Complainant

Respondent

Parties

John  Walsh

Minister for Social Protection

Complainant

Respondent

 Parties

John Walsh

Minister for Social Protection

Representatives

  self

Chief State Solicitors Office /Cathy Maguire BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00054073-001

08/04/2022

The Complainant brought several complaints against Roadbridge Limited a company in receivership.

The Complainant worked for the Roadbridge Group and had worked in Ireland and more recently for the Company in the UK. At the time of his posting to the UK he was provided with a written assurance that in the event of being made redundant he would be treated as if he had continued his service with Group in Ireland. Unfortunately, the Group experienced very significant trading difficulties and is now in receivership. The Complainant was made redundant in the UK and received statutory benefit based on his UK entitlements. This has left a shortfall as his previous service with the Group in Ireland has not been included in the calculation of his benefits.

The Complainant a lay litigant has ticked boxes that he believed captured the essence of what he believed his grievance to be. He ticked claims relating to a Transfer of Undertakings and not being provided with information on his Terms and Conditions of Employment. They are misconceived as the complaint is about a shortfall in redundancy benefit.

The narrative of the Complaint was about a guarantee given to him by his Employer that he would not lose his statutory redundancy benefits by being posted in the UK having regard to his long service with the parent in Ireland. The Respondent did not appear at the hearing and in these circumstances the tribunal wrote to the relevant department as follows:

Dear Minister,

As part of my investigation into the complaint I am requesting that an official from your department attend a reconvened hearing regarding:

DIRECTIVE 2008/94/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 22 October 2008 on the protection of employees in the event of the insolvency of their employer

(Codified version)

SCOPE AND DEFINITIONS

Article 1

1.   This Directive shall apply to employees’ claims arising from contracts of employment or employment relationships and existing against employers who are in a state of insolvency within the meaning of Article 2(1).

2.   Member States may, by way of exception, exclude claims by certain categories of employee from the scope of this Directive, by virtue of the existence of other forms of guarantee if it is established that these offer the persons concerned a degree of protection equivalent to that resulting from this Directive.

3.   Where such provision already applies in their national legislation, Member States may continue to exclude from the scope of this Directive:

(a) domestic servants employed by a natural person;

(b) share-fishermen.

The matter relates to 1 of Article 1 and the employee’s claim arising from contracts of employment against employers who are in a state of insolvency.

The above Complainant worked for the above Employer in United Kingdom and in Ireland for the duration of his employment with the Group.

He has a contractual agreement with his employer which stated that his service would not be affected arising from his transfer to the UK and that Irish Law would govern his contract of employment.

I have asked that the file be forwarded to your office so that the full facts are reviewed by an official.

The Complainant is a lay litigant and if you review the narrative of the complaint form it concerns a contractual agreement between him and his employer that his service would not be negatively impacted by his transfer to the UK.

However, he alleges that in fact that is what has occurred as he was deemed not to be entitled to statutory redundancy for the period that he worked in Ireland. He states that he has incurred very significant benefit loss arising from this decision. His entitlement to redundancy was made under UK law and the period of entitlement therefore is less than his service with the parent employer. He sees this as a loss and claims compensation. While he has listed Acts (Transfer of Undertaking & Terms of Employment) to bring his complaint on the facts, they do not seem to be relevant in this case.

However, the Protection of Employees (Employers’ Insolvency) Act 1984 as amended maybe relevant.

The Employer appears to be insolvent, and a Receiver has been appointed to the Group.

Yours sincerely,

At the hearing held in May information provided to the tribunal and confirmed by the Complainant affirmed that he had also lodged a redundancy complaint based on the same facts brought under the Redundancy Act. That complaint was made on his behalf by SIPTU, and the matter was adjudicated on. This means that the complaints before me are res judicata as essentially what the Complainant is looking for, he already has had determined by another Adjudicator; although, the heads of claim are different, they relate to exactly the same facts and the narrative of the complaint form is about a shortfall in statutory redundancy benefit.

The Complainant at the hearing accepted that he had not applied to the Minister for any benefit under the Act.

No claim was made by the Complainant to the Minister and therefore the matter cannot be adjudicated upon.

I have determined that I have no jurisdiction to hear the matter.

The matter is not properly before me, and I have no jurisdiction to hear it as it has never been referred to the Minister in the first instance.

No Jurisdiction.