Complainant

Respondent

Parties

Anthony  O Brien

Roadbridge Limited ( In Receivership)

Representatives

Ms. Sophie Pigot, B.L., instructed by Micheál Glynn & Co. Solicitors

 Did not attend

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-00055458-001

08/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00055458-002

08/03/2023

The complainant has presented a complaint that he was denied his statutory notice entitlements and a further complaint that he did not receive a redundancy payment from his employer after the company went into receivership on 11/3/2022.

He commenced employment with the respondent as a commercial manager on the 6/12/1999. His last salary was paid to him on 10/3/2022. His last day working was 11/3/2022.

His gross weekly salary was €2115.

He submitted his complaint to the WRC on 8/3/2023.

The Complainant’s complaint referral form was received by the WRC on 8/3/2023 and identified the following two complaints:

A breach of the Minimum Notice & Terms of Employment Act, 1973, and a complaint under the Redundancy Payments Act, 1967.

CA-00055458-001 Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

The Complainant’s complaint referral form was received by the WRC on 8/3/2023.

The complainant gave evidence under affirmation.

His uncontested evidence is that he was made redundant on 11/3/2023. He received his last salary on 10/3/2022 and his last day working was 11/3/2022.

His employment ended on 11/3/2022 a year prior to the lodgement of the complaint and contrary to the requirement to lodge a complaint within six months of the contravention which occurred on 11/3/22.

The complainant requests that I extend the cognisable period as provided for in section 41 (8) Workplace Relations Act, 2015   which addresses the discretionary power of adjudicators to extend time. It provides as follows:

“(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The complainant refers to the Labour Court decision in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT 0388 which set out the established test for identifying if reasonable cause exists to extend time up to 12 Months. There, the Labour Court determined as follows:

“It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complainant would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.”

Applying this test to the circumstances of the instant case, the complainant argues that the facts of the instant case align with the principles set out in Skanska and amount to reasonable cause

Reasonable cause is found in the following circumstances:

The complainant’s employment status was in a state of flux.

He did not receive formal identification of redundancy until 15/11/2022 which was to take effect from 30/9/2022

When the company went into receivership, he was asked by the liquidator Grant Thornton to remain working for the purposes of recovering monies from the creditors on Grant Thornton’s behalf. There was no reference to the complainant being made redundant. He accepted that he was working as a subcontractor for the Liquidator

On the 16 May and 28 June 2022, the complainant sought assistance from the Irish receivers, Grant Thornton, for clarification on his entitlement to redundancy. He received no response to these emails.

The complainant argues that these facts are sufficient to deprive him of the certainty around his employment status and therefore amount to a reasonable cause for failure to submit his complaint within the statutory six month period as per section 41(6) of the Act of 2015.

The respondent though notified of the time and date of the hearing failed to attend or to provide an explanation for their absence.

CA-00055458-001 Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

The Complainant’s complaint referral form was received by the WRC on 8/3/2023.

Relevant law.

Section 41 (6) of the Workplace Relations Act 2015, dictates that complaints must be submitted within six months of the last contravention. The date of the contravention being the 11/3/2023 means that the complaint should have been submitted by 10 /9/2022.

The complainant requested that I extend the cognisable period by a further six months to bring his complaint within jurisdiction.

Section 41(8) Workplace Relations Act 2015 provides as follows;

“ An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

In examining “reasonable cause”, the Labour Court in Salesforce.com v Leech EDA1615 held as follows:

            “It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time.   Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the   delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an   applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

The complainant’s own evidence revealed that the respondent went into receivership on the 11/3/2022.He sought confirmation from the receiver on 16/5/2022 and on 28/6/22 that he was entitled to redundancy.

Any remaining doubts about his employment status were surely dispelled by the respondent’s letter of 15/11/22 informing him that he was redundant effective from 30/9/2022. As per Salesforce, the factors relied upon must explain the delay, but the uncertainty ceased to exist in the instant case by the receiver’s letter of 15/11/2022. Yet the complaint was not presented to the WRC for a further four months. Hence, the factors relied upon to excuse the   delay ceased to operate nearly four months before the complaint was presented on 8/3/2023. It undermines the claim that the uncertainty concerning his employment status was the actual cause of the delay.

Based on the evidence and authorities, I am unable to find that the factors cited  excuse the delay or amount to reasonable cause.

I find that I do not have jurisdiction to hear this complaint.

CA-00055458-002Complaint under Section 39 of the Redundancy Payments Act, 1967.

The complainant was made redundant on the 11/3/2022. The complaint was lodged with the WRC on the 8/3/2023 and complies with the requirement to present a complaint within 52 weeks.

CA-00055458-001 Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

I have found that I do not have jurisdiction to hear this complaint.

CA-00055458-002 Complaint under Section 39 of the Redundancy Payments Act, 1967.

The complaint gave evidence under affirmation.

The complainant commenced employment with the respondent in 1999 as a commercial manager.

 In 2009, the respondent at a Board meeting agreed that employees transferring to its international or associated companies would preserve their continuity of service and Irish conditions of employment.

“For the avoidance of doubt all entitlements enjoyed by Roadbridge employees in Ireland will be exactly the same as employees who transfer to international companies”.

The complainant was made redundant on the 11/3/2022. The complaint was lodged with the WRC on the 8/3/2023.

The complainant was paid in euro from 1999 to 2022.

The company assigned him to Scotland in 2011 on an Irish contract with Roadbridge Ltd. They flew him to Scotland from Monday to Thursday, He paid his PRSI, PAYE, Pensions contributions etc. in Ireland during his entire employment with Roadbridge Limited.

In January 2022 the complainant was transferred to Roadbridge UK without consultation. After much pressure he was placed on a Roadbridge UK contract on the 10 March 2022, the day before his employment ceased. He was in the UK when the respondent company went into administration. He was retained by the Receiver to try and secure monies from the creditors He was on a very uncertain footing. Payments for this work ceased in August 2022.

He sent two emails, one on 16/5/2020 and another on 28 June 2022 seeking clarity on his entitlement to a redundancy payment but received no reply.

The receiver notified him on 15/11/22 that he was redundant effective from 30/9/2022

As the complainant was working abroad, his barrister refers to the necessity to consider how section 25 of the Redundancy Payments Acts 1967 – 2014 impacts upon his complaint.

The complainant’s barrister refers to the many similar complaints taken by employees of Roadbridge and upheld by Adjudicators or by the Labour Court.

The complainant’s barrister points to Paul Early v Roadbridge Ltd. (in liquidation) ADJ-00040854 as being on all fours with the instant complaint. This was followed in other decisions involving the same respondent.

The Adjudicator in Paul Early  found that

 “The Complainant in this case was ordinarily resident in the State at the time of his redundancy. I am satisfied that he was working in the State for two years prior to the cessation of his employment i.e. 20 March 2020 until 29 April 2022. I am therefore satisfied that, in accordance with Section 25 subsection (3), the totality of the Complainant’s service with the Respondent employer is to be used to calculate his entitlement to statutory redundancy. Furthermore, I am satisfied that the Complainant is due his payment entirely from this State having received no equivalent payment in this, the State where he was normally residing and working at the time when his employment was terminated on grounds of redundancy. The appeal is allowed.”

The complainant in the instant case was, likewise, incorrectly advised by the Receiver that he would be unsuccessful in his application for redundancy payments in both the UK and Ireland. He was ordinarily resident in the state at the time of the redundancy. He paid all PRSI and tax in Ireland. He had neither a residence in the UK nor did he possess a UK National Insurance certificate.

With reference to section 25 of the Act, the complainant at the date of his dismissal was deprived of the opportunity to work in Ireland, the respondent having gone into receivership.

Section 24(4) permits a payment of the balance due on top of any redundancy monies paid by the UK. He received no redundancy payments from the Uk.

He should be entitled to redundancy payments based on his entire service with the respondent that is from 6 December 1999 until 10 March 2022.

CA-00055458-001 Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

The respondent though notified of the time and date of the hearing failed to attend or to provide an explanation for their absence.

A-00055458-002Complaint under Section 39 of the Redundancy Payments Act, 1967

The respondent though notified of the time and date of the hearing failed to attend or to provide an explanation for their absence.

CA-00055458-001 Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

I have found that I do not have jurisdiction to hear this complaint.

CA-00055458-002 Complaint under Section 39 of the Redundancy Payments Act, 1967-2014.

This is one of many complaints taken by employees against this respondent.

The redundancy is not contested. The respondent company went into receivership on 11/3/22.

This situation matches the definition of redundancy found in section 7(2) (a)of the Acts.

Based on the law and the uncontested evidence, I find that the complainant’s employment was terminated as a result of redundancy.

Based on the uncontested evidence, I find that the respondent failed to pay the complainant redundancy monies in accordance with section 7 of the Act of 1967-2014.

In addition to establishing that a genuine redundancy existed , the matter of the complainant working outside the state and its impact on his entitlement to redundancy payments  needs  to be addressed.

Relevant Law.

Employment wholly or partly abroad.

Section 25 provides as follows:

“ (1) An employee shall not be entitled to redundancy payment if on the date of dismissal he is outside the State, unless under his contract of employment he ordinarily worked in the State.

(2)  Notwithstanding subsection (1), an employee who under his contract of employment ordinarily works outside the State shall not be entitled to redundancy payment unless, immediately before he commenced to work outside the State,  the employee was insurable for all benefits under the Social Welfare (Consolidation) Act 1993 or would have been insurable for all such benefits but for the fact that the employment concerned was an excepted employment by virtue of paragraph 2, 4 or 5 of Part II of the First Schedule to that Act and the employee] was in the employment of the employer concerned and unless—

(a) he was in the State in accordance with the instructions of his employer on the date of dismissal, or

(b) he had not been afforded a reasonable opportunity by his employer of being in the State on that date.”

The complainant paid PRSI, tax and pension deductions in  Ireland from December 1999 until February 2022.

The Labour Court in Roadbridge Civil Engineering and Building Contractors Roadbridge Ltd., RPD/23/9/9, held that the respondent should have ensured that that complainant, (working in the UK on the date of his dismissal), was covered by the provisions of section 25(2)(a) by instructing him to be in the state on the date of his dismissal. The Court concluded therefore

“that the provisions of section 25 (2)(b) must apply and his appeal against the refusal to pay him redundancy monies must succeed.”

I find on the basis of the evidence that the respondent omitted to instruct the complainant to be in Ireland on the date of his dismissal on the 10 March 2022. This failure has to be set against the undertaking given to employees who agreed to transfer to the UK and to associate companies that their agreement to transfer included a guarantee that their conditions of employment would be identical to those enjoyed by employees remaining in Ireland. This included the right to retain eligibility for redundancy payments.

I find therefore that the complainant’s appeal against the refusal to pay him redundancy monies must succeed.

Section 25 (3) provides as follows:

“(3) In computing, for the purposes of this Act, for what period of service a person was in continuous employment, any period of service in the employment of the employer concerned while the employee was outside the State shall be deemed to have been service in the employment of that employer within the State.

(4) Where an employee who has worked for his employer outside the State becomes entitled to redundancy payment under this Act, the employer in making any lump sum payment due to the employee under section 19 shall be entitled to deduct from that payment any redundancy payment to which that employee may have been entitled under a statutory scheme relating to redundancy in the State in which he was working.”

The complainant had neither an address, nor paid national insurance or tax in the UK. He received no redundancy payment from the UK and was advised by the Receiver quoting their HR advisors that he was ineligible.

He was advised by the receiver in May 2023 that he should apply to Revenue for redundancy payments in Ireland but that he was likely to be unsuccessful in his quest.

Application of Section 25 to the circumstances of the instant complaint.

I find that the complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Acts 1967 -2014, in accordance with the following details and subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period:

Date of commencement of employment: 6/12/1999

Date of termination of employment:   on 10/3/2023

Gross reckonable weekly pay: €600

CA-00055458-001 Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

I decide that I do not have jurisdiction to hear this complaint

A-00055458-002Complaint under Section 39 of the Redundancy Payments Act, 1967

I decide that the complainant is entitled to a redundancy lump sum payment pursuant to the Redundancy Payments Acts 1967 -2014, in accordance with the following details and subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period:

Date of commencement of employment: 6/12/1999

Date of termination of employment:   on 10/3/2023

Gross reckonable weekly pay: €600

Redundancy payments; employment abroad.