ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00031060

Parties:

	Complainant	Respondent
Parties	Patrick Devereux	James C Byrne Manufacturing Limited t/a Byrnes Jewellers. (Company no longer registered at the Company Registration Office)

Representatives

Self-Represented but assisted by former Colleague.

Derek Sweeney , acting in a private capacity, on behalf of the former Owner.

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-00041278-001	25/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00041278-002	25/11/2020

Date of Adjudication Hearing: 27/05/2021 and 09/11/2021

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.

The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury was explained to all parties.

Full cross examination of Witnesses was allowed.

Due to Covid 19 difficulties the publication of the Adjudication finding was delayed.

Background:

The Complainant commenced employment in 1969 and remained so until the 2nd November 2020. Notice of Redundancy was received on the 2nd November 2020. He received no notice pay or Statutory redundancy.

The Complainant stated that he had received a weekly wage of €630 Gross for a 40-hour week.

Opening Arguments

The Representative for the Respondent stated that the former employer had been struck off the Companies Register (CRO) on the 13th March 2020. Accordingly, the Respondent cannot be a Party to any proceedings as they had, legally, ceased to exist.

The Complainant acknowledged this situation but requested the Respondent to complete Department of Employment and Social Protection (DEASP) forms to allow a claim for Statutory Redundancy be made to the Department or the Employers Insolvency Fund.

The Respondent declined, on his Legal advice, to complete the necessary forms.

The Complainant now requested an Adjudication decision, to submit to the DEASP, stating that he satisfied the conditions for a Statutory Redundancy payment. It was his understanding that this was a required formality from the DEASP Redundancy section.

1: Summary of Respondent’s Case:

The Respondent Company has ceased to exist and as such no case can be brought against them. The legal advice received by the Respondent is, in this context, to decline to sign any DEASP paperwork.

From verbal discussion at the first and second Oral (Virtual) Hearings the Respondent wishes the Complainant well but will not, on legal advice, sign any DEASP forms.

The former owner was unwell at the time of the Hearings and unable to attend.

2: Summary of Complainant’s Case:

The Complainant had worked for the former employer for some 51 years. The Complainant was completely unaware of and was never notified of the CRO Strike Off. The letter of the 2nd November 2020 from the former Owner/Manager clearly indicates that “You would be entitled to redundancy payments”. The Employer’s Insolvency Fund is suggested.

The Complainant now understands that an Adjudication Decision is required by the DEASP to expedite any Redundancy payments that may be due to him.

The Complainant is aware that the entire situation surrounding the CRO Strike Off could be subject to extensive Legal proceedings. However, these are well beyond his financial means.

3: Findings and Conclusions: CA: 00041278-001

This claim is brought under the Redundancy Payments Act,1967.

Under the provisions of this Act, Section 39, I decide that the Complainant is entitled to a Statutory Redundancy payment based on his service from (a date to be confirmed from it is believed DEASP records) in 1969 to his Redundancy on the 2nd November 2020. His weekly wage was €630 per week.

The Adjudication Officer has noted the Supreme Court, Glegola v Minister for Social Protection & Ors [2018] IESC 65 case, which although not strictly comparable does clearly indicate a useful precedent for this case.

As the former employer has been “struck off” the Companies Registrar the initial payment of the Statutory redundancy would now appear to be, initially, a matter for the Employers Insolvency Fund. as operated by the DEASP.

4: Decision:

Section 41 of the Workplace Relations Act 2015 and Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions of the cited Acts.

Under Section 39 of the Redundancy payments Act,1967 Statutory redundancy (from 1969 to the 2nd November 2020) the Complainant is deemed qualified for a Statutory Redundancy payment.

Dated: 8th February 2022

Workplace Relations Commission Adjudication Officer: Michael McEntee

Key Words:

Redundancy, Struck Off Employer.