Ruairi Quinn (Dublin South East, Labour)
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Question 65: To ask the Tánaiste and Minister for Enterprise, Trade and Employment if she has examined the questions raised with her by a person (details supplied) who is one of 40 staff who were left without wages and holiday pay by a company; the action she has taken to ensure that the workers will receive their full entitlements; and if she will make a statement on the matter. [3951/09]

Liz McManus (Wicklow, Labour)
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Question 72: To ask the Tánaiste and Minister for Enterprise, Trade and Employment the steps she is taking to ensure that all staff of a company (details supplied) will be paid outstanding wages, holiday pay, notice and redundancy moneys; the situation on payment of wages and redundancy at the company; if she has met with the company staff and board of management; if not, if she plans on doing so; and if she will make a statement on the matter. [4073/09]

Billy Kelleher (Cork North Central, Fianna Fail)
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I propose to take Questions Nos. 65 and 72 together.

I have no role in the day-to-day operation of individual companies, and as such have not met with staff or management of the company concerned. However, I understand that the Tánaiste has received representations on the matter and that the Department raised the matter with Enterprise Ireland, who have a relationship with, and have provided support to, the company. Enterprise Ireland, in turn, has been in contact with the company and has advised that, as the company is now in breach of its grant aid agreements, they have formally revoked and are seeking recovery of grants paid to the company and have cancelled unpaid grant aid not yet drawn down.

In relation to the specific issues raised by the Deputy, there are a number of different aspects that arise and these are dealt with separately as follows.

Redundancies

Section 11 of the Redundancy Payments Act 1967 provides that the following two conditions must apply for a cessation of work to be regarded as a lay off:

First, that it is reasonable in the circumstances for the employer to believe that the cessation of employment will not be permanent, and,

Second, that the employer gives notice to that effect to the employee prior to the cessation.

Under the legislation, if a lay off exceeds 4 weeks, it is open to an employee to seek a determination that in fact a redundancy has taken place. In situations where there is a dispute about whether or not a redundancy has taken place, or where the employer is simply silent on the subject, the matter may be referred — by an employee, a group of employees, or their representatives (e.g. a trade union) to the Employment Appeals Tribunal (EAT) for a determination. It would be open to an employer to appeal a determination of the EAT within 21 days to the High Court. Officials in my Department have advised staff of the Company of the availability of this option.

If the EAT determines that a redundancy has taken place — and if there is no appeal or an appeal fails — and if the company refuses to pay or is not in a position to pay redundancy entitlements, the Department of Enterprise, Trade and Employment can at that stage pay the employee(s) their minimum statutory redundancy entitlements in full. The Department will then follow up with the employer to recover that element of the payment, which the State is entitled to get back.

Payment of wages

The Deputy also raised the matter of outstanding wages and holiday pay. Section 5(6) of the Payment of Wages Act, 1991, states that the non-payment of wages properly payable by an employer on any occasion will be regarded as an unlawful deduction of wages. Employees may bring complaints in relation to matters under this legislation to the Rights Commissioner Service and staff have been advised accordingly. If a Rights Commissioner decides that the complaint is valid, an employer can be ordered to pay compensation. The employer can appeal the decision of the Rights Commissioner to the Employment Appeals Tribunal within 6 weeks. If a decision of the Rights Commissioner is not appealed or the appeal fails and the decision is not enforced by the due date by the employer, the employee(s) affected may enforce the decision or determination through an Order of the Circuit Court.

Insolvent company

The Insolvency Payments Scheme, operated under the Protection of Employees (Employers' Insolvency) Act, 1984, and administered by my Department, provides for the payment of certain wage-related entitlements where an employee's employment is terminated as a result of the employer's insolvency. In addition to minimum statutory redundancy entitlements, payments can also be made in respect of arrears of wages, sick pay, holiday pay, minimum notice, etc.

However, claims under the Scheme can only be processed if a company is legally insolvent within the definition of the Act and a "relevant officer" — normally a receiver or liquidator — has been appointed. Relevant Officers can submit a certified claim on behalf of employees on statutory forms, which are available from the Department.

As the Deputy is aware, the National Employment Rights Authority (NERA), which is responsible for monitoring compliance with Employment Rights Legislation, can provide additional information on employment rights obligations and entitlements. NERA can be contacted by telephone on 1890 80 80 90 (Lo call) while the Authority's website, www.employmentrights.ie, could also be usefully consulted.