Pat Breen (Clare, Fine Gael)
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Question 121: To ask the Minister for Enterprise, Trade and Employment his views on the failure of his Department to initiate legal proceedings against a company (details supplied) following its failure to pay an Employment Appeals Tribunal award to one of its former employees and prior to it being struck off the Companies Register; and if he will make a statement on the matter. [4765/06]

Pat Breen (Clare, Fine Gael)
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Question 122: To ask the Minister for Enterprise, Trade and Employment the compensatory measures he intends to take for the inaction of his Department over a period of almost two years to initiate legal proceedings against a company (details supplied) following its failure to pay an Employment Appeals Tribunal award to one of its former employees and prior to it being struck off the Companies Register; and if he will make a statement on the matter. [4766/06]

Tony Killeen (Clare, Fianna Fail)
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I propose to take Questions Nos. 121 and 122 together.

The case under reference was received in January 2003. The enforcement unit of the Department, which deals with the enforcement of both Labour Court and Employment Appeals Tribunal determinations, wrote to the former employer requesting payment of the award. No response was received from the employer.

Steps necessary to entail enforcement of the award as part of the general preparatory work for the institution of legal proceedings were taken. Checks as to the precise identity of the employer with a view to ensuring legal enforceability of the determination were made with the Companies Registration Office and the Department of Social and Family Affairs. In addition, legal searches were carried out in the Land Registry, Registry of Deeds, sheriff's office and judgment office to determine if the company had assets against which a judgment may be enforced. In April 2003 the case was then forwarded to the Chief State Solicitor's office for transmission to the State solicitor for the area where the employer ordinarily resides.

The case was listed for hearing in Cork Circuit Court for January 2005. However, the Department became aware that the company was struck off the companies register in November 2004. The effect of a strike off is that the company is no longer a legal entity and cannot be the subject of legal proceedings.

The Department has no function in the operation of the Chief State Solicitor's office or in the services provided by the State solicitors.

The Protection of Employees (Employers' Insolvency) Acts 1984-1991 provide for payment of certain wage-related entitlements, including awards made by the Employment Appeals Tribunal, subject to certain limits and conditions, including time limits. One of the essential conditions of the insolvency payments scheme is the pre-existence of a statutory insolvency situation such as in the definition of insolvency for the purpose of the 1984 Act. This definition covers situations such as liquidations, receiverships, bankruptcies, etc. To qualify for payment under the insolvency legislation any determination of the tribunal would have to have been made in the 18 months prior to a company being formally declared insolvent.

In the case under reference, the Department has no record of the company having been formally declared insolvent in accordance with the legislation and, therefore, the employee would not qualify for payment under the insolvency payments scheme.

Pat Breen (Clare, Fine Gael)
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Question 123: To ask the Minister for Enterprise, Trade and Employment the measures he intends to take to prevent the repetition of a situation whereby a period of almost two years can elapse between an Employment Appeals Tribunal award being determined and a company against which such an award has been made is struck off the Companies Register without legal action being initiated by his Department within that period to recover the amounts due; and if he will make a statement on the matter. [4767/06]

Tony Killeen (Clare, Fianna Fail)
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The enforcement unit of the Department of Enterprise, Trade and Employment deals with the enforcement of determinations coming from the Labour Court and Employment Appeals Tribunal. The initial action is to write to the former employer requesting payment of the award. Where no response is received from the employer steps necessary to entail enforcement of the award as part of the general preparatory work for the institution of legal proceedings are taken. These include checks as to the precise identity of the employer with a view to ensuring legal enforceability of the determination. Such checking involves the examination of records held by the Companies Registration Office and the Department of Social and Family Affairs.

In addition, legal searches are carried out in the Land Registry, Registry of Deeds, sheriff's office and judgment Office to determine if the company has assets against which a judgment may be enforced. Delays may and do arise, such as where an employee is unable to produce tax documentation for example, P45 or P60, which is necessary to facilitate checking the relevant records in the Department of Social and Family Affairs to confirm the employee's legal employer. Where the name on the determination differs from that in the records of the Department of Social and Family Affairs a correcting order from the Labour Court or the Employment Appeals Tribunal may have to be obtained.

Further delays may arise in getting evidence that an employer has received a copy of the determination. These are all measures necessary for a successful prosecution to be undertaken.

When these actions are completed the case is then forwarded to the Chief State Solicitor's office for transmission to the State Solicitor for the area where the employer ordinarily resides to institute legal proceedings. The Department of Enterprise, Trade and Employment has no function in the operations of the Chief State Solicitor's office or the services provided by the State Solicitors practising throughout the State.

Pat Breen (Clare, Fine Gael)
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Question 124: To ask the Minister for Enterprise, Trade and Employment the measures he intends to take to prevent the directors of a company (details supplied) which was struck off forming or becoming directors of other companies while an Employment Appeals Tribunal award remains outstanding on the struck off company; and if he will make a statement on the matter. [4768/06]

Micheál Martin (Cork South Central, Fianna Fail)
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I understand, that the company in question was incorporated on 4 December 2000 and struck off the register on 21 November 2004 and dissolved on 26 November 2004 for non-filing of its annual returns.

There is no provision under existing legislation automatically preventing directors of a struck-off company from being or seeking to be directors of another company. Unless such a person has been disqualified pursuant to section 160 of the Companies Act 1990 or restricted pursuant to section 150 of the Companies Act 1990, he or she is free to remain as or become a director of other companies, notwithstanding the involuntary strike off of a company in respect of which he or she acted as a director.

The Company Law Enforcement Act 2001 introduced provisions for the Director of Corporate Enforcement to bring applications to the High Court to have the directors of a struck-off company disqualified from acting as directors. However, if these directors can show that the struck-off company had no liabilities at the time of strike-off or that any such liabilities were discharged before the date of the making of any application for a disqualification order, then it is most unlikely that a disqualification order will be made by the High Court.

Whether an Employment Appeals Tribunal award remains outstanding has no direct bearing on the operation of the sections of company law previously mentioned. It is a matter for the Director of Corporate Enforcement to determine which, if any, cases he pursues. The Deputy may wish to make a formal complaint to the Director of Corporate Enforcement supplying full details of any liabilities arising in regard to the struck-off company.