ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00045682
Parties:
| Complainant | Respondent |
Parties | Anton Gremin | Avia Capital Leasing Limited |
Representatives |
| Mr Stanislav Dobshevich |
Complaint(s):
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-00056493-001 | 16/09/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00056493-002 | 16/09/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00056493-003 | 16/09/2022 |
Date of Adjudication Hearing: 30/11/2023
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014, following 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.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021, the Parties were informed in advance that the Hearing would be in Public, that testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all.
The matter was heard by way of remote hearing on 30 November 2023, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
Background:
The Complainant commenced employment with the Respondent on 12 May 2017 as a Technical Manager. He worked 37.5 hours per week and was paid €5,985.40 gross per month. The Complainant’s employment ended on 26 April 2022. The Respondent is a Russian aircraft leasing company.
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CA-00056493-001 Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967
Summary of Complainant’s Case:
The Complainant gave evidence on Affirmation. The Complainant stated that there had been some discussion in the company about changes that might take place in relation to the status of the employees in April 2022. In a letter to the Complainant dated 25 April 2022, he was informed by the Respondent that the company had decided to terminate his employment from 26 April 2022. The letter stated that the termination of employment was due to circumstances outside the company’s control, namely: “1) EU Council Implementing Regulation (EU) 2022/581 of 8 April 2022 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, amending council Regulation (EU) 833/2014 (as amended, supplemented and restated) have been adapted and came to force (Regulation). In relation to the Company and ACLCL Group the Regulation means that the Company and the ACLCL Group is under the freezing sanctions of the EU and all operations, assets and funds are subject to freeze, as both shareholders – VTB and GTLK have been added in the list of designated persons (cumulative state over 50%); 2) the Company is unable to make salary and other payments to employees. The Company has been attempting to perform the payments of salary since February 24, 2022 and these have not been processed by VTB Bank (Europe) SE with which the Company has bank accounts due to sanctions and geopolitical situation and insufficient liquidity of funds, none of the applications of the Company made through the operation of VTB Bank (Europe) SE who have been approved by BaFin (Federal Financial Supervisory Authority), Germany, who have been monitoring the operations of VTB Bank (Europe) SE since the captioned date; 3) it is prohibited for persons and entities to provide any economic benefit for the Company and the Company is deprived of economic resources and income to pursue business activities following the adoption of the Regulation.” The Complainant stated that the Company closed completely on 26 April 2022. There was no further communication from the Respondent after the letter of 25 April 2022. |
Summary of Respondent’s Case:
The Respondent provided a written submission. The Respondent submits that it is willing to pay the Complainant the requested amount but has been unable to do so due to the absence of bank accounts in Ireland, EU and US due to sanctions, and the measures taken by the Federal Financial Supervisory Authority, Germany, where the accounts of the Respondent have been maintained. The Respondent submits that it approached the Irish Central Bank for a licence to arrange the payment for the legal services associated with the ongoing WRC proceedings. The Central Bank of Ireland denied the Respondent’s request on the ground that the Respondent does not have any financial resources in Ireland. Therefore, the Respondent submits, despite the genuine desire to compensate its former employees for the termination of employment, the Respondent is simply stuck in a situation of being left without any financial resources and no way to pay at this stage.
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Findings and Conclusions:
This is an unfortunate situation where the Complainant is one of a number of employees of the Respondent company left “high and dry” due to the sanctions imposed on Russian entities following the Russian government’s decision to launch a war against Ukraine. In the circumstances I find the Complainant was made redundant but did not receive a redundancy payment from his former employer, the Respondent. I find the Respondent is unable to pay a redundancy lump sum. |
Decision:
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Accordingly, the claim under the Redundancy Payments Acts 1967 to 2007 is allowed and the Complainant is awarded a statutory lump sum under those Acts, and based on the following: Date of Commencement; 12 May 2017 Date of Termination; 26 April 2022 Gross weekly pay; € 1,496 The award is made subject to the appellant having been in insurable employment under the Social Welfare Acts during the relevant period. |
CA-00056493-002 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
This complaint was withdrawn by the Complainant at the outset of the hearing.
CA-00056493-003 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Summary of Complainant’s Case:
The Complainant stated that he had not received his statutory notice entitlements. |
Summary of Respondent’s Case:
The Respondent had nothing to say on this matter. |
Findings and Conclusions:
Having the considered the evidence adduced I find the Complainant was not given notice nor was he paid in lieu of notice. As per his service he is statutorily entitled to two weeks’ pay in lieu of notice. |
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.
The complaint is well founded, and I direct the Respondent to pay the Complainant two week’s pay, i.e. €2,992. |
Dated: 05/04/2024
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Redundancy, ability to pay, notice entitlements |