Complainant

Respondent

Parties

Michael  Meade

Roadbridge Ltd (In Liquidation)

Representatives

  Self- represented

No appearance

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-00053474-001

28/10/2022

The Complainant commenced employment with the Respondent on the 12/02/2013 as a driver.  The Complainant’s role was made redundant on the 28/4/2022 due to the insolvency of the Respondent company. The Complainant received weekly remuneration of €860.00.  The Complainant did not receive a statutory redundancy payment from the Respondent.

On the 28/10/2022, the WRC received a complaint form, pursuant to the Protection of Employees (Employers’ Insolvency) Acts, 1984.   

No appearance was made, or evidence adduced at the hearing by or on behalf of the Respondent.

I am satisfied that the appointed Liquidator on behalf of the Respondent was notified of the date, time, and place of the hearing by way of the hearing letter dated 18/12/2023.  I note that further to the hearing letter the WRC was notified by way of email dated 4/1/2024 by Interpathadvisory that the appointed Liquidator would not be appearing at the hearing scheduled for the 6/2/2024. I further note that the appointed Liquidator was aware of the hearing date as confirmed by email. No appearance was made by the Respondent or the appointed Liquidator.   

I am satisfied that the Respondent and or appointed Liquidator on behalf of the Respondent were properly notified of the date, time and place of the hearing and failed to attend. The Respondent has made no contact with the WRC since the hearing date.   I proceeded to hear the case in the absence of the appointed Liquidator on behalf of the Respondent.

The Complainant submits the following in his complaint form;

“I spent 9.5 years with Roadbridge. I spent 5.5 years during this time in Scotland. Five months before I was transferred to Ireland I was put onto the English tax system, therefore I paid no PRSI for these 5 Months. When I returned to Ireland I was issued with a new contract but never broke my working contract with Roadbridge. I received an e-mail on the 18/05/2022 stating that I was being transferred back to Roadbridge Ltd. I feel I am being punished due to Roadbridges mistakes.”

The Complainant submitted that he was seeking his statutory redundancy payment which the Respondent failed to pay him. He stated that he had received a decision dated 6/10/2022 from the Department of Social Protection informing him that he was not entitled to a statutory redundancy payment which he seeks to challenge.

Evidence of the Complainant Michael Meade

The Complainant stated that the receiver appointed to act on behalf of the Respondent company sent in an application on his behalf to the Insolvency Payment Scheme seeking payments under various employment statutes which were owing to him.  This application form dated 12/6/2022 was opened at the hearing. The Complainant confirmed that he received a decision on behalf of the Minister for Enterprise Trade and Employment and received payment of €2,500 into his bank account under the Insolvency Payment Scheme. The Complainant confirmed that he couldn’t find a copy of the decision but stated that he was satisfied with what he had received under the scheme for arrears of wages, holiday pay and minimum notice.

The Complainant confirmed that he was satisfied that he had received the correct amount owing to him regarding arrears of wages, holiday pay and his minimum notice entitlement.

 In reply to a question from me, the Complainant confirmed that he was seeking a decision regarding his statutory redundancy payment and hadn't included a claim for same under the Redundancy Payments Acts as he didn't understand how to complete the complaint form and neglected to include a complaint under the Redundancy Payments Acts.

The Complainant stated that he started with the Respondent on the 12/2/2013 and was located in Wales. Five months after starting he came back to work in Ireland and spent two years working here. He went to Scotland in 2015 and worked there for 5.5 years.  He was provided with a second contract of employment dated 29/10/2020 and was based in Scotland. He received a third contract of employment dated 6/6/2021 and then came back to work in Ireland.

The Complainant stated that he was informed on 13/3/2022 that the Respondent company was going into insolvency. He stated that he was dismissed on the 28/4/2022 on the grounds of redundancy. He stated that his gross weekly wage was €860.

The Complainant stated that he did not receive a statutory redundancy payment. He further stated that he was paying PRSI all the time whether he was working in Wales, Scotland or Ireland and was paying tax in Ireland all the time. He stated that five months before May 2021 he was changed to the English tax system and paid PRSI there when he came back in May 2021 he was put back on the Irish system.  

The Complainant submitted a letter from the Department of Social Protection dated 6/10/2022, opened at the hearing, disallowing his application for a statutory redundancy payment on the basis of the following;

“Having examined the information, a decision has been made to disallow your application as it does not meet the required criteria.

In order to be eligible for a statutory redundancy payment, an employee must have at least two years continuous service in employment which is insurable under the Social Welfare Acts for all social welfare benefits, immediately prior to the date of termination. (Section 25 (2A)).

This Department records show that your current employment commenced on 6th May 2021 and ended 28th April 2022.

You have the right to request a review of this decision by a Department of Social Protection Deciding Officer……”

There was no appearance by or behalf of the Respondent or appointed Liquidator.

I amended the title of the Respondent on consent with the Complainant to reflect the fact that the Respondent company was in liquidation and had appointed a Liquidator.

The Complainant seeks a determination of his right to a statutory redundancy payment, notwithstanding that he did not include a complaint under the Redundancy Payments Acts. The question for me to determine is whether I have jurisdiction to hear a complaint under the Redundancy Payments Acts, on the basis that the complaint as framed is taken under the Protection of Employees (Employers’ Insolvency) Acts, 1984.  

It was clear to me from the evidence of the Complainant that he was satisfied with the monies he had received from the Minister for Enterprise Trade and Employment under the Insolvency Payment Scheme and affirmed that he had received €2,500 for arrears of pay, holiday pay, and minimum notice pay.

The Complainant submitted that he was seeking to appeal the decision dated 6/10/2022 from the Department of Social Protection disallowing his appeal for a statutory redundancy payment. It was clear to me that the Complainant had made an error when completing the complaint form and neglected to include a complaint under the Redundancy Payments Acts.

Considering the Complainant is a lay litigant, and he conceded at the hearing that he neglected to tick the correct box, even if I decided to expand my jurisdiction to include a complaint under Section 39 of the Redundancy Payments Acts 1969 on the basis of the Supreme Court decision in County Louth VEC –v- The Equality Tribunal [2016] IESC 40, there are further obstacles to consider regarding the determination of a complaint under the Redundancy Payments Acts 1969.

The correct legal avenue to challenge a decision of a Deciding Officer of the Department of Social Protection regarding an appeal of a statutory redundancy payment, such as the decision dated 6/10/2022 which the Complainant seeks to challenge, is provided for at Section 39(15) of the Redundancy Payments Acts 1969. This appeal is on notice to the Minister for Enterprise Trade and Employment to the Director General of the WRC.  Accordingly, the Minister for Enterprise Trade and Employment would be the correct Respondent not Roadbridge Limited.

Section 39 of the Redundancy Payments Acts 1969 provides in the relevant part;

Redundancy Appeals Tribunal and appeals and references thereto.

“Section 39 - (15) Any employer who is dissatisfied with a decision given by the Minister in relation to a rebate or with any decision given by a deciding officer in relation to any question specified in section 38 (1) (e) or 38 (1) (f), or any employee who is dissatisfied with a decision given by a deciding officer under section 38 or with any decision of an employer under this Act may appeal to the Director General against the decision provided however, that the Director General shall not be competent to decide whether or not an employee is or was at the material time in employment which is or was insurable for all benefits under the Social Welfare Acts. “

I note that the Minister for Enterprise Trade and Employment was not notified of the appeal nor named as the correct Respondent in this case.

For the sake of completeness even if the Minister for Enterprise Trade and Employment was named correctly as the Respondent and the claim was submitted under the correct statute, I must then consider the grounds of appeal. I note that the appeal was disallowed based on Section 25(2A) of the Redundancy Payments Acts.

Section 25 (2A) of the Redundancy Payments Acts 1969 provides in the relevant part;

Employment wholly or partly abroad.

“25-(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.”

It is clear from this provision that for an employee to qualify for a statutory redundancy payment who has previously worked outside the State, he/she is required to have worked at least two years immediately prior to the date of termination within the State. Accordingly for the Complainant to qualify and meet the requirement set out in Section 25(2A), considering his date of termination was the 28/4/2022, he must have worked in the State on a continuous basis from the 29/4/2020. I note from the Complainant’s evidence that he was working in Scotland prior to his return to Ireland on the 6/5/2021 where he worked until his contract was terminated on the 28/4/2022. I also note from a contract of employment submitted by the Complainant effective from the 29/10/2020 that he was based in the UK, in Scotland. Therefore, even if I had the jurisdiction to determine this complaint under the Redundancy Payments Acts it is clear to me that the Complainant would not qualify for a statutory redundancy payment based on Section 25(2A) in that he had not worked for a continuous period of 2 years within the State prior to his termination.  

For the reasons set out above, I find that I have no jurisdiction to investigate an appeal from a decision of a Deciding Officer disallowing a statutory redundancy payment under the Redundancy Payments Acts 1969.

The Insolvency Payments Scheme operates under the Protection of Employees (Employers Insolvency) Act 1984. I note that a redundancy payment is not part of the circumstances identified under Section 6 of the Protection of Employees (Employers’ Insolvency) Act 1984, therefore, it is not part of the redress provisions in Section 9 of the 1984 Insolvency Act.  There was no evidence put before me that the Complainant wished to pursue a complaint pursuant to Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984. Consequently, I find that this complaint is not well-founded.

For the reasons set out above, I find that the complaint under Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984 is not well founded.

Appeal of decision of a deciding officer statutory redundancy payment