FULL RECOMMENDATION
REDUNDANCY PAYMENTS ACTS, 1967 TO 2014 PARTIES: ROADBRIDGE CIVIL ENGINEERING & BUILDING CONTRACTORS ROADBRIDGE LTD - AND - JAMES CUFFE (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION:
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s) ADJ-00039895 CA-00052161-001. DETERMINATION: Mr. Cuffe, ‘the Complainant’ worked for Roadbridge Ltd., ‘the Respondent’ since 2011. The company went into receivership and Mr. Cuffe was made redundant on 28 April 2022. On 27 August 2020, the Complainant had been transferred to the UK. He was paid statutory redundancy under UK legislation. This amounted to less than his entitlement under the Redundancy Payments Act 1967, ‘the Act’ applicable in this jurisdiction. The Complainant lodged a complaint under the Act seeking payment of the balance. The Complainant failed to attend at the Workplace Relations Commission, ‘WRC’, hearing and the case was decided by an Adjudication Officer, ‘AO’, not to be well founded. The requisite €300 was lodged with this Court with an appeal. There was no representative of the Respondent or the Receiver present at the Court hearing. The Court is satisfied that adequate attempts were made to ensure that the Respondent was aware of the hearing. Summary of Complainant arguments. The Complainant commenced working for the Respondent on 3 October 2011. He was transferred to work on a UK site on 27 August 2020. The company went into receivership and the Complainant was made redundant without notice on 28 April 2022. He was paid statutory redundancy under UK law of £5440, (€6,366.03), in respect of his entire service of 10 years and 6 months with the Respondent, of which only 20 months was in the UK. If he had been paid his full entitlement under the Act, he would have received €13,200.. He paid PRSI in Ireland until his transfer to the UK. Under s.25(2)(b) of the Act, the Complainant is entitled to payment under the Act if he had paid PRSI in this State up to the transfer and was not afforded a reasonable opportunity by his employer of being in the State on the date of his redundancy. He was denied this opportunity due to the Respondent going into receivership. S. 25(4) of the Act allows for payment of a balance due on top of any redundancy payment received in another State, in which an employee was working. Other colleagues have been successful in arguing before the WRC that the relevant balance is payable. All employees of the Respondent who transferred to associated companies abroad were assured that they would be treated the same as their colleagues in Ireland, all of whom will be paid in accordance with the Act. The applicable law. Redundancy Payments Act. Employment wholly or partly abroad. 25.—(1) An employee shall not be entitled to redundancy payment if on the date of dismissal he is outside the State, unless under his contract of employment he ordinarily worked in the State. (2) Notwithstanding subsection (1), an employee who under his contract of employment ordinarily works outside the State shall not be entitled to redundancy payment unless, immediately before he commenced to work outside the State, the employee was insurable for all benefits underthe Social Welfare (Consolidation) Act 1993or would have been insurable for all such benefits but for the fact that the employment concerned was an excepted employment by virtue of paragraph 2, 4 or 5 of Part II of the First Schedule to that Act and the employee was in the employment of the employer concerned and unless—
(3) In computing, for the purposes of this Act, for what period of service a person was in continuous employment, any period of service in the employment of the employer concerned while the employee was outside the State shall be deemed to have been service in the employment of that employer within the State. (4) Where an employee who has worked for his employer outside the State becomes entitled to redundancy payment under this Act, the employer in making any lump sum payment due to the employee under section 19 shall be entitled to deduct from that payment any redundancy payment to which that employee may have been entitled under a statutory scheme relating to redundancy in the State in which he was working. Schedule 3. Amount of Lump Sum 1. (1) The amount of the lump sum shall be equivalent to the aggregate of the following:
2. If the total amount of reckonable service is not an exact number of years, the “excess” days shall be credited as a proportion of a year. Deliberation. Employees of the Respondent were assured in writing by the Respondent as follows; ‘For the avoidance of doubt all entitlement enjoyed by Roadbridge employees in Ireland will be exactly the same as employees who transfer to international Companies’. As this formed the basis on which such employees transferred, it formed a part of their contract with the Respondent. It was, therefore, incumbent on their employer to take whatever steps were necessary to ensure that this undertaking was met. The Respondent could have, and should have, ensured that the Complainant was covered by the provision of s.25(2) (a) by instructing him to be in the State on the date of dismissal. By failing to do so, the Court concurs with the argument made by the Union on behalf of the Complainant that he was not afforded a reasonable opportunity by his employer of being in the State on that date. Therefore, the provisions of s.25(2)(b) above are applicable to the Complainant and his appeal must succeed. As an amount of €13,200 is payable to the Complainant under the terms of the Act and as he has received an amount of €6,366.03, he is entitled, in accordance with s. 25(4) as set out above, to be paid a balance of €6,833.97 and the Court determines that this amount is payable to him, subject to any necessary re calculation due to currency fluctuation. Determination. The Decision of the Adjudication Officer is set aside.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |
