Complainant

Respondent

Parties

Michael  Gallagher

Roadbridge Limited

Representatives

Sophie Pigot BL Instructed by  Micheàl Glynn & Co. Solicitors

 Not Present

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-00066328-001

27/09/2024

The Complainant was made redundant while seconded to the UK part of the business but remained on an Irish contract and paid Irish payroll contributions. The Respondent company went into liquidation. After a protracted and difficult time the Complainant was paid a redundancy payment by the UK Government but this was almost half what he would have received under Irish redundancy law. The Complainant sought to have his entitlement to a redundancy payment in Ireland approved and that the balance of what he was due versus what he received from the UK Government be paid to him.

The claim is for the application of Irish legal entitlement to the Complainant to apply for Irish redundancy amount in accordance with the provisions of Section 25 of the Redundancy Payments Act. 1967.

The Complainant received UK£ 15.417 redundancy (equivalent to €17,434) and as he is entitled to receive €32,172.00 in statutory redundancy in this jurisdiction this fell short of the entitlement in Ireland by €14.737.3. Therefore, the Complainant is seeking a redundancy payment in that amount in accordance with the provisions of Section 25 of the Redundancy Payments Act, 1967.

This issue was raised in near identical claims by several employees of the Respondent. and the Complainants were successful with the most recent published decision on the 21 st of June 2024.

This Complainant is also seeking an extension of time to make a claim for Redundancy under s24(2A) of the Redundancy Payments Act 1967 for declaration that the Complainants to be entitled to redundancy because the Complainants failure to apply for Redundancy was due to a reasonable cause. The caselaw and legislation have decided that if a Complainant fails to make a claim after 52 weeks but before 104 weeks of termination. and the failure was due to a reasonable cause. the Adjudication Officer may declare the employee to be entitled to the lump and the employee shall thereupon become so entitled as was found in a recently decided similar ease. This is the case for the Complainant and detailed submissions will outline the circumstances and reasons for this.

The Complainant was notified on the 1 5th of November 2022 that he was being made redundant. The Complainant who was advised to do so by the Respondent. applied for redundancy in the UK on the 12th of February 2023 and this was a difficult and long process that was successful on the 23 rd of November 2023. In September 2024 the Complainant submitted a claim to the WRC to seeking his statutory redundancy payment in accordance with the provisions of Section 25 of the Redundancy Payments Act, 1967. In total 97 weeks passed from the time the Complainant was made redundant to applying to the WRC for relief but in that time. he was actively seeking to get his UK redundancy so that he could accurately apply for statutory redundancy in Ireland. The Complainant focused all his efforts on resolving the issues linked to his UK redundancy as he believed this to be the correct procedure. In the absence of any' Human Resources department from to seek guidance in respect of the Irish redundancy the Complainant was relying solely on the advices of ERA Solutions who dealt with the UK aspect of matters only. The UK process was protracted and by the tine a resolution has been found the 52 time limit which to bring a claim for the Irish Redundancy claim had passed. In any event the Complainant did not know how much redundancy he would be claiming under the Irish system as his UK figures had not been determined. The Complainant was also under considerable pressure trying to find alternative employment and eventually from June 2022 undertook the arduous task of setting up his own company with two others persons. All of these instances made it impossible and extremely difficult for the Complainant to immediately submit a claim to the WRC.

The Complainant started working for Pat Mulcair Civil Engineering and Building Contractor in 1996 on civil engineering projects throughout Ireland. On the 611' of December 1999 the Complainant's employment was transferred to Roadbridge Ltd in Ireland which was also owned by Pat Mulcair. The Employment Contract stated that the terms of employment and service took effect from the 1 7th of June 1996 and was continuous. From 1996 to 2018 the Complainant was paid in Euro and he paid his pension contributions. PAYE and PRSI in Ireland until 2018.

Following 2008 Financial Crash Roadbridge Ltd. a Civil Engineering Company in Ireland, sought contracts outside of Ireland. The board of Roadbridge issued a letter on 1 7th July 2009. that all Roadbridge Ltd employees transferring abroad or to associated Roadbridge Companies should not have their service with Roadbridge Ltd broken and all entitlement enjoyed by Roadbridge Ltd employees in Ireland would be exactly the same for those transferring to international conipanies. This letter was required as Roadbridge Ltd were experiencing difficulties getting staff and employees to work abroad in countries with less favourable employment protection and entitlements that on offer working in Ireland and more important that your service and entitlements for periods with Roadbridge Ltd would not be broken or effected by working abroad.

From the 6 of December 1999 to the 9th of April 2012. the Complainant continued to work for Roadbridge Ltd on various Civil Infrastructure Projects throughout Ireland. In April 2012 the Complainant worked temporarily to establish a Roadbridge Ltd Office in Cardiff. then Project Manage a Project in South Wales and then open a tendering office in London. During this period. he worked for Roadbridge Ltd under an exclusion order whereby, he was temporarily employed in the UK from Ireland where he continued to pay Irish PRSI

On the 9th of August 20 18 Roadbridge Ltd unable to secure a continuous exclusion order for the Complainant who from this date onwards paid UK Income Tax and National Insurance Contribution instead of UK Income tax and Irish PRSl Contribution. On the 3 of August 2018 Roadbridge Ltd issued a new Roadbridge Ltd Ireland Employment Contract effective from the 9th of August 2018 to reflect this change. This employment contract continued to be with Roadbridge Ltd of Crossagalla, Ballysimon Road, Litneriek, Ireland. an Irish Company and not the Roadbriclge UK Company .

On the I I th of March 2022 Roadbridge Ltd and Roadbridge UK entered into Receivership

Administration respectively. The Complainant was advised to male his redundancy claim under the Redundancy Payment Service in the UK and not in Ireland. The Complainant took huge efforts to the procedures to apply for redundancy in the UK and was refused on numerous attempts none of which were the fault of the Complainant.

On the 12th of Februarv 2023 the Complainant applied for redundancy using a National Insurance Number but it would not allow him to upload the application as it stated that it was not a recognised NI Number. After several attempts, the Complainant put in a fictional number so that he could get the claim application submitted and registered. He then contacted the redundancy helpline and discovered that the National Insurance Number issued by MH Revenue & Customs was a temporary National Insurance Number and that he needed to apply a National Insurance Number.

On the 1 6th of March 2023 the Complainant completed again an on-line application for making a claim but the temporary National Insurance Number he had was not recognised for making a redundancy claim. On the 3rd of April the Complainant was notified by email by the Insolvency Service that his claim was rejected due to invalid National Insurance Number.  In April 2023 the Complainant responded by email to The Insolvency Service. and advised that he in process of applying for a National Insurance Number. and requested to retain his claim on 'file and once he received the National Insurance Number he would forward same so that his redundancy claim could be finalisecl.

The Complainant outlined a significant amount of steps he had to go through to get his redundancy payment on line and ultimately approved in the UK.

The Complainants UK redundancy value was equivalent to €17.434.70 (El 5.41 7.00 x 1 .130875). The statutory redundancy' payment in Ireland is two week's gross pay per year of service up to a ceiling of €600 per week plus one week's bonus pay. Using the MY' Wefare Redundancy Calculator the Complainant's Redundancy Entitlement vs as calculated at €32.172.0() a difference of €14,737.30 to what he received in the UK

This process was difficult and arduous and took one year to complete.

Similar Caselaw

This Complainant relied on several similar successful clainns2(' made on behalf of a group of workers who had been employed by' Roadbridge Civil Engineering & Building Contractors based in Ireland but who also worked on UK sites. In recent years the Respondent transferred these workers to their UK site. In the ease of Hugh Beirne v Roadbridge Civil Engineering & Building Contractors Roadbridge Ltd. ADJ-903/2022, the company went into receivership and this employee then made redundant without notice on the 28th of April 2022 and was paid the statutory entitlements under UK legislation. However, like the Complainant in this case, each worker had worked Roadbridge Limited for longer than Roadbridge UK and they received the balance of the statutory entitlement paid to that of the Irish legislature.

Employees of the Respondent were assured in writing by the Respondent as follows;

'For the avoidance of doubt all entitlement enjoyed by Roadbridge employees in Ireland will be exactly the same as employees who transfer to international Companies'.

This letter was successfully relied on in the case of Anthony O'Brien v Roadbridge Ltd (In Receivership) ADJ-0()044866.

In that case and other similar cases- the complainants relied on Section 25 of the Redundancy Payments Acts. 1967 regarding their employment wholly or partly abroad. The complainants relied on Section 25(2)(a) as the complainants were paying PRSI in Ireland immediately before they commenced in the UJK. This is similar and should be applied to the Complainant in this matter. Like the Complainant. their employer is an employer within the State and on the date of their dismissal they were not afforded a reasonable opportunity of being in Ireland due to the employer going into Receivership. S. 25(4) of the Act allows for payment of a balance due on top of any redundancy payment received in another State. in which an employee was working.

The intent of the above legislation applied in Hugh Beirne v Roadbridge Civil Engineering & Building Contractors Roadbridge Ltd.,ADJ- ADJ-903/2()22 and other W RC cases and the complainants were awarded the balance of redundancy' payment’s under Irish legislation.

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 UIK 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.

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”.

Exact amount owed:/Amount of Lump Sum

In accordance with Section 25 subsection (3), the totality of the Complainants service with the Respondent employer is to be used to calculate his entitlement to statutory redundancy. The statutory redundancy payment in Ireland is two week -s gross pay' per year of service up to a ceiling of €600 per week plus one week's bonus pay. The Complainant's Statutory Redundancy Entitlement was calculated at €32.173 less €17,434.70 (El 5.41 7.00 x 1 .130875) in UK redundancy. which is a total of €14,737.30. The Complainant in this ease was ordinarily a resident in the State at the time of his redundancy and had been working with unbroken service for the Respondent from 1996 until 2022 and had been ensured that his entitlements would be the same when working for Roadbridge outside of Ireland. Based on near identical previous decisions of former  colleagues against the Respondent. the Complainant sought statutory redundancy as his employment as terminated on the grounds of redundancy.

A Complaint was received by the Director General of the Workplace Relations Commission by the Complainant  on  September 27th 2024 alleging that his former employer contravened the provisions of the Redundancy payments Act  1967 in relation to him. The said complaint was referred to me for investigation. A Hearing for that purpose was held on February 14th 2024. There was no appearance by or on behalf of the Respondent at the Hearing. I am satisfied that the said Respondent  was informed in writing of the date, time and place at which the Hearing to investigate the complaint would be held and were not present at the Hearing.

24. Time-limit on claims for redundancy payment

(1) 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 or she 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 or she 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.

Based on the uncontested evidence of the Complainant I find that he had reasonable cause for not submitting the complaint within 52 weeks.

Under s.25(2)(b) of the Act, the Complainant is entitled to payment under the Act if he had paid PRSI in this State up to the transfer and was not afforded a reasonable opportunity by his employer of being in the State on the date of his redundancy. He was denied this opportunity due to the Respondent going into receivership.

S. 25(4) of the Act allows for payment of a balance due on top of any redundancy payment received in another State, in which an employee was working .Other colleagues have been successful in arguing before the WRC that the relevant balance is payable. All employees of the Respondent who transferred to associated companies abroad were assured that they would be treated the same as their colleagues in Ireland, all of whom will be paid in accordance with the Act.

The applicable law.

Redundancy Payments Act.

Employment wholly or partly abroad.

25.—(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 1993or 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.

(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.

(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.

Amount of Lump Sum

Section 19.

1. (1) The amount of the lump sum shall be equivalent to the aggregate of the following:

• (a) the product of two weeks of the employee’s normal weekly remuneration and the number of years of continuous employment from the date on which the employee attained the age of 16 years with the employer by whom the employee was employed on the date of dismissal or by whom the employee was employed when the employee gave notice of intention to claim under section 12, and

(b) a sum equivalent to the employee’s normal weekly remuneration.

2. If the total amount of reckonable service is not an exact number of years, the “excess” days shall be credited as a proportion of a year.

Employees of the Respondent were assured in writing by the Respondent as follows;

‘For the avoidance of doubt all entitlement enjoyed by Roadbridge employees in Ireland will be exactly the same as employees who transfer to international Companies’.

As this formed the basis on which such employees transferred, it formed a part of their contract with the Respondent. It was, therefore, incumbent on their employer to take whatever steps were necessary to ensure that this undertaking was met.

The Respondent could have, and should have, ensured that the Complainant was covered by the provision of s.25(2) (a) by instructing him to be in the State on the date of dismissal. By failing to do so, the Adjudicator  concurs with the argument made by the Representative on behalf of the Complainant that he was not afforded a reasonable opportunity by his employer of being in the State on that date. Therefore, the provisions of s.25(2)(b) above are applicable to the Complainant and his appeal must succeed.

As an amount of €32, 173  is payable to the Complainant under the terms of the Act and as he has received an amount of €17,434.70, he is entitled, in accordance with s. 25(4) as set out above, to be paid a balance of €14,737.30  and the Adjudicator determines that this is the redundancy amount payable to him.

I find in favour of the Complainant and award the Complainant a statutory redundancy amount due of €14,737.30.

Redundancy