FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : INTEC BILLING IRELAND (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - ANGELA LALLY (REPRESENTED BY GILVARRY & ASSOCIATES SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer Decision No. R-156859-PW-15.
BACKGROUND:
2. This is an appeal of an Adjudication Officer's Decision made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on the 13 October 2016 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Intec Billing Ireland of the Decision of an Adjudication Officer given under the Payment of Wages Act 1991 (the Act). Ms Angela Lally claimed that her former employer had breached the Act when she was not paid her statutory eight weeks’ notice on the termination of her employment. The Adjudication Officer found in favour of her complaint and awarded her the sum of €6,092 in compensation.
In this Determination the parties are referred to as they were at first instance. Hence Intec Billing Ireland is referred to as “the Respondent” and Ms Angela Lally is referred to as “the Complainant”.
The Complainant was employed by the Respondent from 2ndNovember 1998 until 30thNovember 2014.
The Dispute
Mr Myles Gilvarry Solicitor, Gilvarry & Associates Solicitors, on behalf of the Complainant, contended that the Respondent failed to pay the Complainant her eight weeks’ statutory notice on cessation of her employment. He accepted that the Complainant was not fit to work during the notice period, however, he contended that the Complainant was entitled to be paid.
Mr John Brennan, Ibec, on behalf of the Respondent submitted that (i) the claim was out of time; (ii) she was out sick at the time and therefore was not available for work and (iii) she had already referred a claim under the Minimum Notice and Terms of Employment Act, 1973. At the hearing of the appeal the Respondent informed the Court that it was waiving the timing issue and was not pursuing that aspect of its appeal. As the Complainant failed to appear before the Employment Appeals Tribunal for the hearing of her claim under the 1973 Act,the case fell for lack of prosecution.
Mr Brennan said that the Complainant has been paid in accordance with its sick pay scheme from 3rdFebruary 2011 until 16thAugust 2011, following which its income protection insurance providers, Zurich Insurance, paid her 50% of salary under its scheme from August 2011 until 29thFebruary 2012. Zurich ceased payment to her from October 2012. The Complainant appealed this decision with Zurich Insurance.
The Respondent stated that both the Company’s Doctors and the Complainant’s GP certified her as medically unfit to work during the period in question. The Respondent submitted that it had no statutory obligation to pay her during the notice period as the Complainant was not available to work due to illness. In support of this contention, Mr Brennan citedtwo cases where the Employment Appeals Tribunal upheld this position,viz.McLoughlin v D.N.U.LtdM 744/1987,Lehane v FeeneyUD 868/1987 andMcIntyre v Hendrik Haulage LtdM 2623/1992.
Mr Brennan submitted that for a breach of the Minimum Notice and Terms of Employment Act 1973 to have occurred the loss sustained must be due to the employer's default; he maintained that the decision to cease payment was made by Zurich Insurance and as the Complainant was not ready and willing to work during the period in question there was no obligation on it to pay her.
Conclusions of the Court
In effect the Complainant is contending that the Respondent’s failure to pay her during her period of notice constitutes an unlawful deduction from her contractual wage within the meaning of Section 5 of the Act.
It is not disputed that the Complainant was given eight weeks’ notice on the termination of her employment, such notice was given on 3 October 2014 to expire in eight weeks, on30thNovember 2014. However, she was not paid during this period.
It is also not in dispute that the Complainant was not fit to work during this period.
The Second Schedule of the Minimum Notice and Terms of Employment Act 1973 provides that where an employee is absent due to illness during the notice period, although entitled to notice, as the employee is not able to work he/she has no entitlement to pay:-
- Paragraph 4
An employer shall not be liable to pay to his employee any sum under paragraph 3 of this schedule unless the employee is ready and willing to do work of a reasonable nature and amount to earn remuneration at the rate mentioned in the said paragraph 3.
Section 12 of theMinimum Notice and Terms of Employment Act 1973 provides that where anemployee refers a claim under the Act, the Tribunal (as it was then) may award to the employee compensation for any loss sustained by him by reason of the default of the employer.
The Court is satisfied that the Respondent was not in default and as the Complainant was not ready and willing to work during the period of her notice. Therefore there was no obligation on the Respondent to pay her during this period.
Consequently, the Court does not accept that there was an unlawful deduction from the Complainant’s wages.
Determination
The Court upholds the Respondent’s appeal and the Adjudication Officer’s Decision is overturned.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
LS______________________
28 October 2016Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.