Complainant

Respondent

Parties

Nicole  O' Connell

Outsource Enterprise Ltd Outsource Enterprise Ltd

Representatives

Breege O' Hora South Connaught

 John Whelan, Director

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00055640-002

22/03/2023

Both Complainants asked for the case to be heard jointly as they both have the same claim.  There was no objection from the Respondent so the claims were heard jointly. The case was held as a hybrid remotely and in person at the WRC offices.

The Respondent confirmed the company name should be Outsource Enterprises Ltd with an (s) and agreed to update same for WRC records and this was also agreed by the Complainants representative.

The Complaint forms were received by WRC on 22 March 2023 and employment ended 7 October 2021.

Ms Breege O’Hora, representative for the Complainants confirmed that the redundancy claim is withdrawn as it has now been paid, however, the notice has not yet been paid and that was the only claim now before the WRC. 

The Complainant, Ms Fiona O’Hara commenced employment as a Merchandiser with Outsource Enterprises Ltd on 29 April 2005 and ceased employment 7 October 2021 as a Merchandiser.

The Complainant, Mrs Nicole O’Connell commenced employment as a Merchandiser with Outsource Enterprises Ltd on 16 January 2008 and ceased employment on 7 October 2021.

Ms Breege O’Hora, the representative for both the complainants stated Fiona O’Hara, Complainant received an email informing her that Outsource Enterprises Ltd had lost the tender for the RTC Guide which was its only contract.  

She stated that on 7 October 2021 Ms O’Hara received an email stating that “Outsource Enterprises Ltd., would not be in a position to offer contract work in the future and it is most likely that Outsource Enterprises Ltd would cease trading”.  

Ms Breege O’Hora confirmed that Ms O’Hara issued an RP77 to Outsource Enterprises Ltd., on the 26 October 2021.  She confirmed that Outsource Enterprises Ltd., did not respond to RP77.

Ms Breege O’Hora stated a claim was submitted to the WRC in December, 2021.  She confirmed the remote hearing was scheduled for the 21 December 2022.

Ms Breege O’Hora stated on 7 December 2022, the Complainant, Ms O’Hara received correspondence from Outsource Enterprises Ltd., informing her that the company was struck off the Register of Companies.

She confirmed that on the day of the remote hearing the Adjudication Officer informed the Complainant that she was unable to go ahead with the hearing or make a decision on her case as the company was struck off the Register of Companies.

Ms O’Hora stated that Outsource Enterprises Ltd., was restored as a company by Mr. John Whelan in January 2023. She stated a new application to WRC was also submitted by the Complainant once the company was restored.   She stated that Mr. John Whelan Outsource Enterprises Ltd., submitted an application to Department of Social Protection Insolvency Fund.

Ms Breege O’Hora stated that Ms Fiona O’Hara, Complainant received payment of redundancy from the Department of Social Protection Insolvency Fund.

She stated that the Minimum notice is still outstanding:

Under the Minimum Notice & Terms of Employment Act, 1973 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. 

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

Ms Breege O’Hora stated based on this legalisation Fiona O’Hara, Complainant has an entitlement to eight weeks’ notice at the rate of €220.11 per week, as per Employment Detail summary 2021 amounting to €1760.88. 

Ms Breege O’Hora stated that Nicole O’Connell, Complainant received an email informing her that Outsource Enterprises Ltd had lost the tender for the RTC Guide which was its only contract.  

She stated that on the 7 October 2021 Mrs O’Connell received an email stating that “Outsource Enterprises Ltd., would not be in a position to offer contract work in the future and it is most likely that Outsource Enterprises Ltd would cease trading”. 

Ms Breege O’Hora confirmed that Mrs O’Connell issued an RP77 to Outsource Enterprises Ltd., on the 26 October 2021. She confirmed that that Outsource Enterprises Ltd., did not respond to RP77.

Ms Breege O’Hora stated a claim was submitted to WRC in December, 2021. She stated the remote hearing was scheduled for the 21 December 2022.

Ms Breege O’Hora stated on 7 December 2022, Mrs O’Connell received correspondence from Outsource Enterprises Ltd., informing her that the company was struck off the Register of Companies.

She confirmed that on the day of the remote hearing the Adjudication Officer informed the Complainant that she was unable to go ahead with the hearing or make a decision on her case as the company was struck off the Register of Companies.

Ms O’Hora stated that Outsource Enterprises Ltd., was restored as a company by Mr. John Whelan in January 2023. A new application to WRC was also submitted by the Complainant once the company was restored.   She stated that Mr. John Whelan Outsource Enterprises Ltd., submitted an application to Department of Social Protection Insolvency Fund.

Ms Breege O’Hora stated Mrs Nicole O’Connell received payment of redundancy from the Department of Social Protection Insolvency Fund.

She stated that the Minimum notice was still outstanding

Under the Minimum Notice & Terns of Employment Act, 1973 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. 

Ms Breege O’Hora stated based on this legalisation Nicole has an entitlement to six weeks’ notice at the rate of €271.20 per week amounting to €1627.20

John Whelan represented Outsource Enterprises Ltd.  He confirmed he agreed with Ms Breege O’Hora’s submission and said it was correct and factual.

Mr Whelan stated that he enabled the company Outsource Enterprises Ltd to be restored after the last hearing which cost him €300 + €150 but he took that cost to ensure it was restored. He stated the company made a loss of €24,000 approx.

Mr Whelan stated Outsource Enterprises Ltd is insolvent and he cannot pay his debts including the Complainant’s notice that is being claimed today.

Mr Whelan stated when the company lost the one contract they had and they financially couldn’t keep going after that so they couldn’t replace the contract.

Mr Whelan stated he accepts it was an error to close the company down as he did until the employee’s got redundancy so he restored it then.

Mr Whelan stated he couldn’t afford advice so he made that error.  He stated he fixed his error on understanding this. 

Mr Whelan stated Outsource Enterprises Ltd now owes the Social Protection Fund money paid to employees in Redundancy.  He stated there is no money available in the company.

In the first Instance I have to consider whether the Complainant’s claims under Section 12, Minimum Notice & Terms of Employment Act, 1973 can be proceeded with when it was not lodged with the WRC within the six-month time frame.

As an Adjudicator, I cannot hear any complaint referred to the WRC under Section 41 of the Workplace Relations Act of 2015 if it has been presented after the expiration of a six-month period beginning on the date of the contravention (as set out in Section 41(6) of the Act).

The Act (at Section 41(8)) does allow for an exception where I can extend that period to twelve months if a Complainant can demonstrate that that the failure to present the complaint within the first six-month period (after the contravention) was due to reasonable cause.

This claim is submitted outside of that 12-month timeframe as the Complaint forms were received by WRC on 22 March 2023 and employment ended 7 October 2021.  I empathise with the Complainants as their reason for the late claim is the company was struck off the CRO and since restored.

The complaint herein was brought out of time and I do not have jurisdiction to make a decision so the claim fails in that regard.