Complainant

Respondent

Parties

Tony  Jordan

Merit Epos Systems Ltd (in liquidation)

Complainant

Respondent

Anonymised Parties

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Representatives

Kirby Healy Chartered Accountants

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-00063241-001

01/05/2024

The complainant submits that he did not receive redundancy payment.

The complainant’s complaint was received by the WRC on 01/05/2024 and he submitted that he commenced employment on 22/09/2013 and his employment ended on 03/08/2022.

The complainant submitted that the reason for the delay in submitting his claim was that he was waiting on a response from the liquidator regarding his claim that he sent in September 2022 and then contacted them again in April and May of 2023 asking what was happening to the redundancy claim. After numerous phone calls they eventually called him back after several weeks and told him they never received the form that had been posted to them.  The complainant resent the forms again at their request this time by email and registered post and after a few weeks was told he had no claim as he was working for a new company before the company went into Liquidation. He was told the respondent went into Liquidation on 19/08/2022 but received a last pay cheque on 03/08/2022 and he disputed this with them and also the fact that he never got any official notice of the redundancy and as far as he was concerned he was unemployed as of 03/08/2022. The last email received from the Liquidator was 09/10/2023 saying Mr. Kirby was considering the claim and the complainant received nothing from him since.  He submitted he was employed with the respondent from September 2013 up until 03/08/2022.

The complainant gave evidence that he joined the respondent in 2013 until his employment ended August 2022 and then joined another company and the director of this other company was his brother.  His brother has also been the director of the respondent with his wife, the complainant’s sister in law Ms B and when they divorced it was liquidated and that was the last date that he worked for the respondent.  His brother Mr A and his nephew Mr C asked him to join their new company, 10 days later in September 2022.  He said that he posted his application for redundancy to the liquidator and they said they never received it and he then submitted it in August 2023 and he did not submit his claim to the WRC as he was waiting details  from the liquidator.  He said there were emails to the liquidator asking for an update and he made a few phone calls about it and did not know the process involved.  He said the work was the same between the two companies  that he had worked for and out of the 10 people who were with the respondent, just 1 person and him are with the current company that he works for.

Under cross examination he said he was never told officially that the respondent was closing and that customers told him it was liquidated and that it was around June or July 2022.  He said the brother’s wife Ms B at the time was in charge and that his brother Mr A had nothing to do with it.  He said that the weekend after the company closed down he got a phone call from his nephew Mr C and had no idea when this other company was incorporated and was happy to get a job and if he had not got that job he would have been out of work and he started in the new company around 06/08/2022.  He said he was unemployed for 6 or 7 days having been made redundant.  He said the new company had their own vehicles and the old vehicles are not in use and they are not good.  He said the first day of working in the new company he went to work and sat at the same desk as where he had previously worked.  He said he did not know till about August 2022 about the new company and earns more in the current company and he has a contract of employment and that now he works from home.

The respondent submitted that as liquidator they have a responsibility to investigate claims and it would appear that prior to the liquidator being appointed that around 03/08/2022 the business and trade of the respondent was transferred to a related company where the complainant is currently employed.  It was further submitted that the complaint was out of time.

While the complainant had submitted a claim for redundancy to the liquidator he refused to provide detailed information and documents regarding the alleged transfer of business to Company X.  It was submitted that delays are attributable to the complainant.  It was submitted that the complainant did not have a break in service between his employment with the respondent and Company X and no genuine redundancy existed as he remained in employment of Mr A.  The respondent is insolvent with a large deficit of creditors.  It was further outlined unusual that the complainant was not seeking minimum notice and without prejudice that this was a contrived redundancy and that the assets of the respondent transferred to Company X and any alleged claimed accrued entitlement transferred to the organisation Company X.

Mr Kirby gave evidence that the complainant had delayed in submitted his complaint and made no mention of a new employment and no mention in emails of this and that they had tried to investigate and it would appear that this other company was set up prior to liquidation.    It was submitted that the complainant had said he started work 10 days after he finished in the other company and that previously the complainant had said he started 6 days after he finished in the other company.  Mr Kirby submitted said that the new company is identical to the old company with same assets, computer, location and with same people involved in it.  This other company had been set up by the complainant’s brother  Mr A who is key decision maker and the complainant’s nephew who is the son of complainant’s brother is the director.

It was submitted that a transfer of undertaking would have occurred and there is no supporting document from the complainant regarding this other employer

Under cross Examination Mr Kirby said that some of the old customers said they were with the other company that the complainant is working for and said he could not provide details of what customers said they paid monies outstanding to the respondent to Company X.

The complainant submits that he did not get his redundancy payment and the respondent submits that the complaint is out of time.  The respondent further submits that without prejudice to the aforementioned, the complainant does not have an entitlement to redundancy payment as he secured employment with another company and that in effect this amount to a transfer of undertakings and he remains in employment with this other organisation, Company X.  The complainant disputes this and submits that the redundancy payment is owing to him.

Section 24 provides for Time-limit on claims for redundancy payment:

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 weeks 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 that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.

(3) Notwithstanding subsection (2A), where an employee establishes to the satisfaction of the Director General]—

(a) that failure to make a claim for a lump sum before the end of the period of 104 weeks mentioned in that subsection was caused by his ignorance of the identity of his employer or employers or by his ignorance of a change of employer involving his dismissal and engagement under a contract with another employer, and

(b) that such ignorance arose out of or was contributed to by a breach of a statutory duty to give the employee either notice of his proposed dismissal or a redundancy certificate, the period of 104 weeks shall commence from such date as the Director General at his discretion considers reasonable having regard to all the circumstances.

The complainant failed to make a claim within 52 weeks and the complainant has failed to establish as reasonable his failure to submit his claim in a timely manner as provided for above and it would appear from the evidence and the submission that delays are attributable to the complainant.  The complaint is statute barred and therefore the complaint is disallowed.

The complaint is statute barred and therefore the complaint is disallowed.

Redundancy payment, statue barred,