ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037387
Parties:
| Complainant | Respondent |
Parties | Declan Griffin | Amerocon Ltd. (In Liquidation). |
| Complainant | Respondent |
Representatives | Self-represented | O'Connor Pyne & Co Limited. Liquidator. |
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-00048331-001 | 24/01/2022 |
Date of Adjudication Hearing: 20/02/2023
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Procedure:
In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. On this date I conducted a hybrid hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings. The complainant attended in person; the respondent attended remotely.
I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021. The parties agreed to proceed in the knowledge that hearings are to be conducted in public, decisions issuing from the WRC will disclose the parties’ identities and sworn evidence may be required.
I gave the parties an opportunity to be heard, to present evidence and to cross examine on evidence relevant to the complaint.
The complainant represented himself and gave evidence under affirmation.
The appointed Liquidator attended. They confirmed that they were acting on behalf of the respondent by email dated 10/11/2022.
Background:
The complainant is seeking a redundancy payment in accordance with the provisions of the Act. He commenced work with the respondent on 1/9/1996 and worked as a manager in the respondent newsagent until he was made redundant on the 28/11/2018. He worked 40 hours a week and was paid a gross weekly wage of €590. He lodged his complaint with the WRC on 24/1/2022.
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Preliminary Issues
First Preliminary point Time limits.
I advised the complainant of the statutory time limits which apply to the submission of this complaint. This complaint was submitted to the WRC on 24/1/2022. The complainant was made redundant on 28/11/2022. Section 24 of the Act (as amended) requires a complainant to submit his complaint within 52 weeks, or at the outside, within 104 weeks of being made redundant.
Second preliminary point Eligibility for redundancy payments.
I advised the complainant of the eligibility requirements set out in section 4 of the Act of 1967 (as amended). The complainant held a 50% share as a director in the company and paid class S1 PRSI contributions. Section 4 of the Act of provides that redress under the Act applies to persons who are fully insurable.
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Preliminary Issues.
Summary of Complainant’s Case:
First preliminary point:
Time Limits. The complainant advises that he was deemed ineligible for a redundancy payment by the Department of Social Protection on 27.08.21. He asks that this date, on which he was denied a redundancy payment by the Department of Social Protection, should be the operative date for purposes of calculating the 104 weeks. He requested redundancy from the respondent in March 2019. This was refused. In support of his request for an extension he states he did not know of any limits nor did the Deciding Officer in the Department of Social Protection advise him of deadlines for submission of an appeal to the Workplace Relations Commission. He believes that having worked in the company since 1996, a refusal to award him redundancy payments amounts to a very unfair outcome. He also referred to the death of his mother, Covid and the pressures of his new job as reasons why his appeal was not submitted within the statutory time limits.
Second preliminary point:
Eligibility for redundancy payments.
The complaint paid Class A 1 PRSI from 1996 to 10 December 2017. He changed to S1 contributions in January 2018 and has had continuous service. Following his father’s death, he became a 50% shareholder in the company and a director.
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Preliminary Issue:
Summary of Respondent’s Case:
First preliminary point.;
Time Limits The respondent did not wish to comment on the time limits.
Second preliminary point:
Eligibility for redundancy payments.
The respondent had no role in the decision of the Deciding Officer in the Department of Social protection who deemed him ineligible for redundancy payments. The complainant is a substantial shareholder, a company director, paying PRSI S1 contributions which does not usually entitle a person to redundancy payments. The respondent advises that the company is in liquidation and that there are no funds in this liquidation. The respondent has had to invest some of his own funds in meeting the costs arising from the liquidation process.
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Preliminary Issue:
Findings and Conclusions;
Time-limit for submission of complaints under the Act.
Relevant Law
“24.—Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 week beginning on the date of dismissal or the date of termination of employment— (a) the payment has been agreed and paid, or (b) the employee has made a claim for the payment by notice in writing given to the employer, or (c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39. (2) Notwithstanding any provision of this Act, an employee shall not be entitled to a weekly payment unless he has become entitled to a lump sum. [(2A) Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he is satisfied] that the employee would have been entitled to the lump sum and the employee shall thereupon become so entitled. (3) N/A
Application of the law to the facts of the instant appeal.
The complainant was made redundant on 28/11/2018. The complaint was lodged on 24/1/2022, a date which is 62 weeks in excess of the 104 weeks extended period permitted by statute and clearly not in compliance with the statutory provisions. I, therefore, do not have jurisdiction to hear this complaint. It is not necessary to address the complainant’s otherwise eligibility/ineligibility for redundancy payments.
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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.
I do not have jurisdiction to hear this complaint. I disallow this appeal. |
Dated: 19/01/24
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Redundancy payments. Failure to comply with statutory time limits. |