Background
My complainant, a male EU national, got in touch with my Office about a delay by the then Department of Enterprise, Trade and Innovation in processing his redundancy payment. He claimed that there was a lack of interest on the Department's part in resolving his claim and was looking to be compensated.
He was made redundant in 2008 and had secured a favourable decision from the Employment Appeals Tribunal in relation to his entitlement to redundancy. In March, 2009 he made a claim to the Department to have his redundancy paid from the Social Insurance Fund and notified the Department of the Tribunal decision.
Investigation
The Department said that it issued a letter to his former employer requesting that he be paid for his redundancy or if they were unable to do so to provide documentary evidence to that effect. The employers indicated that they intended appealing the Tribunal decision to the High Court. The Department claimed that until this appeal was finalised, the payment to my complainant could not be processed. The Department stated that despite numerous attempts to contact the employers it was not possible to ascertain whether or not the appeal had taken place.
My complainant told my Office that he had contacted the Department on numerous occasions to try and find out what was happening with his claim but to no avail. The Department informed him by email in May, 2009 that his claim would be put forward for payment and that he should get a cheque in a week to ten days.
My Office received a report from the Department in December, 2009 informing it that the Department had "eventually contacted" his employer who "agreed" that he should get his redundancy payment. In order for his claim to be processed, his employer was now to provide documentation to show he could not make the payment.
I was unhappy with the Department's response and requested further information. I thought that it was unreasonable that the employer could apparently indefinitely delay the processing of the redundancy payment on the basis of a purported appeal to the High Court. My Office questioned the Department on this point. A reply was subsequently received from the Department in which it said that although the required information had not been received from the employer, the Department was confident that my complainant would not be paid by his former employer and as no case was being taken to the High Court, his redundancy payment would now be authorised.
The Department claimed that it could not process the claim because it was unable to establish from the employer whether the Tribunal decision had been appealed or not to the High Court. I suspected that there had to be a timeframe during which an appeal to the High Court could be made. My Office contacted the Tribunal who referred me to rule 105 of the superior courts. Rule 105 states, that an appeal under the Redundancy Payments Act must be made within 21 days, unless an ex-parte application to extend this period has been made. Such ex-parte application must be made within 6 weeks of the Tribunal decision. Notice of the appeal must also be served on the Minister and on all parties to the decision of the Tribunal. This means that the Tribunal and my complainant would have been aware if an appeal was proceeding.
I am advised that there is a large backlog of redundancy claims in the Department. In this particular case I was not satisfied that the delay was solely due to any upsurge in the volume of their work. Also, I was not satisfied that the Department made sufficient efforts to establish whether an appeal was proceeding or not:
The Department should have been aware (or been able to establish) that there was a period by which an appeal must be made, andNotice of an appeal would have been provided to the Tribunal or my complainant within 6 weeks of the Tribunal decision. It should have been possible to find out from either the Tribunal or my complainant if an appeal was proceeding.
My complainant’s redundancy claim was only now being authorised, some two years after he made it, despite the fact that he had made numerous efforts to contact the Department to progress his claim. The Department accepts that he should have been kept informed as to what was happening about his redundancy claim. I concluded that it was only following the intervention of my Office that the Department really concentrated its efforts to process the claim and that there had been maladministration which warranted an apology and redress.
Outcome
The redundancy claim was finally paid. The Department apologised to the complainant for the delay in processing his payment and gave him €400 by way of an ex-gratia compensatory payment.