FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : COLD MOVE DUBLIN LIMITED (IN LIQUIDATION) (REPRESENTED BY BEAUCHAMPS SOLICITORS) - AND - MR ALAN MULVEY (REPRESENTED BY MARTIN FARRELLY HR CONSULTING LIMITED) DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-00025200. This is an appeal by Mr Alan Mulvey (‘the Worker’) from a recommendation of an Adjudication Officer (ADJ-00025200/CA-00032063-003, dated 20 October 2020) under the Industrial Relations Act 1969 (‘the Act’). The Worker’s Notice of Appeal was received on 29 November 2020. The Court heard the appeal in Dublin on 13 July 2022, in conjunction with the Worker’s related appeals under the Unfair Dismissals Act 1977 (UD/20/188); the Minimum Notice and Terms of Employment Act 1973 (MN/20/9); the Organisation of Working Time Act 1997 (WTC/20/65) and the Payment of Wages Act 1991 PW/20/66. The Factual Matrix: Cold Move (Dublin) Limited (In Liquidation) (‘the Company’) provided a supply chain management service for businesses involved in retail, the food service industry and manufacturing. It is fully owned by Malonvale Limited (In Liquidation) (‘Malonvale’). Mr Jason Mallon owns 100% of the shares in Malonvale. A Liquidator was appointed to both companies on 6 March 2020. It is necessary to say something about the prior history of the Respondent’s ownership in order to give context to the events that are material to the within appeal. The Respondent company was incorporated in January 2006. Mr Mallon was employed in a management position by the Respondent from 2006. In 2015, he led a management buy-out of the company. Mr John Casey joined the Respondent’s board in or around this time. A company controlled by Mr Casey – Donworth Capital Limited (‘Donworth’) simultaneously obtained a shareholding in Malonvale which had acquired 100% ownership of the Respondent as part of the management buy-out of the latter. Mr Casey resigned as a director of the Respondent on 14 July 2019 and Mr Mallon acquired Donworth’s shareholding in Malonvale. The Respondent was experiencing cashflow difficulties at this time and underwent significant restructuring in an attempt to trade its way back to profitability. It sought the protection of the High Court and was placed in Interim Examinership. However, this was not successful and Mr Aiden Murphy of Crowe Ireland was appointed Liquidator over the Respondent. It is common case that Mr Mallon summarily dismissed the Worker in the course of a brief telephone call on 11 October 2019. However, the Parties disagree in relation to the date on which the Worker’s employment with the Respondent commenced. The Worker’s case is that he commenced his employment with the Respondent “in May or June” 2018. It is submitted on the Respondent’s behalf, however, that prior to Mr Casey’s resignation as a director of the Respondent, the Worker had been employed by Donworth and had provided management support services in a part-time consultative capacity only to the Respondent from mid-2018 up until August 2019. The Parties agree that a different company – Galmere Foods Limited – also controlled by Mr Casey – invoiced the Respondent on a monthly basis between August 2018 and July 2019 for the Worker’s services (and those of Ms Fiona Kelly, a Data Analyst). It is also common case that the question of the Worker’s future employment following Mr Casey’s resignation formed part of the discussions between Mr Mallon and Mr Casey in the lead-up to Mr Casey and Donworh’s exit from the Respondent’s business. On Mr Casey’s instructions, Ms Kelly forwarded an employment contract for the Worker, by way of an attachment to an email dated 28 May 2019. Mr Mallon told the Court that he accepts that the email was sent but he did not personally open it or download the attached contract on that date or at all as he relied on his personal assistant to handle correspondence. However, he accepts that the Worker – and Mr Casey on his behalf – was anxious to achieve some certainty about his future employment. According to Mr Mallon, discussions about exiting Mr Casey and Donworth from the Respondent’s business had been ongoing since mid-2018 and were difficult and many issues unrelated to the Worker had priority in that context for Mr Mallon with the result that he deferred giving any attention to Mr Casey’s employment issues until the exit deal with Mr Casey was almost concluded. Decision of the Court in UD/20/188: In determining the Worker’s claim of unfair dismissal contrary to the Unfair Dismissals Act 1977 (See Determination UD/20/188), the Court gave detailed consideration to the course of dealings between the Worker and the Respondent and in particular to the contract of employment signed by the Worker on 29 May 2019. It found in its Determination in that appeal that the Worker’s direct employment with the Respondent commenced on 17 August 2019 and terminated on 11 October 2019. The Dispute: The dispute between the Parties under the 1969 Act relates to a claim for outstanding expenses totalling €6,679.96 which the Worker submits he incurred in the course of his employment with the Company. The Worker relies on Clause 14 of the contract of employment he signed on 29 May 2019 to advance his claim regarding unpaid expenses. Clause 14 provides:
Discussion and Conclusion: The Worker submitted a schedule of expenses and the dates on which he says he incurred them. There is no explanation given for any of the individual amounts claimed. The schedule covers the period June 2018 to September 2019. The Court, having found in UD/20/188, that the Worker was directly employed by the Company from 17 August 2019 to 11 October 2019, finds the Company could have no liability for expenses incurred outside those dates. Furthermore, the Worker told the Court that he did not seek Mr Mallon’s approval for payment of any expenses and his claim, in any event, is not vouched. In fact, when questioned by the Court, the Worker admitted that he had incurred the expenses while in the employment of Donworth and in the course of his work for Donworth. The Court also has regard to the Company’s uncontradicted submission that the Worker was engaged in a technical role that was not customer-facing. The Worker’s appeal, therefore, fails and the recommendation of the Adjudication Officer is upheld. There is a further matter that arises in relation to the Workers’ appeal under the 1969 Act. At paragraph 56 of his written submission to the Court he includes a claim for a contribution of up to €15,000.00 per annum to an approved pension scheme arising from Clause 10 of his contract of employment. He is seeking €20,000.00 in total under this heading. However, this matter did not form part of the Worker’s referral to the Workplace Relations Commission under the 1969 Act. It did form part of his claim in that forum under the Payment of Wages Act 1991 but was dismissed by the Adjudication Officer. It is not properly before the Court as part of the Worker’s appeal under the 1969 Act. The Court so decides.
NOTE Enquiries concerning this Decision should be addressed to Shane Lyons, Court Secretary. |
