Complainant

Respondent

Parties

Michael  Dolan

Roadbridge Civil Engineering & Engineering Contracts t/a Roadbridge Ltd.,

Representatives

SIPTU

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-00052169-001

09/08/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00052169-002

09/08/2022

This complaint arises under the Redundancy Payment Act, 1967 and the Minimum Notice & Terms of Employment Act, 1973 and, in respect of the first complaint, is a claim for the application of Irish legal entitlement to the complainant.

This is one of a number of identical complaints made on behalf of a group of workers, who had been employed by Roadbridge Civil Engineering & Building ContractorsbasedinIrelandforseveralyears.

In recent years the employer transferred these workers to their UK site.

The company went into receivership and these workers were then made redundant without notice on 28th April 2022 and were paid the statutory entitlement under the UK legislation.

However, each worker had worked in Ireland for longer than the years worked in the UK and the complainant is seeking to have the balance of the statutory entitlement paid to that of the Irish legislation.

In the UK, to gain a statutory entitlement an employee must have more than two years’ service and entitlement is calculated as follows:

•       Half a week’s pay for each full year you were under age 22

•       One week’s pay for each year were 22 or older, but under age 41

•       One and half weeks’ pay for each full year you were 41 or older.

Length of service is capped at twenty years.

Regarding employment wholly or partly abroad, Section 25 of the Redundancy Payments Acts, 1967 is as follows.

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, FS8[the employee was insurable for all benefits under the Social Welfare (Consolidation) Act 1993 or 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-

(a)             hewasintheStateinaccordancewiththeinstructionsofhisemployeronthedateof dismissal, or

(b)             he had not been afforded a reasonable opportunity by his employer of being in the State on that date.

(2A) An employee who under a contract of employment has worked outside the State and was working in the State for at least two years immediately prior to the date of termination of the employment concerned shall be entitled to redundancy payment in respect of all his employment with the employer concerned. (Emphasis added)

(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.

We are relying on the above sections of the Act but in particular Section 25(2)(a) as the complainant and other members were paying PRSI in Ireland immediately before they commenced in UK.

Their employer is an employer within this State and on the date of their dismissal they were not afforded a reasonable opportunity of being in Ireland due to the employer going into Receivership.

Based on the intent of the above legislation we are seeking the balance of redundancy payment for the complainant as set out in the evidence.

The complainant also seeks payment under the Minimum Notice and Terms of Employment Act based on the service set out and he is entitled to eight weeks’ pay in lieu of notice.

The complainant gave evidence on affirmation.

He provided evidence of the following details of his employment.

His employment with the company began on January 187h 2005 and he was transferred to the UK on March 25th, 2021. He was given notice of the termination of employment in March 2022 and his employment concluded on April 28th, 2022.

His total service was seventeen years and three months of which twelve months were spent in the UK. He paid PRSI in Ireland up to eleven months before his redundancy and was then transferred to UK PRSI.

He received UK£13,989.00 equivalent to € 15,424.38 and as he would have been eligible to receive €21,300.00 in this jurisdiction this fell short of the entitlement in Ireland by €5,875.62.

The respondent did not attend the hearing or provide any explanation for its failure to do so.  I am satisfied that it was properly notified of the hearing to its registered business address.

While this may be seen as an unusual situation in which a worker has been made redundant while working abroad it is not so unusual in that provision for what is to happen in such circumstances has been made in the relevant legislation; the Redundancy Payments Acts, specifically at section 25(2) (a) which is reproduced again for the convenience of the reader.

(2A) An employee who under a contract of employment has worked outside the State and was working in the State for at least two years immediately prior to the date of termination of the employment concerned shall be entitled to redundancy payment in respect of all his employment with the employer concerned.

The sections following this (cited above in the submission by the complainant) make further provision in deeming service with the employer outside the state to have been service in the employer within the state (section25 (3) and specifically provides for account to be taken of any payment in respect of redundancy already received.

The complainant gave evidence on affirmation in respect of the details of his employment both in Ireland and the UK and despite the failure of the respondent to attend I found the evidence to be credible and persuasive. I therefore uphold the complaints.

The complaint under the Minimum Notice & Terms of Employment Act, 1973 is also well-founded and my award in that regard is below.  Based on the service set out he is entitled to      eight weeks’ pay in lieu of notice.

For the reasons set out above the redundancy payment made to the complainant falls short of his entitlement under Irish law by €5875.62 and therefore I uphold complaint CA-00052169-001 and award him a redundancy payment in that amount in accordance with the provisions of Section 25 of the Redundancy Payments Act, 1967.

On the basis of the evidence of his service I also uphold complaint CA-00052169-002 and award him a payment under the Minimum Notice & Terms of Employment Act, 1973 of eight weeks’ wages.

Redundancy; UK differential.