UD876/2015

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD876/2015

CLAIM(S) OF:                                                                                            

Eric Kinziger                      -claimant

against

Marketo Emea Limited           -respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. T. Ryan

Members:     Mr. A. O'Mara

                     Mr. J. Dorney

heard this claim at Dublin on 28th June 2016

Representation:

Claimant:         Mr. Eamonn Hanrahan, E.M. O'Hanrahan Solicitors, 31 Fairview Strand, Fairview, Dublin 3

Respondent:    Mr. Des Ryan B.L. instructed by Matheson Solicitors, 70 Sir John Rogerson’s Quay, Dublin 2

Preliminary Issue:

It was the respondent’s case that the claimant did not have the requisite 52 weeks continuous service to bring the claim under the Acts.

It was agreed between the parties that the claimant’s employment commenced on the 7^th July 2014. It was the respondent’s case that the claimant was dismissed on the 19^th June 2015 on grounds of gross misconduct and therefore was not entitled to notice however in the spirit of generosity and goodwill the respondent paid the claimant minimum notice according to the provisions of the contract of employment. The contract provided for the giving of four weeks notice by either party to the contract at clause 18.1. Clause 18.3 stated that the company reserved the right to make payment in lieu of notice and when exercised the employment would terminate with immediate effect. It was the claimant’s case that the period of contractual notice should be considered as service despite the company paying him in lieu of notice thus brining his service beyond the 52 weeks required.

The Tribunal received submissions from both parties surrounding the issues outlined.

Determination on Preliminary Issue:

Section 1 of the Unfair Dismissals Acts 1977 to 2007 defines the date of dismissal -

(a)    where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973 , the date on which that notice expires.

The claimant’s contract of employment stipulates at clause 18.3 that:

Any notice to be given pursuant to this clause shall be in writing. The Company reserves the right to make payment of salary in lieu of such period of notice. Where the Company exercises its right to pay you in lieu of notice, your employment will terminate with immediate effect and you will not be entitled to any further payments or benefits from the Company. The Company also reserves the right to require you, and you hereby agree if so required, not to attend work during any such period of notice.

The Tribunal considered the respondent’s submission that the part of this section which states:

“where the company exercises its right to pay you in lieu of notice, your employment  will terminate with immediate effect and you will not be entitled to any further payments or benefits from the company”  

does not operate to circumvent the strict notice requirements set out in the Act.

An employer and employee cannot “agree” to disregard a statutory construct- in other words to disregard the provisions of the date of dismissal as defined in the Act.

The Tribunal notes from Dismissal Law in Ireland by Mary Redmond para. 21.73:

“Under s.1 of the Unfair Dismissals Act 1977, the date of dismissal is defined as the date on which a notice of termination expires or would have expired where the notice is, or would have been, in accordance with the contract of employment or with the Minimum Notice and Terms of Employment Act, 1973, whichever is the greater.”

The Tribunal determines that clause 18.3 does not operate to limit the claimant’s entitlement to contractual notice to which the claimant was entitled to under the Act.

If the legislature had intended that the payment of the required notice in monetary terms could reduce the protection afforded by the Act then it would have set this out accordingly in the Act.

The Tribunal finds that the claimant has the requisite service to bring the claim under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)