Complainant

Respondent

Parties

Aaron  Healy

Zulleon Ltd (In Liquidation)

Representatives

Niall Donnelly Grant Thornton

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00053213-001

11/10/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00055160-001

17/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00055160-002

17/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00055160-003

17/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00055160-004

17/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00053213-002

11/10/2022

The complainant commenced employment with the respondent on 05/11/2018 as a producer.  The respondent operated a gaming and app publishing business.  The complainant was informed on 07/09/2022 that he should seek other work.  He was not paid any notice pay or paid for outstanding annual leave.  The complainant was not paid any redundancy pay despite many assurances by the respondent that he would.  He was paid €4,166.00 gross per fortnight and worked a 40-hour week.

The complainant gave evidence that he worked for the respondent since 05/11/2018 in a role that he enjoyed and was enthusiastic about.  He always gave of his best and done everything he could to assist the business.  He was informed on 07/09/2022 that he was being made redundant and that this would be effective from 31/08/2022.  Prior to this he spent many weeks seeking clarification in relation to the company’s position as he was aware that they were seeking new investors.

The complainant did not receive his pay on time and one of the directors paid the complainant from his personal account.  On another occasion the complainant paid the software licences for a period of three months in order to keep the company in credit with the apps that were essential to their business.  The complainant provided a number of e mails from the respondent in which he was reassured that he would be paid and that he would be paid his redundancy “in a few weeks” or “soon”.   The complainant became concerned at the lack of responses from the respondent.  The complainant continued to assist when requested in order to keep matters going until a buyer was found.  The complainant also assisted in preparing a list of assets for the liquidator.   He never received his holiday pay, pay in lieu of notice or redundancy.  Despite this he was contacted recently by the liquidators to provide assistance to them.  Again, no money was paid to the complainant.  On another occasion the complainant was asked if he would assist as a contractor in maintaining the IP products for a period of 6 months and that payment for this would be made in advance as part of his redundancy package.  He was instructed not to seek legal advice or third-party assistance.  This did not develop and when the complainant lodged a complaint with the WRC. The complainant submits that this was a contributory factor in the decision by the respondent to liquidate the company.  The complainant subsequently attended a creditors meeting and discovered that the respondent had not been paying Tax, VAT and PARY to revenue.  The complainant assisted one of the directors in compiling the list of IP assets for the liquidators.

The complainant believes that he was continually strung along and given false hope of receiving the payments due to him.

The complainant was told by the respondent’s acting Managing Director in a group e mail on 07/09/2022: 

“It is with regret, but I hope for a new future that I want to make official the conversations we had in August.  To confirm that you were made redundant from Zulleon as per 31st August and should therefore actively look for new employment. 

As a result, you will receive all entitlements due, and these will be calculated accurately by Colin and appropriately paid.

 I will be in contact for work related to the future by which it is my hope we will be able to bring Zulleon IP back to life”.

The complainant submits that this was a dismissal and that the manner in which this occurred was “a departure from all reasonable standards”.  In particular the complainant submits that the respondent denied him the right to fair procedures as outlined in the Unfair Dismissal Acts and at no stage did the respondent act reasonably.  The complainant further submits that “disrespectful and incoherent manner in how they communicated with me (or lack of communication) and the months of back and forth from September 2022 to February 2023” fell well short of what a reasonable and respectful employer should do”.

The complainant also gave evidence of the effects of this on him.  The entire matter was compounded by the fact that three of colleagues were made redundant before him and were paid.  The complainant emphasised that he was the person who stayed on to assist in keeping the various apps up and running and developing a new product in advance of the deadline.  He done everything he could to assist, and the result was the directors who previously told him he was like family then treated him in a most appalling and disrespectful manner.  The complainant also submitted that the failure of the respondents or their representative or the liquidators to attend the WRC hearing was a further manifestation of the manner in which they treated him.  The complaint submitted that he lodged his complaint with the WRC on 11/10/2022 and he believes that this was a contributing factor in the respondent’s decision to pursue a voluntary winding up of the company.

The complainant also gave evidence that he did not receive any notice pay or any payment for the 19 days annual leave that he had accrued.

In response to a question from the Adjudicator the complainant confirmed that it was his understanding that his former colleagues received their redundancy payments.  The complainant also confirmed that the redundancy package offered and promised to him was statutory redundancy along with payment in lieu of notice and payment for his 19 days outstanding annual leave.

The complainant subsequently advised the WRC that he was contacted by the liquidators after the hearing seeking confirmation of his details and entitlements.

The respondent or the Liquidators did not attend the hearing.  The respondent was notified by registered post of the date, time and location of the hearing and subsequent correspondence from the liquidators indicate that they were also aware of the hearing.

CA-00053213-001: This is a complaint seeking adjudication by the Workplace Relations Commission (WRC) under Section 39 of the Redundancy payments Act, 1967.

The Redundancy Payment Act 1967 Section 7(1) give a general right to redundancy:  “An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided –

(a)   He has been employed for the requisite period, and

(b)   He was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966 immediately before the date of the termination of his employment which was so insurable in the period of two years ending on that date.”

I have carefully considered and reviewed the documents, submissions and evidence provided at the hearing.  It is clear that the respondent made a number of employees redundant and kept the complainant in employment to assist in its efforts to secure investment and when that failed, he was advised that he would be made redundant and given an undertaking that he would receive his redundancy and all other outstanding payments.  

The respondent’s Finance Manager, in an e mail dated 15/09/2022 to the respondent and copied to the acting Managing Director, its owners and its legal representative, confirmed to the complainant that he is entitled to a redundancy lump sum. 

The respondent failed to make any payments to the complainant and it is clear that they took complete advantage of his allegiance, dedication and significant contribution that he delivered to the respondent.  The respondent’s breach of trust, and breach of promise to the complainant can only be described as one of the most egregious examples of such conduct.  The context of the respondent’s behaviour must also be examined in their description the complainant as “essential” to any potential investment or sale of the company.

The complainant’s is entitlement to a redundancy lump sum payment is to be calculated according to the following criteria:

Employment start date:  05/11/2018.

Employment end date: 14/09/2022

Gross weekly remuneration:  €2,083

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.  I order the respondent to make this payment within six weeks of the date of this decision.

CA-00052213-002:  This is a complaint seeking adjudication by the WRC under Section 8 of the Unfair Dismissals Act, 1977. The complainant submitted this complaint in the alternative to complaint CA-00053213-001.  As that complaint held to be well founded, I cannot progress this complaint in and I find it to be not well founded.

CA-00055160-001:  The complainant confirmed at the hearing that this is a duplicate of complaint CA-00053213-001 which arose from his submission of an updated complaint form, and it was withdrawn at the hearing.

CA-00055160-002:   This is a complaint seeking adjudication by the WRC under section 27 of the Organisation of Working Time Act, 1997. 

The complainant stated that he did not receive payment for 19 days annual leave accrued but not taken on the date of termination of employment. The respondent did not make any submission to the WRC.  The complainant submitted an e mail he received on 15/09/2022 from the respondent’s Finance Manager (CK) stating that, in addition to his redundancy payment he was also due €4,395.73 for 19 days annual leave.  This e mail was also copied to the respondent’s acting Managing Director and the respondent’s legal representative.

Section 19(1) of the Organisation of Working Time Act 1997 (“the 1997 Act”) provides:

“. . . an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to— (a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment), (b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or (c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks)”.  

Section 23(1)(a) of the 1997 Act provides:

“Where— (i) an employee ceases to be employed, and (ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.”

The respondent’s Finance Manager has confirmed the complainant’s entitlement to be paid for the outstanding leave and therefore this complaint is not in dispute.

I find that this complaint is well-founded, and that the complainant is entitled to payment of €4,395.73 in respect of accrued annual leave entitlements on the cessation of his employment.  The Act also provides that an adjudication officer “who issues a decision under section 41 of the Workplace Relations Act 2015 in relation to a contravention of a relevant provision shall do one or more of the following, namely:

(a)   Declare that the complaint was or, as the case may be not well founded,

(b)   Require the employer to comply with the relevant provision,

(c)   Require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee’s employment”.

I order the respondent to pay the complaint the sum of €4,396.73 and I also order the respondent to pay the complainant compensation in the amount of €2,500 for this breach of the Organisation of Working Time Act. These sums are to be paid within six weeks of the date of this decision.

CA-00055160-003:  This is a complaint seeking adjudication by the WRC under Section 6 of the Payment of Wages Act, 1991.  The complainant submitted that he did not receive any payment in lieu of notice when his employment ended.  He should have received two weeks’ notice.  I note that the respondent’s Finance Manager (CK) confirmed to the complainant on 15/09/2020 that he was entitled to receive two weeks’ notice pay.  The complainant gave evidence at the hearing that he did not receive this payment.  I accept the respondent’s e mail as evidence that it accepts that the complainant is entitled to notice pa of two weeks.  I also note that this e mail was also copied to the respondent’s acting Managing Director and the respondent’s legal representative. I find that this complaint is well founded, and   I order the respondent to pay the complainant the sum of €4,166.00 and this payment to be made within six weeks of the date of this decision.

CA-00055160-004:  This is a duplicate complaint of CA-00053213-002 and was withdrawn at the hearing.

CA-00053213-001:  I find that the complainant’s is entitled to a redundancy lump sum payment which is to be calculated according to the following criteria:

Employment start date:  05/11/2018.

Employment end date: 14/09/2022

Gross weekly remuneration:  €2,083

This award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.  I order the respondent to make this payment within six weeks of the date of this decision.

CA-00052213-002: I find this complaint to be not well founded.

CA-00055160-001: This complaint was withdrawn at the hearing.

CA-00055160-002: I find this complaint to be well founded and I order the respondent to pay the complaint the sum of €4,396.73 and I also order the respondent to pay the complainant compensation in the amount of €2,500 for this breach of the Organisation of Working Time Act. These sums are to be paid within six weeks of the date of this decision.

CA-00055160-003:  This is a complaint seeking adjudication by the WRC under Section 6 of the Payment of Wages Act, 1991

CA-00055160-003: I find that this complaint to be well founded, and I order the respondent to pay the complainant the sum of €4,166.00 and this payment to be made within six weeks of the date of this decision.

CA-00055160-004: This complaint was withdrawn at the hearing.

Redundancy not paid.  Payment in lieu.  Annual leave payment.