Redundancy while posted abroad (EU)

This is a difficult question (I think) as I’m in a very particular situation.

I lived in Ireland and worked for an Irish company for a good number of years. Two and a half years ago I was posted abroad (within in EU), holding an Irish E101 form (now A1 form), meaning that the company continued to pay PRSI in Ireland for me. The E101 expired after two years and under new EEU legislation (European Union Regulation 883/2004), which came into effect on 1st May 2010, the company were now obliged to register and start paying Social Welfare in my country of posting, where I still live.

To the best of my knowledge, they may have completed the registration but I doubt they paid any Social Welfare contribution in my country of posting. I reminded them several times about that with no effect.

Three months after the E101 expired, the company started to have financial problems and stopped paying salaries. I continued working for another 2 months without being paid, I was subsequently laid-off for 1 month and finally I was sent a Certificate of Redundancy (form RP50) with part A and B completed, declaring that the company cannot pay statutory redundancy for reason of insolvency. The company resists being officially declared insolvent and there is no liquidator/receiver appointed.

I sent a claim to the Rights Commissioner in Ireland for the owed salaries and I’m waiting for a reply. I will also submit the RP50 to the Department of Enterprise, Trade and Employment, being aware that I won’t be able to claim any money from the Social Insurance Fund until the company submits a letter from an accountant or solicitor stating that is unable to pay, plus audited accounts.

I have some Euro-million questions for someone with a bit of knowledge in EU/Irish employment law:

1. Do I qualify for redundancy in Ireland, giving that the first condition is: “You must be in employment that is insurable under the Social Welfare Acts. Full-time employees must be paying Class A PRSI.”?

I’m not sure if the insurable condition is “at the time of redundancy”, because I was insured all the years I worked except the last 3 or 4 months when there was a gap due to the company’s negligence. I did receive the last P60 for 2010 with all my contributions for that year.

2. If that’s not the case, where then? Do I qualify for redundancy in the country of posting (where I live)? I did very little research about that, but the first thing they told me is that if I have an Irish contract, which I do, I must make my claim in Ireland. Which I think makes more sense, considering that the company is Irish and it has no business outside Ireland.

3. Will this affect in any way my case to the Rights Commissioner for the unpaid salaries?

I really appreciate some expert comments on this.

The general rule is that the insurable employment condition is at the time of redundancy (and obviously for a period prior to the redundancy).

I'm no expert, although I would have thought that you are now outside the realms of the Irish social insurance system and that your claim for redundancy and for payment of outstanding wages would be made through the country of your posting, where you would now be considered to be employed. I will dig out the Posted Worker Regs and post them up here when i get a minute to see if they say anything contrary to this.

Here's a link to the Department of Social Protection wesbite on International postings, although i don't see your particular circumstances dealt with http://www.welfare.ie/EN/Topics/PRSI/intposts/Pages/intindex.aspx

I did notice the following though, which perhaps should have happened

Q9 HOW LONG DOES AN E101 CERTIFICATE/A1 PORTABLE DOCUMENT LAST?

A An E101 Certificate/A1 Portable Document is valid for any period up to twenty four months. In certain circumstances, it is possible to extend this period. If this is necessary, you should contact International Postings Section, Department of Social Protection. This should be done in advance of the E101 Certificate/A1 Portable Document expiring. This Department will contact the Social Security Authorities in the State where you are working, requesting their mutual consent for you to continue to remain subject to Irish Social insurance for a further temporary period. Confirmation from the authorities in the other State may take time. Please note, extending temporary postings cannot continue indefinitely

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It may be that this is something that you need to negotiate with the Department, and if the company should have, and could have, made an application for an extension of the posting, then it may be that you can get yourself back into the Irish insurance system and have that decision acted upon retrospectively by the Department.

You may also have a civil remedy against the company. Sounds like you need yourself a lawyer. Are you a member of a Union, if so they could have their legal team look at it for you.

Other people that could perhaps help

National Employment Rights Authority 1890 808090
European Commission office 01 634 1111
Irish Migrant Rights Centre 01 889 7570
Immgiration Council of Ireland 01 674 0200

This is from the legislative guide from one of the links above

When it can be foreseen (or becomes clear after the posting period has already
commenced) that the activity will take more than 24 months, the employer or the
person concerned shall submit, without delay, a request to the competent authority
in the Member State whose legislation the person concerned wishes to apply to
him/her. This request should be sent wherever possible in advance. If a request for an
extension of the posting period beyond 24 months is not submitted or if, having
submitted a request, the States concerned do not make an agreement under Article
16 of the Regulations to extend the application of the legislation of the posting State,
the legislation of the Member State where the person is actually working will become
applicable as soon as the posting period ended.

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As the new Regs are only recently in force, it may also be that you can be consdidered under the old Regs if these are more beneficial (don't ask me if this is the case though!!!) See point 15 of this guide http://www.welfare.ie/EN/Topics/PRSI/intposts/Documents/practical_guide_part_1_2.pdf

This is very technical, I would again emphasise that you probably need professional legal advice.

Thanks a lot for the info and advice, this confirms my worst fears. I'll have to start a new chapter and see what can be done in this (posted) country.

First of all I'll try to find legal advice. I'll update the thread if there is anything that might be useful for other people.