ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00018881(Conjoined with ADJ 12227)
A General Operative
A Government Department
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.
Date of Adjudication Hearing: 19 March 2019 and 23 April 2019
Workplace Relations Commission Adjudication Officer: Patsy Doyle
In accordance with Section 9 of the Protection of Employees (Employers’ Insolvency) Acts, 1984 – 2012, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant, a Lay Litigant supported by a Family Member, submitted a complaint against his former employer in liquidation dated 4 December 2017. He submitted that a Government Department had failed to make a full payment to him in accordance with the Insolvency Payments Scheme in Redundancy Payments and Minimum Notice Legislation.
He stated that he was employed by the now Liquidated company 1 September 1999 to 25 March 2017 when the company had entered Liquidation.
The Complainant submitted that he had not received the correct minimum notice from the Insolvency Fund.
The Respondent was named in the body of the Complaint Form as the Liquidated Company.
In January 2019, The WRC placed the WRC on notice of the complaints and diversified the complaint form into two separate ADJ Numbers: ADJ 12227 and 18881. This was undelivered and resent on 18 February 2019.
On the First Day of Hearing, The Complainant, supported by a family member was the sole attendee. The Family member outlined the case on the complaint form but was unsure whether the correct parties were named for the purposes of the complaint. The Complaint at this stage had become conjoined with ADJ 18881, albeit submitted on the same day. I clarified that there were two complaints:
1 A Shortfall in Redundancy Payment
2 A Shortfall in Minimum Notice
I took oral and written submissions from the sole attendee, the complainant and undertook to send all to the Liquidator and the Government Department to seek to obtain some up to date information. I did this on 26 March 2019 and received a response from the Liquidator, dated 28 March. Apart from indicating that he believed the Complainants outline of the story, he indicated that records were not available on how payment was made to the complainant from 1999-2010. He submitted that the Adjudication would determine the outcome in the case.
The Hearing reconvened on 23 April 2019 and this time the Government Body referred to in the complaint form presented at hearing. This was a welcome addition.
The Government Body made a Preliminary application at the outset that the complainant may have been mistaken in referring his claim for a Redundancy Payment under the Protection of Employees (Employers Insolvency) Act, 1984.
However, the Government body was prepared to assume Respondent status in the case provided that all parties agreed that the claim for a shortfall in a redundancy payment would be addressed under the Redundancy Payments Act, 1967-2014 in ADJ 12227 and the claim for a shortfall in Minimum Notice would be addressed in ADJ 18881 under Protection of Employees (Employers Insolvency) Act, 1984.
The Complainant and his Support Person agreed to this and I agreed to amend the complaint forms in both ADJ 12227 and ADJ 18881 on consent. While it was clear that the complainant had stated his wish to address both claims of redundancy and minimum notice on the primary complaint form in December 2017, some confusion had arisen on the correct identity of the Respondent. The Government Department has now resolved this and will be renamed as the Respondent from here on in both ADJ 12227 and ADJ 18881, on consent.
Summary of Complainant’s Case:
The Complainants representative outlined that the bakery where the complainant had worked in a General operative capacity September 1999-March 2017 had closed with one days’ notice. It has since entered liquidation.
The Liquidator circulated a questionnaire in April 2017. The Complainant applied for compensation for Minimum Notice and a payment of arrears in pay. He received a payment of €926.00 and submitted that this was insufficient.
On hearing the Respondent explanation for the non-payment of 8 weeks claim for Minimum Notice, The Complainant stated that he thought the signature on the IPI form was his, but he couldn’t really remember. His representative confirmed that he did not have access to external advice at that time and the Claim for Redundancy had been served first in time with the correct dates attached. The Complainants representative asked that some consideration be given to allow the signature to be regarded as a mistake the claim for 8 weeks be allowed to continue.
Summary of Respondent’s Case:
The Respondent outlined that that the purpose of the Insolvency Payments Scheme is to protect certain outstanding pay related entitlements due to employees in the event of the insolvency of their employer. These include wages, holiday, sick, minimum notice and certain pension contributions. Payments are made from the Social Insurance Fund. Awards made through the WRC are also covered.
The Scheme operates under the Protection of Employees (Employers Insolvency) Act 1984, as amended and is administered by the Redundancy and Insolvency Division of the Department of Employment Affairs and Social Protection.
The Respondent confirmed that the claim form submitted by the Liquidator stated that the complainant commenced work on 16 July 2010 and he was terminated on 27 March 2017. He was recorded as earning €200 per week. The Complainant sought an arrears of one week pay, €200 and 8 weeks in compensation for Minimum Notice €1600.
During the validation process, the termination date was changed to 25 March 2017 as verified by P45 and employment records. There was no change to the start date.
The claim was authorised and paid on €200 arrears in wages and €800 Minimum Notice on 26 May 2017.
The Respondent supports the decision of the Deciding Officer. The IPI form was completed by the Liquidator and the countersigned by the Complainant. The payment was correct based on the dates submitted. The Respondent exhibited the IPI form at hearing dated 25 April 2017.
In relying on Section 3 of the Protection of Employees (Employers Insolvency) Act 1984 as amended
Subject to Section 11 of this Act, this Act applies to employees employed in employment which is insurable for all benefits under the Social Welfare Consolidation Act 1993 or would be so insurable but for the fact that
(a) The employment concerned is an excepted employment by para 2,4,5 of part 2 of the First Schedule to the Social Welfare (consolidation) Act 1993 or
(b) Employees concerned have attained the age of 66 years.
The Respondent submitted that they are bound by the same argument put forward in ADJ 12227 in that the record and payment of contributions did not provide for payment.
On this occasion both parties had confirmed the start date as 16 July 2010 and the Deciding Officer had no choice but to pay the claim based on these facts in accordance with the legislative framework.
Findings and Conclusions:
I have considered the presentations advanced by both parties. My obligations under Section 9(1) (b) of the Act require that I consider a complaint within 6 months of the minister’s decision in the case. Both parties accept that the authorised decision in the instant case emerged on 26 May 2017 and payment followed on 2 June 2017. This place the complaint lodged on 4 December 2017 outside the parameters of Section 9(1) (b). I have considered the discretion I am permitted in accordance with Section 9(1) (C) and I am satisfied that the Complainant as a Lay Litigant with Special needs in Rehabilitative employment is deserving of an extension of time on reasonable cause. I have not found that the Respondent would be disadvantaged by this. I grant an extension of time in these unique circumstances.
The Respondent is clear that the form was administered in the spirit in which it was written. However, the Redundancy application was made first in time and this incorporated the 1999-2017-time line. I note that the Employer / Employer representative section was left blank on the RP50 and this may have cast some doubt on the certainty of the time lines for the Respondent.
However, I have found that the complainant was an employee in insurable employment from 1 September 1999 to 25 March 2017 in my earlier decision in ADJ 12227. I must adopt a consistent approach here.
I find that the complainant made an error on his IPI form in application for minimum notice. I find that this error should be forgiven considering any advice taken by the complainant before signage. I believe that he cannot be bound by this error. The Complainants recorded dates of employment should be rectified to the dates submitted on the RP50 form. 1 September 1999 to 25 March 2017 (post Validation).
I have found that the payment of Minimum Notice made by the Minister is less than the amount that the Minister is required to pay.
The claim is well founded.
Section 9 of the Protection of Employees (Employers’ Insolvency) Acts, 1984 – 2012 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 9 of that Act.
I have found the complaint to be well founded. In accordance with Section 9 of the Act, I declare that in accordance with Section 6(2)(a)(iii) of the Act the Minister is liable to make a of €800 in compensation for minimum notice to the complainant.
Dated: 17th July 2020
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Minimum Notice in Liquidation