Complainant

Respondent

Parties

Jeremy Smith

Friel Stafford

Representatives

N/A

Paul D Maier BL instructed by Sam Saarsteiner of Clark Hill Solicitors LLP

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00069762-001

05/03/2025

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

CA-00069762-002

05/03/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00069762-003

05/03/2025

The Complainant was the managing director of the company from 1st April 2021 until it entered voluntary liquidation on 24th April 2023. A Liquidator, Tom Murray, was appointed to oversee that process and he is an employee of Friel Stafford.

For the sake of clarity, the Complainant has validly submitted three complaints to the WRC and they are outlined in the heading of this decision. The Complainant referred in submissions to additional grievances, however, the only complaints that have been validly submitted are those outlined in the heading of this decision.

The Complainant submitted the within complaints on 5th March 2025. In advance of the hearing, the Respondent raised preliminary issues relating to the Adjudication Officer’s jurisdiction to hear the substantive issues. Two preliminary issues were identified; the first relates to the name of the Respondent and the second relates to the complaints being out of time. At the hearing, it was explained to all parties that the determination of these issues would affect the Adjudication Officers jurisdiction to hear the complaints and, on that basis, the preliminary issues would be addressed first. If it was found that the Adjudication Officer did have jurisdiction to hear the complaints, then the hearing would be reconvened for that purpose. But if it was found that the Adjudication Officer did not have jurisdiction, then a decision would issue on that basis.

I have decided to conclude this case by way of a decision on those preliminary issues.

At the outset of the hearing, an application was made by the Complainant for the hearing to be heard in private. This was on the basis that the Respondent was alleging fraud against the Complainant and this could be reputationally very damaging. The Respondent opposed the application. The Adjudication Officer decided to hold the hearing in public on the basis that the Complainant had not identified special circumstances such that justice should not be done in public.

The Respondent relied on legal submissions in respect of both of the preliminary issues. The Complainant responded to each of the Respondent’s submissions and gave evidence on oath in support of his position.

The Complainant’s substantive complaints relate to holiday pay under the Organisation of Working Time Act, 1997; notice pay under the Minimum Notice & Terms of Employment Act, 1973 and a redundancy payment under the Redundancy Payments Act, 1967.

The Complainant says that the Respondent’s refusal to honour claims under the above legislation is unreasonable and contrary to statutory and contractual obligations. He also argues that the company was sold during liquidation, triggering contractual entitlements.

Identity of Employer and Respondent identity

The Complainant says that the Respondents assertion that the complaint was filed against the wrong party is a technical argument that ignores the reality of the liquidation process. The Liquidator assumed responsibility for paying employee entitlements and advised the Complainant on claim calculations. He also confirmed that no additional forms were required because details were already on file. The Complainant states that he acted reasonably in naming the Liquidator, who was the operative decision-maker regarding payment of claims.

The Complainant further relies on a statement on the WRC website which he says states that a claim can be made against a liquidator or receiver if a respondent company has gone out of business. He relies on the plain meaning of this statement and believes it covers this situation. The Complainant said that he is surprised that this is an issue because the Respondent has been engaging with the WRC complaints and, in his view, accepts that it is the correct Respondent in correspondence. He cited correspondence from the Respondent to the WRC which he says acknowledges that the claims would be finalised during the liquidation.

Time Limits

The Complainant rejects the Respondent’s assertion that the complaints are out of time. He maintains that the relevant date for the alleged contraventions is 22nd January 2025, when the Liquidator first communicated the amounts of his proposed employee entitlements. Until that point, he says, there was no reason to believe that his statutory or contractual rights would not be honoured.

The Complainant emphasised that throughout 2023 and 2024, the Liquidator assured him that his claims were understood and would be paid in accordance with the law. He pointed to emails where the Respondent advised that no claim forms were necessary because details were already on file. He argued that the Respondent’s later statements suggesting non-cooperation or late submission of claims was misleading.

The Complainant rejects the Respondent’s assertion that these complaints are misconceived or out of time and says that the Respondent’s position mischaracterises both the facts and the applicable law.

The Respondent’s submissions focus on two preliminary objections which, it is argued, go to the jurisdiction of the Adjudication Officer to hear the complaints.

Identity of Employer and Respondent identity

The Respondent contends that the complaints have been made against the wrong entity. The Complainant was employed by Human + Kind Limited, not by Friel Stafford. There is no contractual or employment relationship between the Complainant and the Respondent (Friel Stafford). The Respondent points out that the Complainant was a director of the company and a member of the liquidation committee, and therefore fully aware of the correct employer identity. It is argued that any attempt to amend the Respondent’s name would cause injustice and is prohibited under section 39(4) of the Organisation of Working Time Act 1997.

Time Limits

The Respondent further submits that all complaints are out of time. The Complainant’s employment ended no later than 24th April 2023, the date the company entered voluntary liquidation. His complaint was lodged on 5th March 2025, well beyond the statutory time limits. Under section 41 of the Workplace Relations Act 2015, claims under the Minimum Notice and Organisation of Working Time Acts must be presented within six months of the alleged contravention, with a possible extension to twelve months for reasonable cause. Even with such an extension, these claims are statute-barred. Similarly, the redundancy claim under the Redundancy Payments Act 1967 falls outside the initial 52-week limit and only narrowly within the 104-week discretionary extension, which requires proof of reasonable cause. The Respondent argues that no such cause exists, given the Complainant’s active role in the liquidation and his prior involvement in WRC proceedings.

The Respondent further asserts that the Complainant is not entitled to redundancy because he was a director and paid PRSI at Class S, which excludes statutory redundancy benefits.

In conclusion, the Respondent submits that the complaints are fundamentally misconceived, outside the jurisdiction of the Adjudication Officer, and represent an attempt to divert limited company funds from other creditors. The Respondent requests that all claims be dismissed on these preliminary grounds without proceeding to a substantive hearing.

I will address the issue regarding time limits in the first instance.

The Workplace Relations Act, 2015 (the Act) is the legislation that applies to two of the complaints herein. It sets out the ability of the Workplace Relations Commission (the WRC) to address these matters.

Schedule 5 of the Act describes various pieces of legislation that can be referred to the WRC for dispute resolution. Two of the Complainant’s complaints, under the Minimum Notice & Terms of Employment Act, 1973 and the Organisation of Working Time Act, 1997, are both contained in Schedule 5. This means that the Act applies to both of those complaints.

Section 41 of the Act sets out how an Adjudication Officer should inquire into disputes, and it also prescribes timeframes within which complaints can be made. Section 41(6) and section 41(8) state as follows:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The Complainant has not made any application to extend the timeframe for reasonable cause, rather it is the Complainant’s position that the date of knowledge, namely 22nd January 2025, should be considered the date of contravention as this is when he became aware that he would not receive the entitlements that he expected.

The Complainant’s application form to the WRC in relation to the above two complaints was received on 5th March 2025. That means that the date of contravention must have taken place 6 months before that date. 6 months before the 5th March 2025 is 6th September 2024.

The question for me in this case is what is considered the “date of contravention”. Is it when the Complainant became aware of any alleged breach of his rights, or is it when that breach actually occurred?

Complaint CA-00069762-001 under the Minimum Notice & Terms of Employment Act, 1973

The Complainant’s employment terminated with the voluntary liquidation of the company on 24th April 2023.

It is the Complainant’s case that he was entitled to a 12 month notice period payment, dating from 24th October 2022. On that date he, as director of the company, wrote a letter of termination to himself which stated that the employment agreement offers a twelve month notice period and his employment would be terminated on that basis. The Complainant states that this means he should have received payment in lieu of notice for the period up to and including 24th October 2023. He says that it was not until it was communicated to him on 22nd January 2025 that he would not receive this payment that the contravention of his rights actually occurred.

I do not agree with the Complainant’s position that it was his date of knowledge that can be considered the date of contravention. The plain meaning of the section supports the position that the six month period begins from when the breach actually occurred.

Section 41(6) of the Act is very specific. Unlike other legislation, it does not allow for changes to the time limits for bringing a case to the WRC, as for example section 77(5)(a) of the Employment Equality Act 1998 does. It also does not provide for starting the time limit from the date the person became aware of the alleged breach, or for situations where a delay in making a complaint was caused by an employer’s misrepresentation, as section 77(6) of the Employment Equality Act 1998 does.

The Complainant in this case was awaiting the outcome of the liquidation process before acting on his statutory rights. However, that does not change the date from when those statutory rights accrued or allegedly were breached. It was the Complainant’s choice to await the outcome of that process and the result of that choice is that the within complaint is statute barred.

Taken at it’s very height, even if the Complainant had made an application that there was reasonable cause for extension and had succeeded in that application, the complaint form was received on 5th March 2025 which is more than 12 months from 24th October 2023, when the Complainant states that his notice period ended and is the very last conceivable date when the contravention could have occurred.

Section 41(6) of the Act states that an Adjudication Officer shall not entertain a complaint after the expiration of the period of 6 months beginning on the date of the contravention and I therefore find that I do not have jurisdiction to hear this complaint because it was submitted well outside the time allowed.

Complaint CA-00069762-003 under the Organisation of Working Time Act, 1997

The position is similar in respect of the Complainant’s complaint under the Organisation of Working Time Act, 1997. Any annual leave which accrued to the Complainant in the course of employment, ceased to accrue when his employment terminated on 24th April, 2023. This means that the Complainant would need to have made a complaint in relation to not receiving this entitlement within six months from that date. As it is, the complaint was submitted to the WRC 1 year, 10 months and 10 days from that date, far in excess of the maximum potential 12 month period allowed under the Act.

In the circumstances, I must find that the Complainant did not submit this complaint for adjudication within the time allowed by law and is therefore statute barred from proceeding. 

Complaint CA-00069762-002 under the Redundancy Payments Acts 1967

Section 24 of the Redundancy Payments Acts, 1967 prescribes the time limits within which an employee may be entitled to a lump sum. It states:

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.

Section 24(2A) goes on to say that:

(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.

The above section states that 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 one of the criteria set out in subsections (a) to (c) are satisfied. In the first instance, I must determine the date of dismissal or the date of termination of the employment. I am satisfied, based on the information before me, that the date of termination of the employment in this case is 24th April 2023. The company ceased trading at this point and the Complainants employment relationship with the company also ceased on that date.

It is clear that no payment has been agreed and paid in accordance with section 24(a). It is further clear that the Complainant has not made a claim for the redundancy payment by notice in writing given to the employer within 52 weeks as his complaint form dated 5th March 2025 states “I did not apply for redundancy payments but am aware that I am entitled to them.” I am therefore satisfied that neither section 24(a) or 24(b) are applicable. Similarly, this complaint was not referred to the Director General within 52 weeks of the date of termination and so I find that section 24(c) does not apply.

The Complainant has not made an application under section 24(2A) that there was reasonable cause for a failure to make a claim within the period of 52 weeks and I therefore do not need to consider the position where the extended period of 104 weeks may have been applicable.

On the basis that the applicable time frame is 52 weeks, even if I were to accept the position that the termination of the Complainant’s employment was not until the expiry of the notice period, namely 24th October 2023, the Complainant is still out of time as 52 weeks from 24th October 2023 is 24th October 2024 and that is a considerable period of time away from 5th March 2025 when this complaint was submitted.

The Complainant reiterates the argument that the contravention did not occur until he was made aware in January 2025 that he would not receive a redundancy payment. However, I do not accept this position.

The Oireachtas can choose to change the time limits for bringing cases to the WRC. For example, section 24(3) of the Redundancy Payments Acts, 1967 goes on to provide:

(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.

No provision has been made to provide for a circumstance where the date of knowledge is an operative factor in the time scale and so I am satisfied that this is not a ground upon which the Complainant can rely in order to exceed the statutorily prescribed time frames.

I find that the Complainant did not make a claim for a lump sum before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of his employment and he is therefore statute barred from proceeding with this claim.

Conclusion

In all the circumstances, I find that the within complaints have not been received by the Director General within the prescribed statutory time frames and for that reason I do not have jurisdiction to hear the substantive matters.

As I have found that the Complainant is out of time to make these complaints, it is not necessary for me to continue to make a finding in relation to the name of the Respondent.

For the reasons stated above, I find that the Complainant is statute barred from proceeding and I therefore do not have jurisdiction to hear these complaints.

Statute barred