Complainant

Respondent

Parties

Edward  Byrne

Ardanis Technologies

Complainant

Respondent

Anonymised Parties

Representatives

  Self

 Stefan Goor, CIO Ardanis Technologies

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00063034-001

24/04/2024

The Complainant commenced employment with the Respondent on 05/01/2020 and he was based in the United Kingdom (UK).  He was dismissed by reason of redundancy on 07/11/2023.  The Complainant submitted his complaint to the Workplace Relations Commission (WRC) on 24/04/2024.  He was paid an annual salary in Sterling which was the equivalent of €52,250.

The Complainant throughout his employment and was paid in Sterling and paid all his taxes in the UK.  However, as the contract of employment was issued under the provisions of the legislation of the Republic of Ireland, he submits that he is entitled to a redundancy payment under the provisions of the Redundancy Payments Act.   The Respondent submits that the Complainant never lived in Ireland and never paid PRSI or PAYE in Ireland and therefore is not entitled to pursue a claim under the Redundancy Payments Act.

The Complainant submits that he was paid a redundancy payment which was calculated under the provisions of the UK legislation.  The result of this was that he was underpaid €2,546 when compared to his entitlement under the provisions of the Irish legislation.  The Complainant relies on the exception outlined in Section 25 (1) of the Redundancy Payments Act:

“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) 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, he was domiciled in the State and 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.

(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 in the employment of that employer within the State”.

The Complainant believes that he can avail of the exemptions outlined above as he was “legally required to report to an Irish address throughout the entire length of my employment”.  The Complainant also states that he was legally required to attend the Dublin office if so requested.  He never received any notification of any change to this. The Complainant submits that although he was physically located outside the State, he would be considered inside the State for the purpose of redundancy payments. 

The Complainant submits that Section 25(3) of the Act specifically provides that his period of employment with the Respondent should be deemed to have been in the service of the employment of the Respondent within the State.  The Complainant was bound to adhere to Irish employment law during his employment and there was no ambiguity about the fact that his contract of employment contained that provision.  The Complainant believes that the fact that the Respondent did not require him to attend the Dublin office should not hinder his claim under the Redundancy Payments Act.

The Respondent’s position is that the Complainant is a UK citizen and never lived in the Republic of Ireland for the duration of his employment with the Respondent.  He does not have a PPS number and never paid PRSI or PAYE in Ireland.  His original contract of employment was issued from the registered HQ of the Respondent which is located in Ireland. 

The Complainant originally expressed a desire to move to Ireland and this was delayed due to COVID-19.  The Complainant chose to remain in the UK and the Respondent accommodated this.  For the entire duration of his employment the Complainant was based in the UK and paid through the UK and subject to UK taxation rules.  The Complainant had a period of sick leave and was paid in line with the UK guidelines and he never raised any issue in relation to this.

The Complainant’s position was at risk of redundancy and the Respondent sought legal advice from both UK and Irish employment lawyers.  The consistent advice was that the Complainant was a UK employee and not entitled to be treated under the Irish  redundancy legislation.  The Complainant was made redundant and received a redundancy payment under the terms of the UK legislation.

It is the Respondent’s position that the Complainant has no legitimate claim under the provisions of the Redundancy Payments Act 1967 – 2014.

This complaint is seeking adjudication by the WRC under Section 39 of the Redundancy Payments Act, 1967.

Section 7(2) of the Redundancy Payments Acts outlines five different scenarios where “an employee who is dismissed shall be taken to be dismissed by reason of redundancy if [for one or more reasons not related to the employee concerned] the dismissal is attributable wholly or mainly to…”

(a)    The fact that his employer has ceased or intends to cease, to carry on the business of which the employee was employed by him, or has ceased to intends to cease, to carry on that business in the place where the employee was so employed or... 

(b)    The fact that the requirements of that business for employees to carry out work of a particular kind in a place where he was so employed have ceased or diminished or are expected to cease of diminish, or… 

(c)     The fact that his employer has decided to carry on the business with fewer or no employees whether by requiring the work for which the employee has been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or … 

(d)    The fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or… 

(e)    The fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained. 

The facts in relation to this case are very clear.  The Complainant worked for the Respondent from 05/01/2021 until the Complainant was made redundant on  07/11/2023.  He was paid a  statutory redundancy payment in line with the  relevant provisions of the UK legislation.

The Redundancy Payment Act, 1967 Section 7(1) gives a general right to redundancy: “An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided –

(a)    He has been employed for the requisite period, and

(b)    He was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966 immediately before the date of the termination of his employment which was so insurable in the period of two years ending on that date.”

I have carefully considered and reviewed the documents, and evidence provided at the hearing.  At the hearing the Complainant confirmed that he has never paid any income tax or social welfare payments in Ireland.  The Complainant also confirmed that he was not aware of the provision in Section 7(1)(a) of the Act, outlined above.

It is clear that the Complainant does not fall under the provisions of the Act and therefore his appeal fails.

I have decided that the Complainant does not fall under the provisions of the Redundancy Payments Acts 1967 – 2012 and his appeal fails.

Redundancy payment.  Social Welfare contributions.