ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00036851
Parties:
| Complainant | Respondent |
Parties | Fiona O'Hara | Outsource Enterprises Limited |
Representatives | Breege O'Hora, Citizens Information Service | Self-represented |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00048132-001 | 13/01/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00048132-002 | 13/01/2022 |
Date of Adjudication Hearing: 21/12/2022
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with section 41 of the Workplace Relations Act 2015 and section 39 of the Redundancy Payments Acts 1967 - 2014, these complaints were assigned to me by the Director General. A hearing was scheduled for December 21st 2022, for me to enquire into the complaints and to give the parties an opportunity to be heard and to present evidence relevant to the complaints. The complainant, Ms Fiona O’Hara, was represented by Ms Breege O’Hora of the Citizens Information Service. A former employee of Outsource Enterprises, Ms Nicole O’Connell attended the hearing. Ms O’Connell also submitted complaints against this employer. Outsource Enterprises Limited was represented by a director of the company, Mr John Whelan.
While the parties are named in this decision, for the remainder of this document, I will refer to Ms O’Hara as “the complainant” and to Outsource Enterprises Limited as “the respondent.”
Background:
In October 2021, the respondent lost the contract to merchandise the RTE Guide. The complainant worked for the company as a merchandiser since April 29th 2005. This complaint is about the failure of the respondent to pay the complainant a redundancy lump and pay in lieu of notice. |
Summary of Complainant’s Case:
On October 7th 2021, the complainant was informed that, although the respondent had tendered for the contract to merchandise the RTE Guide, they had not been successful and the contract was awarded to another company. A company director, Ms Paula Whelan, wrote to the complainant informing her that her employment was terminated. However, the complainant was not made redundant, she was not paid in lieu of notice and she did not receive a redundancy payment. |
Summary of Respondent’s Case:
On Wednesday, December 7th, two weeks in advance of the hearing of this complaint, Mr Whelan wrote to the complainant’s representative, Ms O’Hora from the Citizens Information Service. He said that, in late 2021, when his company lost the contract to merchandise the RTE Guide, he could not continue to trade and he began the process of applying to the Companies Registration Office (CRO) to have his company struck of the Register of Companies. He said that due to a backlog at the CRO, the company was struck off the Register on December 5th 2022. Mr Whelan said that he had registered with Welfare Partners, a section of the Department of Employment and Social Protection, and that he intended to apply for a redundancy payment for the complainant. |
Findings and Conclusions:
I note with some concern the fact that, when the company closed down in early October 2021, the directors did not make the complainant redundant and did not ensure that she received her statutory entitlement to pay in lieu of notice. They did not respond to a formal claim for redundancy which the complainant sent to them on October 26th 2021. I note also that the company was struck off the Register of Companies on December 5th 2022. It is apparent that this was on foot of a voluntary strike-off, and I am concerned about the fact that the application for strike-off was submitted by the directors in circumstances in which the complainant had initiated proceedings at the WRC under the Redundancy Payments Act 1967 and the Minimum Notice and Terms of Employment Act 1973. One of the conditions for applying for a voluntary strike-off is that a company must not be a party to ongoing or pending litigation. At the hearing, Mr Whelan said that he was committed to working with Ms O’Hora to apply to the Department of Social Protection’s insolvency fund for a redundancy payment and for pay in lieu of notice for the complainant. As the company is dissolved and has ceased to have legal existence, I have no authority to issue a decision in this regard; however, I am confident that the directors will co-operate with Ms O’Hora in the Citizens Information Service to ensure that the complainant receives the payments to which she is entitled. |
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 under the Acts.
A dissolved company ceases to have legal existence and therefore cannot be a respondent to proceedings under employment legislation. For this reason, I can make no further enquiries and I rely on the directors of the company to comply with their obligations under the Redundancy Payments Acts 1967 and the Minimum Notice Act 1973 in respect of these complaints. |
Dated: 10/01/2023
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Company struck off the Register of Companies |