ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00038859

Parties:

	Complainant	Respondent
Parties	Anton Gremin	Avia Capital Leasing Limited

Representatives

Complaint(s):

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-00050145-002	02/05/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00050145-005	23/09/2022

Date of Adjudication Hearing: 30/03/2023

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following 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.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021, the Parties were informed in advance that the Hearing would be in Public, that 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 were explained to all.

The Respondent did not attend the hearing. The Respondent had applied for a postponement of the hearing on 24 March 2023, which was refused by the WRC. The Respondent was informed of this by letter from the WRC dated 24 March 2023. I am satisfied the Respondent was on notice of the hearing.

Background:

The Complainant commenced employment with the Respondent on 12 May 2017 as a Technical Manager. He worked 37.5 hours per week and was paid €5,985.40 gross per month. The Complainant’s employment ended on 26 April 2022. Two complaint forms were received by the WRC from the Complainant the first on 2 May 2022 and the second on 23 September 2022.

Summary of Complainant’s Case:

The Complainant gave evidence on Affirmation.

The Complainant stated that there had been some discussion in the company about changes that might take place in relation to the status of the employees in April 2022. In a letter to the Complainant dated 25 April 2022, he was informed by the Respondent that the company had decided to terminate his employment from 26 April 2022. The letter stated that the termination of employment was due to circumstances outside the company’s control, namely:

“1) EU Council Implementing Regulation (EU) 2022/581 of 8 April 2022 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, amending council Regulation (EU) 833/2014 (as amended, supplemented and restated) have been adapted and came to force (Regulation). In relation to the Company and ACLCL Group the Regulation means that the Company and the ACLCL Group is under the freezing sanctions of the EU and all operations, assets and funds are subject to freeze, as both shareholders – VTB and GTLK have been added in the list of designated persons (cumulative state over 50%);

2) the Company is unable to make salary and other payments to employees. The Company has been attempting to perform the payments of salary since February 24, 2022 and these have not been processed by VTB Bank (Europe) SE with which the Company has bank accounts due to sanctions and geopolitical situation and insufficient liquidity of funds, none of the applications of the Company made through the operation of VTB Bank (Europe) SE who have been approved by BaFin (Federal Financial Supervisory Authority), Germany, who have been monitoring the operations of VTB Bank (Europe) SE since the captioned date;

3) it is prohibited for persons and entities to provide any economic benefit for the Company and the Company is deprived of economic resources and income to pursue business activities following the adoption of the Regulation.”

The Complainant stated that the Company closed completely on 26 April 2022. There was no further communication from the Respondent after the letter of 25 April 2022.

In relation to the Payment of Wages complaint, the Complainant stated that he had not been paid his salary for March and April 2022. When the Complainant checked the situation with Revenue, he was told the Respondent had paid his taxes for the period. The gross loss being €11,970.80.

A witness for the Complainant, Ms S, who had been a Senior Financial Manager for the Respondent, gave evidence on Affirmation. She stated that everything the Complainant had said in evidence was true. The staff had attempted to meet with the Director of the Company in Ireland, but scheduled meetings were cancelled and then the management left.

The Complainant stated that he had taken up employment elsewhere on 1 July 2022, a contract basis, on similar terms and conditions to those he had enjoyed with the Respondent. This position was later made permanent.

Summary of Respondent’s Case:

The Respondent did not attend the hearing.

CA-00050145-002 Complaint under Section 8 of the Unfair Dismissals Act, 1977.

Findings and Conclusions:

Section 6 of the Unfair Dismissals Act, 1977, states:

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

Section 7(2) The Redundancy Payments Act, 1967, highlights a number of various situations where redundancy arises including:

a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed,

Section 6 of the Redundancy Payments Act, 1967, defines “cease” as;

“cease” means cease either temporarily or permanently and from whatever cause;

Having considered the evidence adduced at the hearing, in particular the letter of 25 April 2022 to the Complainant, I find that the termination of employment of the Complainant in this instant case is not an Unfair Dismissal, rather it falls within the definition of a redundancy.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

The Complainant was not unfairly dismissed.

CA-00050145-005 Complaint under Section 6 of the Payment of Wages Act, 1991.

Findings and Conclusions:

Section 5 of The Payment of Wages Act 1991 states;

(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless –

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) The deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) In the case of a deduction, the employee has given his prior consent in writing to it.

The deductions which are the subject of this complaint are clearly not required by statute, did not constitute a term of contract nor were they given by prior consent. I believe the evidence of the Complainant in this matter.

Decision:

The complaint is well founded and direct the respondent to pay the complainant the sum of €11,970.80.

Dated: 18/August/2023

Workplace Relations Commission Adjudication Officer: Roger McGrath

Key Words:

Cessation of business, closure.