ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00045538
Parties:
| Complainant | Respondent |
Parties | Patrick Gallagher | Windhoist Ireland Ltd. |
Representatives | In person | Alan McCarthy of Grant Thornton, Liquidator for Windhoist Ireland Ltd |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984. | CA-00056368-001 | 27/04/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00056368-002 | 27/04/2023 |
Date of Adjudication Hearing: 25/09/2023 - remote
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 - 2014following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
This complaint is one of redundancy where the Respondent is in liquidation and where an application to the Minister for Social Protection was refused in circumstances where the PRSI contributions in respect of the Complainant’s employment were less than 104 weeks. The Complainant is contesting this in circumstances where he worked a 6 weeks on/ 2 weeks off shift pattern but was unaware that during the 2 weeks that he was off work, that he and the Respondent did not make PRSI contributions for him.
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Summary of Complainant’s Case:
Under affirmation the Complainant said as follows: He worked as a wind turbine technician for the Respondent from August 2020 until 29 November 2022 at which time he was made redundant and the Respondent went into liquidation. He worked primarily in Sweden and Finland and towards the end of his employment, in Galway. His work pattern like all the other technicians was 6 weeks on and 2 weeks off. He was not made aware that his employer and he did not make contributions for him during the 2 weeks that he was off site. This decision was one that was solely taken by the Respondent. The Complainant was still an employee during the 2 weeks that he was off and he contends that the Respondent should have paid his PSRI contributions for these weeks or at least should have been advised that the contributions were not being made. He worked for 28 months (approximately 112 weeks) for the Respondent and given that he was made redundant he claims that he is entitled to a redundancy payment |
Summary of Respondent’s Case:
On behalf of the Liquidator, it was accepted that the Complainant was not advised by the Respondent that his PRSI contributions were not being paid for him by the Respondent in the 2 weeks that he was not working and the Liquidator accepts that the Respondent was under an obligation to make these contributions and or to advise the Complainant that these contributions were not being made. |
Findings and Conclusions:
Given that the non-payment of the PRSI contributions by the Respondent and Complainant occurred solely due to the unilateral action of the Respondent, I accept that the Complainant was not advised and not aware that this was occurring. It is my view that he should not have to bear the fault of this given that his employment lasted 112 weeks. I find that the fact that the contributions were not made for 104 weeks but should have been, was up to the Respondent to manage and the fact that they were not should not be borne by the Complainant. CA-00056368-001 I find that the Minister should treat the Complainant’s employment as if PRSI contributions were made for in excess of 104 weeks and find that the Complainant is entitled to a redundancy payment. CA-00056368-002 I find that the Complainant was made redundant and is entitled to a redundancy payment |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00056368-001 – I find this complaint to be well founded CA-00056368-002 – I find this complaint to be well founded subject to the statutory ceiling re weekly pay Complainant’s Commencement date: 1.8.2020 End date of Complainant’s employment: 29.11.22 Complainant’s Gross weekly pay: € 864
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Dated: 27th September 2023
Workplace Relations Commission Adjudication Officer: Emile Daly
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