ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00057462
Parties:
| Complainant | Respondent |
Parties | Anne Dorney | Pmd Device Solutions Ltd T/ A Pmd Solutions. In Liquidation. |
Representatives | Appeared In Person | No Appearance by or on behalf of Company or Liquidators |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00069810-001 | 06/03/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977(withdrawn at hearing) | CA-00069810-002 | 06/03/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00069810-003 | 06/03/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00069810-004 | 06/03/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00069810-005 | 06/03/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00069810-006 | 06/03/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00069810-007 | 06/03/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00069819-001 | 06/03/2025 |
Date of Adjudication Hearing: 09/03/2026
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 6 of the Payment of Wages Act, 1991.
Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
On March 6, 2025, the Complainant, Ms. Anne Dorney former Chief Compliance Officer of the Respondent Company submitted seven complaints to the WRC which arose from her period of employment 1 October 2013 to 23 December 2024. The Complainant confirmed that PMD Device Solutions Ltd was in liquidation and named David O’ Connor, BDO as the Liquidator. Later that evening, the Complainant submitted a claim for Constructive Dismissal and named BDO as the Liquidator. These complaints were merged as ADJ 57462 for hearing and decision. On 11 March 2025, the complaints were notified to the named company at the registered address at Model Farm Road, Cork. By 26 June 2025, the email given as a company contact was found not to exist. On 22 July 2025, BDO contacted the WRC, introduced their interest as Liquidators, and raised a concern that while the Liquidation process was underway and employees were being credited with payment of arrears in wages, holiday pay, and minimum notice, BDO were aware of “Double claims “ We are concerned that employees are attempting to double claim through the Department. Please note that all employee claims for unpaid wages etc. have been completed at this stage. I would also be grateful if the liquidator could be notified in relation to any ongoing or future claims in relation to the Company as we have not been notified in relation to any claims to date. This was followed by: Can you please advise on who the employees are that are awaiting a hearing date? As advised before, all employee claims have already been processed in full by the Department and similar to the above no further awards should be given to any employee in relation to redundancy, arrears of wages / holiday pay, and statutory minimum notice. On July 30, 2025, BDO were notified of the Complainants ongoing case progression. I can confirm that names of the complainant’s awaiting a hearing date are Ann Dorney (ADJ 00057462) and XXXXX. I have uploaded your correspondence to the files for the attention of the Adjudication Officer assigned to these cases and I have shared this with the complainants for each open case. You will also be informed of the hearing details unless the complainants decide to withdraw. Both Complainant and Liquidator were invited to a scheduled hearing set for 9 March 2026. From that request, the Complainant submitted large volumes of documents including historical documentation pertaining to an injunction sought at the High Court to preserve her employment during 2024. The Liquidator did not submit any responding documentation and did not attend the hearing. On the day of hearing, CA-00069810-002, the claim under Section 11 A of the Protection of Employment Act, 1977 was withdrawn. The Complainant took the oath to accompany her evidence. During the hearing, it became clear to me that the circumstances of the case may well have been interspersed with periods of self-employment and were therefore confusing on delineation of employment status in terms of the complaints live before me. I endeavored to ascertain the parameters of employment. I inquired into the status of the High Court injunction. I also inquired on the impact, if any the Liquidators reference to “double payment “had on the claims. I asked this as the complainant confirmed payment for arrears in wages, holiday and notice pay. I asked the complainant to identify the date attributed to her redundancy. The Complainant presented her case in the company of her husband. It was clear that for at least a time in 2024 she had legal representation up to and including Counsel. Ms. Dorney presented herself as a litigant in person and was welcomed as such.
At the conclusion of the hearing, I requested clarifying documents on all of the above. Once received, these were shared with the Liquidator, without response. This case comes to hearing set against a background of sustained corporate relationship breakdown interspersed by a period of extended sick leave. |
Summary of Complainant’s Case:
The Complainant introduced her employment with PMD Device Solutions Ltd as commencing on 1 October 2013 and ending on 23 December 2024. She had worked as Chief Financial Officer followed by Chief Compliance Officer in return for €13,666.66 per month, full time work. She was also a Company Director and 9.41% shareholder, alongside a considerable number of unvested warrants. Ms Dorney outlined some context and background on the ground floor of the startup respondent company in 2012. She had been early investor from 2012 onwards. There was a disparity in the reported commencement of employment date on the complaint form and the written submission. The Complainant gave. “I commenced paid employment with PMD Device Solutions ltd on or about 6 December 2015 “ as Chief Financial Officer (CFO) as opposed to 1 October 2013 on the complaint form. In 2021, she moved to her current role on a salary of €154,000. In April 2023, increased terms were proposed and sanctioned at board level but never paid. The Company was working towards a listing on the Nasdaq exchange in Stockholm and achieved this in January 2024. Problems arose during preparation for a pre audit for new certification in the Canadian market which resulted in a “corporate growing apart ““for the complainant and her CEO. The complainant outlined that she was requested to assemble her own exit strategy, which she resisted. The CEO ceased speaking to her from the closing days of January 2024. “Mr A, CEO advised me that I was effectively dismissed from the role and that I would no longer be responsible for my reporting lines ……. “ On 4 March,2024 the complainant was invited to participate in mediation by the Board of Directors, which was unsuccessful. A follow up pre audit was completed successfully. The Complainant chronicled the climate of change in her day-to-day work, where she felt edged out and ceased holding authority for approvals in banking. An application for Injunction followed at the High Court “To stop the company terminating my employment “ Commercial Mediation followed without success. The Complainant detailed that she was brow beaten to submit her resignation on foot of the CEOS tentative resignation. On 10 October 2024, the complainant resigned as Board Member. On 11 October 2024, the complainant resigned from her substantive post and refused to sign a waiver of her rights in the face of outstanding arrears. On October 15, 2024, the complainant sought to resile her resignation “As I was forced to resign under undue pressure “ She proceeded on sick leave until she received notification of company liquidation at the end of December 2024. At the time of writing this submission in February 2026, the complainant recorded that. “I have no insight into the current position of the liquidation. The Liquidator has failed to respond to my communication on many occasions “
The Complainant outlined that a pay slip for September 2024 was not actioned for €7,582.89, nett pay. This now amounted to unpaid wages. She also sought €14, 935.34, gross, in cesser pay for annual leave. CA-00069810-003 Payment of Wages Act, 1991 The Complainant sought payment for accrued but unpaid expenses of €3,165.44. CA-00069810-004 Payment of Wages Act, 1991 The Complainant outlined that the Board of Directors approved a salary and pension increase from April 2023 which never manifested in payment. She claimed €25, 987.50 gross pay. CA-00069810-005 Payment of Wages Act 1991 The Complainant claimed €25, 647.88 which sought have been received on 31 December 2024. This comprised unpaid pension payment of €23,981.22 and pension payments from August and September 2024 which went unpaid to the pension provider at € 1,6666.66. CA-00069810-006 Payment of Wages Act, 1991 The Complainant claimed €85,008.00 in the context of a recommended bonus payment for March 2024, which remained unpaid. CA-00069810-007 Payment of Wages, 1991 The complainant claimed €502.67 in retained illness benefit from October 2024. She should have received this payment as she was not paid a salary consistent with that period. CA-00069819-001 Claim for Constructive Dismissal which occurred on 23 December 2024 The Complainant submitted that she had to leave her job due to the conduct of her employer on 23 December 2024. Her role was Chief Compliance Officer which constituted management of the quality and regulatory team. She was also the Data Protection Officer. The CEO, Mr A began to distance himself from the complainant from June 2022, following a board decision. During 2024, the situation deteriorated further and the complainant experienced significant ill health. The Complainant attributed her constructive dismissal to the date 26 January 2024. The Complainant and Mr A entered private commercial mediation which was unsuccessful. The Complainant served an injunction on the company to retain her position. When I requested how this had progressed? the Complainant forwarded the Completion note from Counsel: High Court record re 2024/2372P dated 24 March 2025 “Motion and action were struck out with an order for Plaintiffs costs against the company. Costs to be adjudicated in default of Agreement “ Reference was made to the Liquidators. The Complainant indicated that all staff received letters of termination dated December 2024. She was informed that she would not receive one as Mr A, CEO “would not agree to issue it “
The Complainant then changed her viewpoint on how the employment had ended for her on her complaint form dated 6 May 2025. “The decision to dismiss me took place prior to any hearing being convened pursuant to Section 14.2 of my contact of employment and/ or the employee handbook.
I believe and am advised that the purported termination of my contract of employment is unlawful and constitutes a breach of contract under common law, that the basis for the purported unilateral termination of my contract of employment is untenable in circumstances where the company has failed to identify, establish or set out allegations of gross misconduct which may have given rise to a decision to dismiss.” As there was clearly an overlap of a completed redundancy, I asked the complainant to provide what papers she had in her possession surrounding redundancy, Ms Dorney helpfully submitted the application for redundancy which covered 1 October 2013-22 December 2024 and carried a weekly wage of €2961.54 dated 23 April 2025. This was processed by the Liquidators and resulted in a payment made directly from the Insolvency Fund to the complainant in June 2025 and informed the complainant’s decision to withdraw CA-00069810-002 before me. She had previously maintained that she had been precluded from applying for statutory redundancy. Evidence of the Complainant under oath: The Complainant gave evidence that she first worked at the startup company in 2013 in an unpaid, voluntary capacity following her retirement from the banking sector. She invested heavily in the company over 11 years, which had sprung into being from a project launched during third level education in 2012. The Company CEO, Mr A, 3 Engineers, A Quality Manager were the early leaders. The Company benefitted from Third level endorsement and support. The Company grew from 14 -26 employees in the manufacture of respiratory monitors with health service contracts. The Company jumped in value to 89 m early in 2024 following Nasdaq bell on 16 January 2024. This was followed by a breakdown in the working relations between the complainant and CEO, Mr A, whose attitude towards her had changed over the previous 18 months. He encouraged her to consider “think of another role ““that she was not competent “She attributed the statement “He was tired of looking at me “.to Mr A. Pay and benefit increases recommended in 2023 were not honoured. The Company did not advance a demotion or activate their disciplinary procedure outlined in the handbook. The Complainant rejected the suggestions levelled at her and told Mr A that she was not prepared to leave her role in the company or her additional responsibilities at the business. The pay slip generated for September 2024 was marked €7, 478.73 nett but not paid as usual on 30th of the month. She queried the nonpayment but did not resolve the matter then overtaken by her sick leave throughout October / November 2024. Her resignation was forced by Mr A at 5.15 am on 12 October 2024 on threat of his own resignation. A resignation at that level in a public listed company would “look bad “ She was not prepared to leave without a severance, and this was denied. This time coincided with a time of intense personal loss. On 15 October 2024, Ms Dorney sought to withdraw her notice, and this was denied. Her authorisation for company banking was withdrawn by the company, which by then was owed a substantial amount from creditors. The Complainant expended €3,165.44 on a combination of office supplies and A Post spends over the year December 2023 -December 2024, none of which had been reimbursed to her. The Complainant submitted that the Board had sanctioned increases in salary and pension which had accrued but remained unpaid from 2 June 2023. This was paused as “We were watching cash flow “ The Complainant submitted that Mr A, CEO had given an undertaking these would be paid. Pension contributions were not transferred to the main pension fund from October salary 2024. Bonus earned on reaching KPIs 2022-2023 was not paid in 2024 and fell for payment. In response to my queries bonus had not been paid 2020-2024 years. The Complainant disputed ever leaving employment as her sick leave post October 2024 had been recognised by the company up to and including retention of her DSP payment claimed. Redundancy payment received covered 21 October 2013 to 22 December 2024.
|
Summary of Respondent’s Case:
There was no appearance at hearing by the Liquidators. It is common case that the Company entered liquidation on 14 February 2025. The sole record I have from the Liquidators centred on the confirmation of Liquidation and the concern expressed by them that former employees of this company were engaged in double claims.
|
Findings and Conclusions:
I have been requested to reach 7 decisions in this case. in reaching these decisions, it has been necessary to seek a large volume of missing information from the complainant’s papers. as the company was placed on notice of bankruptcy on 22 December 2024 followed by liquidation dated 14 February 2025, the parties will appreciate that it has taken me some time to ascertain a correct chronology from which I can safely apply the law to the facts adduced in evidence. in reaching my decisions, I have made a careful consideration of all I have heard and read. the complainant comes to this case with a number of strings to her bow. while I appreciate she carried the responsible roles of board member, company director and data protection officer, it is her sole role of employee which my jurisdiction permits me to examine. I find this employment commenced as chief financial officer on 6 December 2015 on a salary of €140,000 per annum, paid monthly in arrears. the complainant’s gender was incorrectly captured on the contract. the complainant signed her agreement to this contract of employment, having confirmed she received legal advice. the complainant, “if not previously terminated “was expected to work to the end of the month of her 65th birthday month, which was November 2023. no further successor contract was exhibited by her. the revenue reports captured employment in 2019, which reflects the transitional post of chief compliance officer. this salary was accompanied by commission. “Commission will be made up of a bonus and sales commission with the former paid annually and in arrears and the later (sic) paid quarterly and in arrears. bonus will only be paid if 50% minimum of kpi targets have been achieved and will be paid pro rata after that “ years 2020 to 2022 were delineated on the contract. share options were accrued in accordance with section 9. annual leave 30 days and provision for cesser pay on termination. sick leave: two weeks for any illness, with a discretionary exceptional need’s payment of up to 8 weeks during a calendar week as a top up payment to dsp payment for illness the complainant has submitted that her employment was terminated on 23 December 2024. she explained that all her work colleagues, with her being the sole exception, were provided with letters of redundancy which incorporated that date. in her unchallenged evidence, the complainant said she was denied this letter. however, she confirmed in evidence and through supplementary documents provided to her by the liquidator that she had received €10, 710.00 gross payment and €5, 863.43 in respect of unpaid wages, minimum notice and annual leave from the insolvency fund. she also received a statutory lump sum payment in redundancy €14,088 in June 2025 from the fund. the complainant has raised her concern that as these payments were in train with the liquidator. she sought guidance from the WRC on how these payments would affect her claim active from 6 March 2025. she was surprised not to receive a response. I went back in the file to capture that period and can identify the question being asked. however, the WRC cannot advise any party to an employment dispute. it is a point of concern for me that the complainant was absent from the business on certified sick leave as she appeared to miss out on workplace developments at this time. the corporate context and background to this case is bankruptcy followed by liquidation in February 2025. the long title of protection of employees (employers' insolvency) act 1984 manifests as:
an act to confer, on the insolvency of employers, certain rights on employees, to amend certain enactments relating to the rights of employees and to provide for other matters (including offences) connected with the matters aforesaid. by virtue of the protection of employees (employers' insolvency) act 1984 (amendment order) order 1988 (s.i. no. 48 of 1988), the application of the act was extended to employees who had attained the age of 66 years and who were in employment which, but for the age of the employees, would be insurable for all benefits under the social welfare acts. this places the complainant in proximity to the insolvency fund as a guaranteed institution. jade Barry and Cathal O’Reilly v minister for social protection and Stephen Tennant notice party, court of appeal [2019] IECA178 section 6(2) 2) (a) subject to paragraph (b) of this subsection, the following are debts to which this section applies— section 6(2) (xiv) refers to the payment of wages act 1991 any amount which an employer is required to pay by virtue of a decision by way of order of an adjudication officer] under section 6(2) of the act of 1991 or a determination by or the labour court] under section 7(1) of the act of 1991 and made, in any case, not earlier than the commencement of the relevant period provided that a claim in respect of the amount to which the decision or determination refers has not been made under another provision of this section,
it appears to me that the first in time claim of 6 March 2025 should have been permitted to run prior to the claims being processed under the social insurance fund. it may unfold that an early settlement under the other sub sections of section 6(2) may have a negative impact on the complainants’ instant claims. it is not that she is prohibited from progressing her claims, but her earlier declarations on submissions to the social insurance fund have complicated matters. CA-00069810-001 payment of wages act 1991 the complainant has sought payment of unpaid wages of €7, 582.89 which fell for payment on September 30th, 2024, but were not paid. she also sought payment for accrued but untaken annual leave as cessor pay. the complainant told the hearing that she had received a pay slip for the salary, but not the pay. I have reviewed this pay slip exhibited by the complainant which placed a monthly salary earned as €12, 833 section 1 of the payment of wages act 1991 defines wages as “Any sums payable to the employer in connection with her employment “ Sullivan v Dept of education [1998] ELR 217 moved to recognise a properly payable allowance as properly payable from the outset. this was approved in the high court case of Balan’s v Tesco Ireland ltd [2020] 21 ELR 125. in the instant case, I find that the complainant completed her work pattern for September 2024. however, I cannot establish a trace of payment in that regard. I have studied the pay slip and am struck by the disparity in the reported wage on the insolvency fund forms and the pay slip. the complainant outlined a monthly wage of €13, 666 on the WRC complaint, €2961.54 on the insolvency claim forms and €23, 692.31 I find that the monthly salary was €12, 833 as additional expenses mentioned are not calculable as wages. I find, based on unchallenged evidence that the amount of €12, 833 was properly payable gross to the complainant for her work in September 2024 and this was an illegal deduction in wages by the respondent. I have established that there was a contravention of section 5 of the act on 30 September 2024. The matter of the annual leave mentioned in the narrative of this claim has been addressed by the Liquidator. I find the claim is well founded. CA-00069810-003 payment of wages act 1991 the complainant has sought €3165.44 in unpaid expenses. Section 1 of the Act precludes my jurisdiction to process this claim as expenses are not covered by the act. the following payments shall not be regarded as wages for the purposes of this definition: (I) any payment in respect of expenses incurred by the employee in carrying out his employment,
the payments referred to by the complainant in sworn evidence covered office expenses and are not linked to wages. I appreciate that the complainant spent this money. however, I do not hold the necessary jurisdiction to decide this claim. the claim is not well founded. CA-00069810-004 payment of wages act 1991 the complainant has sought payment of €25,987.50 in approved salary and pension increase from April 2023. at hearing, the complainant exhibited heavily edited documents which appeared to point to a robust engagement on this topic. my jurisdiction is drawn from section 5 and 6 of these acts in addition to section 41(6) of the workplace relations act 2015. 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. the complainant gave evidence that the increase in salary and pension was approved from April 2023. I looked very hard to find a sign off document where I could readily see that the bonus amounted to a discretionary payment which was properly payable. In HSE and john mc Dermott [2013] hogan j considered a claim made for additional payments due on particular dates from 2007 onwards. salary increases from June 2009 were not paid. in applying mc Dermott to the framing of this complaint, I find this complaint is statute barred as it refers to April 2023 onwards. I find I have no jurisdiction to decide this claim as it is manifestly out of time. in Ervia and deglan Healy pwd 2020, the labour court considered an application made to extend time due to a parallel process of a complaint outstanding at WRC in inspectorate. cementation Skanska (formerly Kvaerner cementation) v Carroll determination dwt0338 is the established test for deciding if an extension should be granted for reasonable cause formulated by this court. here the test was set out in the following terms: -
the length of the delay should be taken into account. a short delay may require only a slight explanation whereas a long delay may require more cogent reasons. the labour court did not establish grounds to extend time. I cannot apply cementation Skanska here as the claim was submitted 6 March 2025, some 26 months after the amounts were submitted as being properly payable .it would not at its height save the claim. this was not actioned as an internal grievance. this claim is statute barred. CA-00069810-005 payment of wages act 1991 the complainant has claimed €25, 647.88 as an approved increase in pension of €23, 981.22 plus her pension payments for august and September 2024 not transferred to her pension fund of €1,666.66 provided however that the following payments shall not be regarded as wages for the purposes of this definition: (I) any payment in respect of expenses incurred by the employee in carrying out his employment, (ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office, (iii) any payment referable to the employee's redundancy, I find that I lack jurisdiction to process this complaint as a result of Section 1 (ii) of the Act above as it is a residual matter which postdated the complainant’s redundancy in December 2024, which predated the liquidation dated on 14 February 2025. Instead, I draw the complainant’s attention to the “Section 7 “application of the Insolvency Payments Act 1984 in ADJ 43822 Liquidator for Abrasives ltd and Minister for Trade and Enterprise which considered unpaid contributions in a pension fund which fell for Ministerial intervention under section 7 over the course of 2008 -2009. This is an incisive decision and one which the complainant may wish to discuss with the Liquidator. I have no jurisdiction to decide this claim. CA-00069810-006 Payment of Wages Act 1991 The Complainant has claimed €85, 008 in unpaid bonus on 31 December 2024. She outlined that the bonus was recommended at 80% against a CEO recommendation of 100%. Once more, I examined the facts on whether this was a sum I could establish was properly payable under Section 5(6) of the Act. In Commercial Law Practitioner, Bonus points, Employers discretion in the determination of bonus payments 14(8) 166-171, 2007, Ray Ryan BL and Des Ryan BL Anchored the potential to receive bonus payment as wages in accordance with the Payment of Wages Act, 1991 “The employer must be rendered liable to pay, either under the contract of employment or in some other way “ They distinguished this from a discretionary bonus were “Until such time as that discretion has been exercised in favour of granting a bonus, no bonus is payable “ Devlin v ESB [2015] 26 ELR 278, nonpayment of bonus was not a contravention of the Section 5 of the Payment of Wages Act, 1991. In Finnegan v J and E Davy [2007] IEHC 18, Smyth J decided that a deferred bonus payment was imposed contrary to his contract of employment on leaving his employment In the instant contract of employment, the bonus and commission structure were defined on page 8 of the contract as enduring over the years 2020, 2021 and 2022. Presumably this was to coincide with the contractual retirement age in November 2023. The claim before me centres on a discretionary bonus. I have considered the documents exhibited but cannot discern that this bonus was declared. I can see that it was discussed. I can see where recommendations were made. However, I cannot see that this sum can be recognised as properly payable wages as I cannot establish a process where the complainants “Bonus will only be paid if 50% minimum of KPI targets have been achieved “ Given that the Complainant gave evidence that the working relationship had completely broken down with her CEO. I cannot find a document which confirmed that bonus had been earned and signed off for payment. I appreciate that in a calamitous workplace certainty in a bonus zone is difficult to tie down, but the law requires certainty in that zone. Cleary v B and Q Ireland ltd [2016] 27 ELR 121 I regret to say that I cannot establish that a bonus payment of €85,008.00 was properly payable to the Complainant. I have not established a contravention of Section 5 of the Act. The claim is not well founded. CA-00069810-007 Payment of Wages Act 1991 The Complainant has sought payment of €502.67 a payment made by the DSP to the Employer in illness benefit which was denied to her. These are not wages under the Payment of Wages Act 1991 and remains a matter for the Liquidator. The claim is not well founded due to lack of jurisdiction. CA-00069819-001 Claim for Unfair Dismissal 23 December 2024 The Complainant outlined the background to her employment from 2013, which has been corrected to 2015. She claimed constructive dismissal from January 2024 when she and the CEO argued on her position. She did not leave employment at that time but instead engaged in a series of mediations and a high court injunction aimed at saving her position from termination, all of which did not meet that purpose. The situation came to a head in October 2024 when faced with the CEOs threatened resignation, she resigned from her position as employee and board member. On 15 October 2024, the Complainant sought to resile this resignation, which was refused on 21 October 2024. She proceeded on sick leave from mid-October to 6 January 2025 (sick certs exhibited) when she learned that the company had been declared bankrupt, followed by liquidation on 14 February 2025. On 6 March 2025, the Complainant claimed constructive dismissal from 23 December 2024 for which she sought the remedy of compensation as she had not found new work. The Complainant exhibited the Liquidators correspondence of 16 April 2025 which confirmed her redundancy from 11 October 2024. This was later changed in the forms I requested from the complainant. These forms were not signed but recorded a cessation date of 22 December 2024. These forms were anchored by an employee declaration “I have been made redundant by my employer “albeit unsigned. In her claim for constructive dismissal, the complainant exhibited the papers presented to the High Court in the injunction application and seemed to change her claim from constructive dismissal to unfair dismissal in the closing paragraph of her claim form. These allegations were taken from 2024 documents targeted at a Higher Court rather than framed against the events in the 6 months immediately prior to Ms Dorney lodging the compliant on March 6, 2025 Section 8 (2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General— (a) within the period of 6 months beginning on the date of the relevant dismissal, The Complainant is entitled to progress a complaint under the Unfair Dismissals Act 1977 and had she chosen the remedy of re instatement or re-engagement it would in theory at least be open to her to re-instate or re-engage with her position and repay her redundancy payment. Repayment of moneys paid under Redundancy Payments Acts, 1967 and 1973. 19.—Where an employee is re-instated or re-engaged by an employer in pursuance of a determination or order under this Act in relation to the dismissal of the employee by the employer, any payments made under the Redundancy Payments Acts, 1967 and 1973, in relation to the dismissal shall be repaid by the person to whom they were made to the person by whom they were made and may be recovered by the latter from the former as a simple contract debt in any court of competent jurisdiction and any moneys due and owing to any person under those Acts in relation to the dismissal shall cease to be due or owing.
The Complainant gave evidence that she had received a lump sum payment in redundancy. The Liquidators statutory forms collaborate this. Dismissal is defined in Section 1 of the Act as dismissal”, in relation to an employee, means— (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, The complainant has recorded her date of dismissal as 23 December 2024. She has not framed her complaint based on constructive dismissal within the 6 months of my jurisdictional window. I must look at the facts of the case and fully respect the complainants right to challenge her dismissal through arguing that the dismissal was disguised as redundancy. JVC Europe Ltd v Jerome Panisi [2011] IEHC 279 The Complainant has not ventilated this argument. Instead, she wrote “Mr A threatened to resign his position as CEO unless I resigned. The Board had no option but to back him. I was put under pressure and resigned as Board member on Oct 10 and then put under duress by Mr A overnight and at 5.17 am on the morning of October 11 I resigned as CCO. I resiled my employee resignation on October 15. I have submitted sick certs since that date. This all amounts to constructive dismissal on Mr as part “ … All staff got termination letters on December 23, 2024. I have requested my termination letter, but the HR Manager advised me that Mr A would not agree to issue it. All communication to the company has gone unanswered.” The Complainant engaged with the redundancy process from April 2025 onwards. She was not compelled to do so. I appreciate she was seeking to access her residual outstanding payments on the unexpected conclusion of employment. It is difficult for me to categorise the complainant’s employment during the period of 7 September 2025 to 6 March 2026. 1 There was a resignation and subsequent application to rescind, which was not successful. 2 The Complainant was not present at the business from mid-October 2024 due to medically certified sick leave. 3 she chased a letter of termination and permitted the Liquidator to process a claim for redundancy. Section 6(4) of the Unfair Dismissals Act 1977 permits the respondent to avail of a defence. (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, (c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute. I find that the dismissal of Ms Dorney is not an unfair dismissal as the company was declared bankrupt and all employees were made redundant. The Company has since entered liquidation. It is not lost on me that the complainant was clearly engaged in a battle royale for a large portion of 2024 to save her job up to and including availing of sick leave from October 2024. However, she has not sought to rely on her resignation of October 11, 2024, to ground her claim for constructive dismissal but insisted on continuing in her employment to December 2024, when the business folded and events overtook her. The Complainant did not resign her position on 23 December 2024, she was made redundant, a defence permitted under Section 6(4) of the Act. The complainant was not unfairly dismissed.
|
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 6 of the Payment of Wages act 1991 requires that I make a decision in relation to the complaints in accordance with Section 5 of that Act. CA-00069810-001 Payment of Wages Act, 1991 The claim is well founded. I have established a contravention of section 5 of the Act. I award the complainant €7582.89 nett as just and equitable compensation. I understand that she has recovered some arrears in salary. The rebalancing of this is for the Liquidator. CA-00069810-003 Payment of Wages Act, 1991 The claim is not well founded. Section 1 of the Act precludes my jurisdiction to process this claim as expenses are not covered by the Act. CA-00069810-004 Payment of Wages Act, 1991 The claim is statute barred. CA-00069810-005 Payment of Wages Act, 1991 The claim is not well founded. Section 1 of the Act precludes my jurisdiction to process this claim. CA-00069810-006 Payment of Wages Act, 1991 I have no jurisdiction to decide this claim. CA-00069810-007 Payment of Wages Act, 1991 The claim is not well founded. I could not establish that the bonus claimed was properly payable.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. CA-00069819-001 claim for unfair dismissal. The Complainant was not unfairly dismissed as her dismissal occurred mainly from redundancy on 23 December 2024. |
Dated: 13-08-26
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
An Employment during bankruptcy and Liquidation. |