Complainant

Respondent

Parties

Adrian  Doherty

Roadbridge Limited (In Liquidation)

Complainant

Respondent

Anonymised Parties

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Representatives

John Keane O'Brien Solicitors

 No Appearance

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-00055471-001

09/03/2023

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

CA-00055471-002

09/03/2023

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

CA-00055474-001

09/03/2023

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

CA-00055474-002

09/03/2023

The two Complaint Form was received by the Workplace Relation Commission on 9 March 2023.

The Complainant attend with his solicitor and swore an Affirmation.

It was the Complainant’s evidence that he commenced employment on 4 February 2008 with the Respondent. After initially working in Ireland he was seconded to the UK in November 2010 until his returned to Ireland on 8 November 2021. He continued to work with the Respondent until his employment was terminated by reason of redundancy on 28 April 2022.

There was no appearance by the Respondent.

CA-00055471-001- Redundancy Payment

The recent Labour Court decision in Walsh v Roadbridge Civil Engineering and Building Contractors, Roadbridge Limited, PRD239 relates to an identical set of circumstances.

Section 25 of the Redundancy Payment Acts 1967 provides:

“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 under the 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—

(a) he was in the State in accordance with the instructions of his employer on the date of 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.

(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, Section 19 set out how the lump sum is calculated.

“1. (1) The amount of the lump sum shall be equivalent to the aggregate of the following:

(a) the product of two weeks of the employee’s normal weekly remuneration and the number of years of continuous employment from the date on which the employee attained the age of 16 years with the employer by whom the employee was employed on the date of dismissal or by whom the employee was employed when the employee gave notice of intention to claim under section 12, and

(b) a sum equivalent to the employee’s normal weekly remuneration.

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.”

Applying the decision of the Labour Court wherein it was held;

“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.”

CA-00055471-002 – Minimum Notice

Again following the Labour Court’s decision in Walsh v Roadbridge Civil Engineering and Building Contractors, Roadbridge Limited, MND2310, I find that the Complainant is entitled to minimum notice.

Section 4 of the Minimum Notice and Terms of Employment Acts, 1973 to 2005 provides:-

4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

“(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.”

However, a complaint must be made to the Workplace Relations Commission within 6 months as per Section 41 (8) of the Workplace Relations Act 2015:-

“(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The Complaint Form was received on 9 March 2023 with the date of termination being 28  April 2023. It was submitted by the Complainant that the reason for the delay in submitting his complaint was due to the decision of the Department of Social Protection not assessing the payment within the 6 month period together with the delay in the Receiver not finalising the claim under the Insolvency Payment Scheme until 1 November 2022. I find there is reasonable cause for the delay in presenting this complaint to the WRC and extend the time accordingly.

Where the Complainant was in continuous employment from 2008 to 2022, he is entitled to six weeks minimum notice which amounts to the sum of €5,650.38.

CA-00055474-001- Decision of Dept of Social Protection

In light of decision underCA-00055471-002 I am allowing the Complainant’s appeal.

CA-00055474-002 - Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984

The decision  of the Minister was dated 21 February 2023.

In light of the decision made under CA-00055471-002, I declare that the Complainant is entitled to minimum notice of six weeks.

CA-00055471-001- Redundancy Payment

I find that the appeal under the Redundancy Payments Acts 1967 to 2007 succeeds and award the Complainant a redundancy lump sum based on the following:

Date of Commencement:                          4 February 2008

Date of Termination:                                   28 April 2022

Gross Weekly Pay:                                       €941.73

CA-00055471-002 – Minimum Notice

I find there was a contravention of the legislation. The Complainant is entitled to six weeks minimum notice which amounts to the sum of €5,650.38.

CA-00055474-001- Decision of Dept of Social Protection

In light of decision underCA-00055471-002 I am allowing the Complainant’s appeal.

CA-00055474-002 - Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984

I declare that the Complainant is entitled to minimum notice of six weeks.

Redundancy – Jurisdiction