PERD211

FULL RECOMMENDATION

SECTION 42, EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYMENT) REGULATIONS, 2000

PARTIES :

WHARTONS TRAVEL LIMITED

- AND -

MR JOHN BROWNE
(REPRESENTED BY RICHARD GROGAN ASSOCIATES)

DIVISION :

SUBJECT:

1.Appeal Of Adjudication Officer Decision No's:ADJ-00027500, CA-00035245-001

BACKGROUND:

2.Mr. Browne, ‘the Complainant’, worked for Wharton’s Travel Ltd., ‘the Respondent’ from March 2005 to May 2018.

The Complainant lodged a claim with the Workplace Relations Commission, ‘WRC’, that the Respondent had breached Sections 9 and 10 of the Protection of Employment Act 1977 and sought adjudication under Regulation 6 of The European Communities (Protection of Employment) Regulations, 2000.

At the WRC hearing in February 2021, it was confirmed that the Respondent had been dissolved in February 2020.

The Adjudication Officer, ‘AO’, held that he did not have jurisdiction to hear the complaint.

The Complainant appealed to this Court.

The Respondent did not attend the Court hearing.


WORKER’S ARGUMENTS:

3. The Complainant was laid off in May 2018. He was told that he was being made redundant. He repeatedly asked the Respondent to complete the relevant form, RP50, from June 2018. He then sent a completed RP50 to the company in March 2019, which was returned to him by the Respondent in June 2019.

This was then submitted to the Redundancy and Insolvency Section of the Department of Social Protection. At that stage, the Department required a letter from the Accountant stating why the claim was late. This was not forthcoming. The Complainant was advised in January 2021 that his claim was withdrawn and that he would have to go to the WRC.

The AO decided that the WRC did not have jurisdiction as the Respondent had ceased to exist.

The relevant EU Insolvency Directive has direct effect. It does not require that the entity be in existence. Effectively, it provides that that the Department is the default body responsible for payment of the Redundancy sum.

It is appreciated that the Court’s jurisprudence to date has been to refuse jurisdiction. The Court may consider whether this is an appropriate case to send to the European Court for determination.

EMPLOYER'S ARGUMENTS:

4. The Respondent did not attend the Court hearing.

DETERMINATION:

Deliberation.

On the uncontested facts put to the Court, it would appear that the Complainant finds himself in the invidious position of having been made redundant but being unable to secure a redundancy payment.

However, as the Complainant’s representative acknowledged, the Court has dealt with issues in the past where there was no longer a Respondent in existence. In this case, the named Respondent is Wharton’s Travel Ltd. It is not disputed that this entity no longer exists. There is no case before the Court involving any other Respondent. Therefore, the Court is being asked to make a Determination in respect of an entity that has ceased to exist.

InMichael Gannon Landscaping Ltd. v. Janis Golubevs MWD 126,the Court stated the following;

The Court was informed that the respondent company has been dissolved. Consequently, the respondent company in this case has ceased to have any legal existence and its assets, (if any), have been vested in the Minister for Finance by virtue of Section 28 of the State Property Act, 1954. In the absence of any statutory provision giving a dissolved company a legal status for the purpose of proceedings under the Act, the Court has no jurisdiction to hear this appeal. The Court determines accordingly’

No argument was put to the Court to cause it to alter or vary the application of this approach to the instant case. Accordingly, the appeal must fail.

Determination

The Decision of the Adjudication Officer is affirmed.

NOTE

Enquiries concerning this Determination should be addressed to Cathal Nurney, Court Secretary.