High Court of Ireland Decisions

1. The Applicant was employed by Durkan Brothers (Dublin) Limited of Sandford Road, Ranelagh, pursuant to a contract of service in 1978. Initially he was employed in Ireland and in 1984 was given an assignment in America by his employer to develop a construction business on their behalf. It was envisaged that the Applicant would be some two years in America and would thereafter return to Ireland and resume his former role with Durkan Bros.

2. In the event he was directed to remain in America in the service of his employer but at all times it was envisaged that he would return to Ireland at its termination.

3. That employment was terminated in America with effect from the 25th May 1989, that is in excess of four years after he went to America.

4. He still expected to be repatriated to Ireland to resume his employment with his employer here.

5. He brought proceedings against his employer in this country which resulted on the 5th March 1996 in an award, inter alia , for £12,682.80 for wrongful dismissal. Some days before the case was heard his employer went into voluntary liquidation and the liquidator has indicated that the company is unable to meet the award.

6. The Protection of Employees (Employers' Insolvency) Act, 1984 (the Act of 1984) establishes, inter alia , a fund out of which the Minister is obliged in certain circumstances to pay the amount of awards such as the Applicant's. As required under the Act of 1984 the liquidator applied to the Minister for such a payment and by letter of the 12th June 1997 the Minister refused the Applicant's claim made on his behalf by the liquidator.

7. That refusal is the subject of challenge in these proceedings in which the Applicant seeks appropriate reliefs.

8. Section 6(3) of the Act of 1984 provides where relevant as follows:-

9. The relevant portions of sub-section (1) of section 6 are the following:-

10. It is agreed that the Applicant in the present case qualifies under sub-sections (b) and (c) above.

11. Counsel for the Respondent contests, however, that the Applicant qualified under sub-section (a).

12. The other relevant portion of the Act of 1984 is section 3 which provides:-

13. It is agreed that Section 11 does not apply.

14. As will be seen from the foregoing the Applicant is an employee who got the benefit of an award for wrongful dismissal and accordingly qualifies under section 6 (3)(a).

15. However, he must also qualify under sub-section (b) which provides inter alia that the Minister be satisfied on the application made by him that he :

16. Section 3 specifies inter alia :-

17. I have not found, nor could Counsel find, a definition of the phrase "employment which is insurable" for the purposes of section 3. However, the phrase "insurable employment" is defined in section 2 of the Social Welfare (Consolidation) Act, 1981 (the Act of 1981) and Counsel agreed, I think correctly, that this definition applies to the phrase just quoted from section 3 of the Act of 1984.

18. The employments specified in Part 1 of the First Schedule are as follows:-

19. The above category of employments clearly captured the Applicant when he was working in Ireland.

20. With regard to working outside the State section 8 together with regulations deemed made thereunder are relevant. Section 8 of the Act of 1981 provides as follows:-

21. I have been referred by Counsel to the Social Welfare (Contributions) (Amendment) Regulations, 1961 (S.I. No. 139 of 1961) which both Counsel are agreed have been deemed to be regulations made under Section 8 of the Act of 1981.

22. These regulations where relevant provide as follows:-

23. As will be seen, therefore, the limitation on the category of employment set out in part 1, paragraph 1 of the first schedule to the Act of 1981 to the effect that it must be employment "in the State" is suspended in favour of insured persons who are ordinarily resident in the State but who are temporarily employed outside it. They cease to be treated as "temporarily employed outside the State" however after 52 contribution weeks. Thereafter, their employment, in my view, is no longer employment "in the State" within the meaning of that phrase in paragraph 1 of part 1 of the first schedule to the 1981 Act with the result that they are no longer employed contributors for the purposes of the Act of 1981 by reason of the operation of section 5(1)(a) thereof. Not being an employed contributor means in turn that their employment is no longer "insurable employment" as defined under section 2 of the Act of 1981 and this in turn, in my view, means that such employment is not "employment which is insurable for all benefits under the Social Welfare Acts, 1981 to 1984" within the meaning of that phrase as it appears in section 3 of the Act of 1984. It will be recalled that the phrase "employment which is insurable" is not, in terms, defined but that Counsel accepted , I think correctly, that the definition of "insurable employment" in section 2 of the Act of 1981 is also the definition of "employment which is insurable" in section 3 of the Act of 1984.

24. It follows from the foregoing, that the Applicant's claim fails to satisfy the requirements set out in section 6(3)(b) of the Act of 1984, specifically, because the Minister could not have been satisfied that his application was made by "a person to whom (the Act of 1984) applies" which is a necessary prerequisite to qualifying for an entitlement under section 6(3) of that Act.

25. Mr Horan BL for the Applicant makes a further point. He says, that notwithstanding the foregoing, section 5(1)(b) of the Act of 1981 demonstrates that his client has an entitlement to the benefits conferred by section 6(3) of the Act of 1984 because he is insured for life. The relevant sub-section provides as follows:-

26. True it is, that the Applicant once having become an employed contributor remains an employed contributor for his life. That does not mean, however, in my view, that his employment automatically becomes "insurable employment" simply by reason of the fact that he as a life time employed contributor is the employee concerned. This is not, in my view, the meaning of the definition of "insurable employment" in section 2 of the Act of 1981. The nub of that definition is that the employment in order to be "insurable employment" must be such that a person who is employed therein would be an employed contributor. One ascertains whether any employment is such employment by reference to, inter alia , section 5(1)(a) and part 1 of the first schedule to the Act of 1981 as I have set out above. One does not identify "insurable employment" by reference to the status of the employee but rather by reference to the qualifying characteristics of the employment itself. I do not agree, therefore, that the Applicant's employment is "insurable employment" simply because it is the Applicant's employment, as this submission would require me to do. It is insurable employment because it fits the definition of that category of employment by reference to the relevant statutory provisions.

27. Once the Applicant had worked outside the State in such employment for a period in excess of 52 contribution weeks his employment ceased to be insurable employment for the reasons set out above and accordingly the Act of 1984 did not apply to him.

28. Counsel for the Applicant also submitted that pursuant to section 9(3) of the Act of 1984 if it appeared to the Minister that a doubt existed as to whether or not a claim such as was made by the Applicant is allowable he may refer any matter arising in connection with the claim to the Employment Appeals Tribunal. It is submitted that the Minister should have done this and whilst Counsel did not go so far as to say that the Minister's failure to refer the Applicant's appeal under this section was irrational in the sense that would entitle him to a judicial review thereof, he did submit that the Minister should have referred the matter for appeal and that his decision should be set aside on this account. I cannot agree with this submission: in the first place I think there was no doubt as is clear from what I have already said, but even if there were doubt I consider that section 9(3) of the Act of 1984 gives the Minister a discretion whether or not to refer the matter to the Employment Appeals Tribunal. I can see no case for saying that the Minister acted outside his discretionary jurisdiction.

29. In the result the application for judicial review must be refused.