainant received a letter from the Practice Manager which inter alia, put her on notice of her pending redundancy as follows: “Having reviewed the fee income to be received as opposed to liabilities to meet, I don’t see any prospect of the firm surviving long term. As you know I have discussed these matters with you on an ongoing basis since my involvement in recent times. It is my view that the firm is insolvent……. In that scenario, I am confirming what we have already discussed, and I have taken the decision to close the firm effective from the 31 May 2018. I have notified the Law Society of the position….I regret that I have no option but to make you redundant when I close the firm on the 31 of May 2018”.

On 7 June 2018 the Complainant submitted a completed RP50 to the Redundancy & Insolvency Payments Section of the Department of Employment Affairs and Social Protection (DEASP) setting out the details of her employment with the Respondent, her length of service, her PRSI Class A and her gross weekly wage of €727.95. The Complainant specified the amount of €27,192.00 as being her statutory redundancy entitlement. The RP50 was also signed by the Practice Manager on 7 June 2018.

On 25 January 2019 the Complainant received a letter from the Redundancy & Insolvency Payments Section/DEASP which advised:

“I refer to your application for a statutory Redundancy Lump Sum to be paid from the Social Insurance Fund, based on your employer’s inability to pay.

In order to make the payment we require supporting documentation, as outlined in my letter of 10/01/2019. We have not received the requisite statement of affairs showing the employer/employer’s estate’s inability to pay the lump sum.

As a result, your claim has been disallowed. You may appeal this decision – if you wish to do so you may take a case to the Workplace Relations Commission….”.

The WRC received the complaint on 7 May 2019. It is the Complainant’s contention that although this was some time after the death of the Principal, she was not clear on matters until 25 January 2019 when the DEASP refused her application for redundancy.

As regards the letter of 25 January 2019, the Complainant submitted that the DEASP had made a fundamental error in respect of the refusal of her redundancy in that she was employed by the Respondent firm and not by his estate. The Complainant submitted that the estate never took over the running of the practice, that she was not issued with a P45 nor was her employment transferred to any new employer. The Complainant maintained that she continued to work in the practice until 31 May, 2018 out of loyalty and in the knowledge she was assisting with its orderly wind down.

The Complainant maintained that the late Principal had no intention of retiring and that at the time of his death, the practice had no funds to pay redundancy and nor was there any provision for such payment. In this regard, it is the position of the Complainant that the former Principal/the practice was insolvent at the date of his death on 16 December 2017.

The Complainant agreed at the adjudication hearing to submit copy of her completed RP50 and copy of the notice of redundancy issued to her by the Practice Manager of 31 March 2018. These were received by the WRC from her legal representative on the 5th November 2019 together with accompanying letter also dated 5th November 2019.

The Practice Manager attended the adjudication hearing. He furnished copy of the High Court Order of Probate dated 14 May 2018 which, inter alia, states:

“IT IS ORDERED by the Court pursuant to Section 27(4) of the Succession Act 1965 that [the Practice Manager] be at liberty to apply for and extract a Grant of Letters of Administration Ad Calligenda Bona in the estate of the said deceased for the limited purpose of bringing about a sale of the files of the Practice of the deceased and granting a lease and or an option to purchase the premises ……. on behalf of the estate of the deceased” (bold type as per the High Court Order).

A second High Court Order of 14 May, 2018 confirmed that letters of administration “were granted by the Court to [the Practice Manager]…..to be the Administrator Ad Colligenda Bona of the Estate of said deceased limited for the purpose of bringing about a sale of the files of the Practice of the deceased and granting a lease and or an option to purchase the premises.….on behalf of the estate of the deceased”. The Practice Manager and the Complainant’s representative have specifically drawn attention to the following paragraph in this second-High Court order which reads:

“And it is hereby certified that an Affidavit for Inland Revenue has been delivered wherein it is shown that the gross value of all the Estate of the said deceased within this Jurisdiction (exclusive of what the deceased may have been possessed of or entitled to as a Trustee and not beneficiary) amounts to Eur 100.00 and that the net value thereof amounts to Eur 100.00”.

The Practice Manager submitted that the High Court Orders confirm that his appointment was for a limited purpose only – ie to manage the orderly winding up of the Respondent firm. Accordingly, he advised that he has not and is not acting as legal representative for the personal estate of the late Principal.

The Practice Manager stated that the majority of the business was personal to the late Principal, that as a consequence no new business was generated after his untimely death, that the business was seriously indebted, unable to pay its debts as they fell due and was insolvent. The Practice Manager further stated there was no prospect of the practice continuing as a going concern. The Practice Manager also clarified that the business premises was rented by the former Principal.

The Practice Manager expressed the view that a genuine redundancy situation pertained but that the practice was unable to pay redundancy to any of its employees including the Complainant due to its state of insolvency. In that regard, the Practice Manager advised that he had not been able to obtain a financial statement from the accountant’s acting for the estate. The Practice Manager expressed support for the payment of statutory redundancy to the Complainant by the DEASP.

After the adjudication hearing, the WRC received a letter from the Practice Manager dated 5th December 2019 which was in response to the earlier letter of the 5th November 2019 from the Complainant’s representative. The Practice Manager’s letter of 5 December 2019 clarified certain matters and dates relevant to the complaint which I have taken on board, gave some details in relation to the financial difficulties of the business when he took over and also stated:

“At no stage and nor have I ever challenged the entitlement of [the Complainant] which I believe are lawfully entitled to be compensated, nor do I make any challenge in relation to [her] claim now. In fact I attended the WRC Meeting….on 29 October 2019 by way of support…..

I believe [the Complainant] should be paid the monies that [she is] lawfully entitled to but the position is that the firm was closed down as it was insolvent and unable to pay its debts as they fell due. There was no sustainable future at all.

I also confirm that I am not…..acting for the Administration of the Estate…...The Estate….did not employ [the Complainant], rather my limited role as mandated by the High Court was to assess the viability of the practice continuing to exist and if that was not possible, to achieve an orderly closing down of the firm.

I support the Application being made by [the Complainant].”

Section 24 of the Redundancy Payments Act [1967-2016] provides that a question as to the right of an employee to the payment of redundancy must be referred to the WRC within 52 weeks (or 104 weeks in certain circumstances) of the date of dismissal for reason of redundancy – ie the 31st May 2018. Section 9 of the Protection of Employees (Employers’ Insolvency) Act [1984-2019] provides that an Adjudication Officer shall not entertain a complaint referred under the section if it has been presented after the expiration of 6 months. This complaint was received by the WRC on the 7th May, 2019 which was within one year of the date of redundancy and within six months of the DEASP decision of the 25th January, 2019. Therefore, I deem both complaints to have been received on time.

In terms of the substantive issues, I note there is agreement between the Complainant and the Practice Manager regarding the sequence of developments which unfolded after the untimely death of the former Principal. The Practice Manager gave credible and cogent evidence on the state of indebtedness of the practice, the personal nature of a sole trader business in a rural town, the lack of new business, the inability to maintain the firm as a going concern and his view that as a result, the firm was insolvent. The views expressed by the Practice Manager at the adjudication hearing were consistent with his notice of redundancy to the Complainant of 31 March 2018 wherein he stated “It is my view that the firm is insolvent and I do not see a future for it….” and with his subsequent letter to the WRC of the 5th December, 2019.

The Complainant was notified of her redundancy by letter from the Practice Manager of the 31st March, 2018 wherein he stated - “….that I have no option but to make you redundant when I close the firm down on the 31 of May 2018”. From the submissions and evidence adduced at the adjudication hearing, I am satisfied that the death of the Principal of the Respondent firm had a profound effect on the ability of the business to continue and that it was substantially the cause of the firm’s closure. Having considered all the evidence adduced, I am satisfied that a genuine redundancy situation arose for the Complainant as and from the 31st May, 2018 due to the closure of the firm and the fact that it did not continue as a going concern.

A critical issue which arises in this case, is the matter of the correct Respondent. I wrote to the parties on the 18th December, 2019 inviting submissions on this matter. I received the Complainant’s response on the 9th January, 2020 which reiterated the position of the Complainant that her employer was the Respondent firm. Having considered the submissions and evidence adduced, I am satisfied the Respondent cited on the Complaint Form was the Complainant’s employer.

In the 9th January letter, the Complainant’s legal representative stated:

“…..the complaints brought on behalf of the [Complainant do] not solely relate to the refusal of the Minister of Social Protection to make the payment due to the [Complainant] under the Insolvency Payment Scheme; It also refers to the failure of the Employer to make a redundancy payment in the first instance. Accordingly, two findings are sought;

1.       That [the Complainant] is entitled to receive redundancy.

2.       Arising from the death of their employer and the inability of the entity operated by him to pay their Statutory Redundancy entitlements, that an Insolvency situation arises entitling [the Complainant] to payment under the Insolvency Payment Scheme.”

Accordingly, the letter of the 9th January, 2020 clarifies that the Complainant is seeking two decisions against two different parties – ie the Complainant’s employer and the Minister for Employment Affairs and Social Protection/DEASP.

In relation to the Protection of Employees (Employers’ Insolvency) Act [1984-2019], Section 9(1) of the Act states:

“A person who has applied for a payment –

a)      under section 6 of a debt described in subparagraph (i), (ii) or (iv) of subsection (2)(a) of that section…..

b)      ……..

may present a complaint to the Director General that –

(i)                  the Minister has failed to make such a payment, or

(ii)                any such payment made by the Minister is less than the amount that the Minister is required to pay…..”.

Sections 6(2)(a) (i) – (xxxii) set out the debts which may be recovered under the Protection of Employees (Employers’ Insolvency) Act [1984-2019]. From the provisions outlined, this Act does not provide for recovery of a debt in respect of a redundancy. Accordingly, in my view, this Act is not applicable in so far as the Complainant’s claim for redundancy is concerned.

Section 32(1) of the Redundancy Payments Act [1967-2016] sets out the circumstances where an employee may apply to the Minister for payment from the Social Insurance Fund. In this regard, the section states:

“When an employee claims that an employer is liable to pay to him a lump sum under section 19 and that —

a)      the employee has taken all reasonable steps (other than legal proceedings) to obtain the payment of the lump sum from the employer and the employer has refused or failed to pay it or has paid part of it and has refused or failed to pay the balance, or

b)      the employer is insolvent and the whole or part of the lump sum remains unpaid, or

c)       the employer has died and neither probate of his will has, nor letters of administration in respect of his estate have, been granted, and the whole or part of the lump sum remains unpaid,

the employee may apply to the Minister for a payment under this section.”

Section 39(15) of the Redundancy Payments Act [1967-2016] provides that:

“…….. any employee who is dissatisfied with a decision given by a deciding officer under section 38 or with any decision of an employer under this Act….may appeal to the.…Director General against the decision; provided however, that the Director General shall not be competent to decide whether or not an employee is or was at the material time in employment which is or was insurable for all benefits under the Social Welfare Acts.…”

The Complainant has appealed the decision of the DEASP as conveyed in its letter of the 25th January, 2019 pursuant to the Redundancy Payments Act [1967-2016]. However, the DEASP has not been cited as a Respondent. Accordingly, I am of the view that I do not have jurisdiction to decide a case or issue a decision in respect of a Respondent who has not been cited and has therefore not had the opportunity to present a case before me.

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint and appeal, in accordance with the relevant redress provisions under that Act. In that regard, I have decided that a genuine redundancy situation arose for the Complainant as and from the 31st May, 2018 due to the closure of the business. Consequently, the Complainant’s employer is/was liable to pay a redundancy lump sum to her in accordance with the terms of the Redundancy Payments Acts 1967 – 2012. The complaint against the employer is well founded and the Complainant is therefore entitled to a redundancy payment based on the following criteria:

·         Date of Commencement:     10th April, 1996

·         Date of Termination:             31st May, 2018

·         Gross Weekly Pay:                   €727.95

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

For the reasons outlined, the appeal against the Minister/DEASP’s decision of the 25th January, 2019 is not well founded.

Section 9 of the Protection of Employees (Employers’ Insolvency) Acts, 1984 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 9 of that Act. For the reasons already outlined, I decide this complaint is not well founded.

An Employee V A Solicitors’ Firm

Complainant

Respondent

Anonymised Parties

An Employee

A Solicitors’ Firm

Representatives

Gary Mulchrone Gilvarry & Associates

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-00028194-001

07/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984.

CA-00028194-002

07/05/2019

The Complainant was employed by the Respondent Solicitors firm. The Principal of the firm was a Solicitor who passed away suddenly on 16 December 2017 whilst still in practice. The Principal died intestate. The business operated as a sole trader. Following his untimely death, the High Court appointed a Practice Manager on the 23rd March 2018. The business closed down on the 31st May 2018.

The Complainant was employed as a legal secretary in the Respondent Solicitor’s firm from 10/04/1996 up until 31/05/2018. On 31 March 2018 the Complainant received a letter from the Practice Manager which inter alia, put her on notice of her pending redundancy as follows: “Having reviewed the fee income to be received as opposed to liabilities to meet, I don’t see any prospect of the firm surviving long term. As you know I have discussed these matters with you on an ongoing basis since my involvement in recent times. It is my view that the firm is insolvent……. In that scenario, I am confirming what we have already discussed, and I have taken the decision to close the firm effective from the 31 May 2018. I have notified the Law Society of the position….I regret that I have no option but to make you redundant when I close the firm on the 31 of May 2018”.

On 7 June 2018 the Complainant submitted a completed RP50 to the Redundancy & Insolvency Payments Section of the Department of Employment Affairs and Social Protection (DEASP) setting out the details of her employment with the Respondent, her length of service, her PRSI Class A and her gross weekly wage of €727.95. The Complainant specified the amount of €27,192.00 as being her statutory redundancy entitlement. The RP50 was also signed by the Practice Manager on 7 June 2018.

On 25 January 2019 the Complainant received a letter from the Redundancy & Insolvency Payments Section/DEASP which advised:

“I refer to your application for a statutory Redundancy Lump Sum to be paid from the Social Insurance Fund, based on your employer’s inability to pay.

In order to make the payment we require supporting documentation, as outlined in my letter of 10/01/2019. We have not received the requisite statement of affairs showing the employer/employer’s estate’s inability to pay the lump sum.

As a result, your claim has been disallowed. You may appeal this decision – if you wish to do so you may take a case to the Workplace Relations Commission….”.

The WRC received the complaint on 7 May 2019. It is the Complainant’s contention that although this was some time after the death of the Principal, she was not clear on matters until 25 January 2019 when the DEASP refused her application for redundancy.

As regards the letter of 25 January 2019, the Complainant submitted that the DEASP had made a fundamental error in respect of the refusal of her redundancy in that she was employed by the Respondent firm and not by his estate. The Complainant submitted that the estate never took over the running of the practice, that she was not issued with a P45 nor was her employment transferred to any new employer. The Complainant maintained that she continued to work in the practice until 31 May, 2018 out of loyalty and in the knowledge she was assisting with its orderly wind down.

The Complainant maintained that the late Principal had no intention of retiring and that at the time of his death, the practice had no funds to pay redundancy and nor was there any provision for such payment. In this regard, it is the position of the Complainant that the former Principal/the practice was insolvent at the date of his death on 16 December 2017.

The Complainant agreed at the adjudication hearing to submit copy of her completed RP50 and copy of the notice of redundancy issued to her by the Practice Manager of 31 March 2018. These were received by the WRC from her legal representative on the 5th November 2019 together with accompanying letter also dated 5th November 2019.

The Practice Manager attended the adjudication hearing. He furnished copy of the High Court Order of Probate dated 14 May 2018 which, inter alia, states:

“IT IS ORDERED by the Court pursuant to Section 27(4) of the Succession Act 1965 that [the Practice Manager] be at liberty to apply for and extract a Grant of Letters of Administration Ad Calligenda Bona in the estate of the said deceased for the limited purpose of bringing about a sale of the files of the Practice of the deceased and granting a lease and or an option to purchase the premises ……. on behalf of the estate of the deceased” (bold type as per the High Court Order).

A second High Court Order of 14 May, 2018 confirmed that letters of administration “were granted by the Court to [the Practice Manager]…..to be the Administrator Ad Colligenda Bona of the Estate of said deceased limited for the purpose of bringing about a sale of the files of the Practice of the deceased and granting a lease and or an option to purchase the premises.….on behalf of the estate of the deceased”. The Practice Manager and the Complainant’s representative have specifically drawn attention to the following paragraph in this second-High Court order which reads:

“And it is hereby certified that an Affidavit for Inland Revenue has been delivered wherein it is shown that the gross value of all the Estate of the said deceased within this Jurisdiction (exclusive of what the deceased may have been possessed of or entitled to as a Trustee and not beneficiary) amounts to Eur 100.00 and that the net value thereof amounts to Eur 100.00”.

The Practice Manager submitted that the High Court Orders confirm that his appointment was for a limited purpose only – ie to manage the orderly winding up of the Respondent firm. Accordingly, he advised that he has not and is not acting as legal representative for the personal estate of the late Principal.

The Practice Manager stated that the majority of the business was personal to the late Principal, that as a consequence no new business was generated after his untimely death, that the business was seriously indebted, unable to pay its debts as they fell due and was insolvent. The Practice Manager further stated there was no prospect of the practice continuing as a going concern. The Practice Manager also clarified that the business premises was rented by the former Principal.

The Practice Manager expressed the view that a genuine redundancy situation pertained but that the practice was unable to pay redundancy to any of its employees including the Complainant due to its state of insolvency. In that regard, the Practice Manager advised that he had not been able to obtain a financial statement from the accountant’s acting for the estate. The Practice Manager expressed support for the payment of statutory redundancy to the Complainant by the DEASP.

After the adjudication hearing, the WRC received a letter from the Practice Manager dated 5th December 2019 which was in response to the earlier letter of the 5th November 2019 from the Complainant’s representative. The Practice Manager’s letter of 5 December 2019 clarified certain matters and dates relevant to the complaint which I have taken on board, gave some details in relation to the financial difficulties of the business when he took over and also stated:

“At no stage and nor have I ever challenged the entitlement of [the Complainant] which I believe are lawfully entitled to be compensated, nor do I make any challenge in relation to [her] claim now. In fact I attended the WRC Meeting….on 29 October 2019 by way of support…..

I believe [the Complainant] should be paid the monies that [she is] lawfully entitled to but the position is that the firm was closed down as it was insolvent and unable to pay its debts as they fell due. There was no sustainable future at all.

I also confirm that I am not…..acting for the Administration of the Estate…...The Estate….did not employ [the Complainant], rather my limited role as mandated by the High Court was to assess the viability of the practice continuing to exist and if that was not possible, to achieve an orderly closing down of the firm.

I support the Application being made by [the Complainant].”

Section 24 of the Redundancy Payments Act [1967-2016] provides that a question as to the right of an employee to the payment of redundancy must be referred to the WRC within 52 weeks (or 104 weeks in certain circumstances) of the date of dismissal for reason of redundancy – ie the 31st May 2018. Section 9 of the Protection of Employees (Employers’ Insolvency) Act [1984-2019] provides that an Adjudication Officer shall not entertain a complaint referred under the section if it has been presented after the expiration of 6 months. This complaint was received by the WRC on the 7th May, 2019 which was within one year of the date of redundancy and within six months of the DEASP decision of the 25th January, 2019. Therefore, I deem both complaints to have been received on time.

In terms of the substantive issues, I note there is agreement between the Complainant and the Practice Manager regarding the sequence of developments which unfolded after the untimely death of the former Principal. The Practice Manager gave credible and cogent evidence on the state of indebtedness of the practice, the personal nature of a sole trader business in a rural town, the lack of new business, the inability to maintain the firm as a going concern and his view that as a result, the firm was insolvent. The views expressed by the Practice Manager at the adjudication hearing were consistent with his notice of redundancy to the Complainant of 31 March 2018 wherein he stated “It is my view that the firm is insolvent and I do not see a future for it….” and with his subsequent letter to the WRC of the 5th December, 2019.

The Complainant was notified of her redundancy by letter from the Practice Manager of the 31st March, 2018 wherein he stated - “….that I have no option but to make you redundant when I close the firm down on the 31 of May 2018”. From the submissions and evidence adduced at the adjudication hearing, I am satisfied that the death of the Principal of the Respondent firm had a profound effect on the ability of the business to continue and that it was substantially the cause of the firm’s closure. Having considered all the evidence adduced, I am satisfied that a genuine redundancy situation arose for the Complainant as and from the 31st May, 2018 due to the closure of the firm and the fact that it did not continue as a going concern.

A critical issue which arises in this case, is the matter of the correct Respondent. I wrote to the parties on the 18th December, 2019 inviting submissions on this matter. I received the Complainant’s response on the 9th January, 2020 which reiterated the position of the Complainant that her employer was the Respondent firm. Having considered the submissions and evidence adduced, I am satisfied the Respondent cited on the Complaint Form was the Complainant’s employer.

In the 9th January letter, the Complainant’s legal representative stated:

“…..the complaints brought on behalf of the [Complainant do] not solely relate to the refusal of the Minister of Social Protection to make the payment due to the [Complainant] under the Insolvency Payment Scheme; It also refers to the failure of the Employer to make a redundancy payment in the first instance. Accordingly, two findings are sought;

1.       That [the Complainant] is entitled to receive redundancy.

2.       Arising from the death of their employer and the inability of the entity operated by him to pay their Statutory Redundancy entitlements, that an Insolvency situation arises entitling [the Complainant] to payment under the Insolvency Payment Scheme.”

Accordingly, the letter of the 9th January, 2020 clarifies that the Complainant is seeking two decisions against two different parties – ie the Complainant’s employer and the Minister for Employment Affairs and Social Protection/DEASP.

In relation to the Protection of Employees (Employers’ Insolvency) Act [1984-2019], Section 9(1) of the Act states:

“A person who has applied for a payment –

a)      under section 6 of a debt described in subparagraph (i), (ii) or (iv) of subsection (2)(a) of that section…..

b)      ……..

may present a complaint to the Director General that –

(i)                  the Minister has failed to make such a payment, or

(ii)                any such payment made by the Minister is less than the amount that the Minister is required to pay…..”.

Sections 6(2)(a) (i) – (xxxii) set out the debts which may be recovered under the Protection of Employees (Employers’ Insolvency) Act [1984-2019]. From the provisions outlined, this Act does not provide for recovery of a debt in respect of a redundancy. Accordingly, in my view, this Act is not applicable in so far as the Complainant’s claim for redundancy is concerned.

Section 32(1) of the Redundancy Payments Act [1967-2016] sets out the circumstances where an employee may apply to the Minister for payment from the Social Insurance Fund. In this regard, the section states:

“When an employee claims that an employer is liable to pay to him a lump sum under section 19 and that —

a)      the employee has taken all reasonable steps (other than legal proceedings) to obtain the payment of the lump sum from the employer and the employer has refused or failed to pay it or has paid part of it and has refused or failed to pay the balance, or

b)      the employer is insolvent and the whole or part of the lump sum remains unpaid, or

c)       the employer has died and neither probate of his will has, nor letters of administration in respect of his estate have, been granted, and the whole or part of the lump sum remains unpaid,

the employee may apply to the Minister for a payment under this section.”

Section 39(15) of the Redundancy Payments Act [1967-2016] provides that:

“…….. any employee who is dissatisfied with a decision given by a deciding officer under section 38 or with any decision of an employer under this Act….may appeal to the.…Director General against the decision; provided however, that the Director General shall not be competent to decide whether or not an employee is or was at the material time in employment which is or was insurable for all benefits under the Social Welfare Acts.…”

The Complainant has appealed the decision of the DEASP as conveyed in its letter of the 25th January, 2019 pursuant to the Redundancy Payments Act [1967-2016]. However, the DEASP has not been cited as a Respondent. Accordingly, I am of the view that I do not have jurisdiction to decide a case or issue a decision in respect of a Respondent who has not been cited and has therefore not had the opportunity to present a case before me.

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint and appeal, in accordance with the relevant redress provisions under that Act. In that regard, I have decided that a genuine redundancy situation arose for the Complainant as and from the 31st May, 2018 due to the closure of the business. Consequently, the Complainant’s employer is/was liable to pay a redundancy lump sum to her in accordance with the terms of the Redundancy Payments Acts 1967 – 2012. The complaint against the employer is therefore well founded.

For the reasons outlined, the appeal against the Minister/DEASP’s decision of the 25th January, 2019 is not well founded.

Section 9 of the Protection of Employees (Employers’ Insolvency) Acts, 1984 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 9 of that Act. For the reasons already outlined, I decide this complaint is not well founded.  

An Employee V A Solicitors’ Firm