ADJ-00046971 - Workplace Relations Commission Nilton De Morais V The Minister for Social Protection

• Jurisdiction: Ireland
• Court: Workplace Relations Commission
• Judgment Date: 04 July 2024
• Year: 2024

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00046971

Parties:

	Complainant	Respondent
Parties	Nilton De Morais	The Minister for Social Protection

	Complainant	Respondent
Anonymised Parties

Representatives Ms. Caoimhne Ruigrok BL, instructed by Free Legal Advice Centres Mr. Niall Fahy BL, instructed by the Office of the Chief State Solicitors

Complaint:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00057776-001	18/07/2023

Date of Adjudication Hearing: 01/12/2023

Workplace Relations Commission Adjudication Officer: Brian Dolan

Procedure:

In accordance with 39 of the Redundancy Payments Acts 1967 -2014 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:

The Complainant commenced employment with his former employer on 5th February 2012. The Complainant was a permanent, full-time employee, in receipt of an average weekly payment of €687.80 for 39 hours of work. It is common case that the Complainant’s case terminated on the grounds of redundancy, as defined by the impleaded Act, on 1st October 2021. As the Complainant’s redundancy arose by virtue of the insolvency of his former employer, he sought payment of his statutory redundancy entitlement from the Respondent on 22nd October 2021. Following a lengthy internal review, a decision from the relevant deciding officer issued on 23rd January 2023. This correspondence stated that the Complainant was not entitled to payment from the Respondent under the terms of the impleaded Act. On 18th July 2023, the Complainant referred the present complaint to the Commission. Herein, he alleged that the Respondent’s refusal to pay the statutory entitlement was incorrect as a matter of law and failed to have regard to the requirements of EU law. In denying the Complainant’s application, the Respondent submitted that the decision of the deciding officer was correct in law and was consistent with all national and European requirements. A hearing in relation to this matter was convened for, and finalised on, 1st December 2012. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. Both issued extensive legal submissions in advance of the hearing. These submissions were expanded upon and contested by the opposing side in the course of the hearing. On the request of the Adjudicator, further submissions were invited in relation to a series of authorities identified as relevant to the factual matrix presented by the parties. Both parties issued submissions following the hearing in this regard, with the final submission being exchanged in February 2024. As there was no material dispute of the factual basis of the submission, and it was common case that the Complainant’s employment was terminated on the grounds of redundancy, no sworn evidence was deemed necessary by the representatives or the Adjudicator. Various preliminary objections as to jurisdiction were raised during the proceedings. These will be discussed individually below.

Summary of the Complainant’s Case:

The Complainant commenced employment with his former employer on 5th February 2012. It is common case that this employment terminated on 1st October 2021. In this regard, the Complainant submitted that his former employer ceased trading on that date, and that as a consequence of the same, this employment terminated on the grounds of redundancy as defined by the impleaded Act. Shortly thereafter, the Complainant was informed that his former employer was insolvent and was unable to fulfil their obligations under the Act. Having regard to the same, the Complainant made an application to the social insurance fund, operated by the Respondent, and completed the required declarations and forms. As part of the process, the Respondent sought confirmation of the Complainant’s legal status regarding residency. By response, the Complainant confirmed that his legal status was not in order for the duration of his employment. By correspondence dated 23rd January 2023, the relevant deciding officer within the Respondent confirmed that as the Complainant was not in insurable employment under the Social Welfare Acts, he was not entitled to payment of statutory redundancy from the scheme operated by the Respondent. By submission, the Complainant, via his representative, stated that the Complainant was clearly and unambiguously made redundant by his former employer. He stated that throughout his employment he made all relevant PRSI contributions and was an “employed contributor” for the purposes of the Social Welfare Consolidation Act 2005. In this regard, the Complainant submitted that as such an “employed contributor”, he was entitled to payment from the Social Insurance Fund, operated by the Respondent, and provided for by Section 27 of the Act, as amended by Section 39 of the Social Welfare Act 1991. Regarding the Complainant’s employment status, he accepted that his residency status was not in order for...