EMPLOYMENT APPEALS TRIBUNAL
COMPLAINT(S) OF: CASE NO.
1) Mindaugas Savicius I20/2014
2) Declan Burke I9/2014
3) Joseph Carroll I13/2014
4) Keith Burns I19/201415
5) Gerard Lavelle I18/2014
6) Paul Cooney I14/2014
7) Wayne Conroy I16/2014
8) Stephen Fee I5/2014
9) Craig Murtagh I7/2014
10) Derek Mellon I12/2014
11) Aidan O'Connor I11/2014
12) Ken Cassidy I15/2014
13) Gerard Redmond I6/2014
14) Norbutas Vaidas I17/2014
15) Marius Jasiskis I21/2014
16) Stephen O'Connor I10/2014
17) Raymond Hoey I8/2014
Against the decision of The Minister for Social Protection in the case of :
Mindaugas Savicius, Declan Burke, Joseph Carroll, Keith Burns, Gerard Lavelle, Paul Cooney, Wayne Conroy, Stephen Fee, Craig Murtagh, Derek Mellon, Aidan O'Connor, Ken Cassidy, Gerard Redmond, Norbutas Vaidas, Marius Jasiskis, Stephen O'Connor, Raymond Hoey
V
M & G Ventilation & Air Conditioning Limited
under
PROTECTION OF EMPLOYEES (EMPLOYERS' INSOLVENCY) ACTS 1984 TO 2012
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr F. Moloney
Mr S. Mackell
heard this complaint at Dublin on 25th August 2015
Representation:
_______________
Complainant: Ms Chris Rowland
SIPTU
Connolly Hall, Palace Street, Drogheda, Co Louth
Respondent(s): No appearance or representation on behalf of the respondent
This case came before the Tribunal by way of 17 employees appealing the decision of the Minister for Social Protection under the Protection of Employees (Employers' Insolvency) Acts 1984 to 2012.
The declaration of the Tribunal was as follows:-
There was no appearance by or on behalf of the respondent. The Tribunal is satisfied that the respondent was on notice of the hearing.
The appellants herein had all been engaged by the company known as M&G Ventilation & Air Conditioning Limited. The appellants had all worked for different lengths of time and were paid at different rates of pay. They were all made redundant in a peremptory way on dates in either April or March 2010. The appellants all brought claims for minimum notice and under the Organisation of Working Time Act which said claims were heard by a division of this Tribunal on 19th January 2012. The appellants all succeeded before the Tribunal and determinations issued in and around February 2012. The appellants in furtherance of their claims sought satisfaction in the District Court in and around November 2012 at which hearing the Court confirmed the awards made and although every effort, including recourse to the Sheriff’s Office, was made to execute on foot of the District Court Orders the appellants have had no satisfaction to date.
Some fourteen months after the District Court affirmed the awards made a liquidator was appointed to the respondent company. The appointment was made on the 17th of January 2014. An application was made to the Liquidator for satisfaction and the appellants were notified by the Liquidator that there were no funds available to discharge the sums due and owing to the appellants.
As a last resort the appellants applied for payment under the Insolvency Payments Scheme. These said claims were supported by the Liquidator appointed to the employer company. By letters in and around April 2014 the appellants were informed that their claims were not being entertained by the Insolvency Payments Section by reason of the fact that the scheme only operates to cover legal remunerative entitlements in the 18 month period prior to the date of insolvency or termination of the employment, whichever is the later.
The Insolvency Section noted that the awards that the appellants sought to have satisfied related to a period of time well in excess of the date that the respondent employer went into liquidation. The awards relate to a period of time in 2010 – more than three years prior to the date of insolvency in January of 2014.
A very strong and competent case was put to the Tribunal that the Tribunal should interpret the legislation to allow that the Insolvency Section can and should have interpreted the Act to include an award which was only consolidated and realised as a liquidated sum by the District Court in November 2012 which if accepted by the Tribunal brought the matter within the 18-month period prior to insolvency.
The Tribunal has considerable sympathy for the appellants’ predicament and would be anxious, if at all possible, to facilitate some method by which they might each have their awards satisfied. However, any careful analysis of the wording of the legislation would unfortunately render what has been urged of the Tribunal as an incorrect application of the Law. It would be unworkable in cases of insolvency if no limitation was put on the period of time within which remuneration type claims can be brought against an insolvent employer. It is an unfortunate fact that the Orders of the District Court serve only to make the appellants creditors against the now insolvent entity and the appellants’ status as one-time employees is not relevant in this regard and does not give them any preferential entitlement.
Accordingly, the appeal fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)