ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00010540

Parties:

Complaint:

Date of Adjudication Hearing: 21st November 2017

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41 of the Workplace Relations Act 2015 and Section 6 of the Payment of Wages Act 1991 andfollowing the referral of the complaint to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant was employed by the Respondent from 27th July 2015 to 16th February 2017 and his weekly rate of pay was €1,153.85c.

The Complainant was submitting that the Respondent had failed to pay him his minimum notice entitlements in accordance with his written contract of employment at the time of the termination of his employment.

Following some discussion at the Hearing it was agreed the minimum notice period to be given by either party on the termination of the (contract of) employment in accordance with that contract was 2 months.

Summary of Complainant’s Case:

The Complainant said that he was employed by the Respondent as a Sales Director.   He said that his written contract of employment provided for a 2 month period of minimum notice by/from either party on the termination of the (contract of) employment.   The Complainant said that however he did not received payment from the Respondent for this 2 month period.

The Complainant said that by letter of 6th January 2017, he was informed that due to shortage of work he was being temporarily laid off work in accordance with the provisions of his written contract of employment.   He said that he was greatly surprised to be so informed as in the absence of or shortage of work it was to be expected that he, as Sales Director, would be more urgently required than usual to work a securing as much sales orders as possible to resume normal working as quickly as possible.   He said that he made a case to this effect along with a detailed plan to secure sales orders – but to no avail.

The Complainant said that he submitted his letter of resignation on 19th January 2017 in which he invoked his Employee Notice of Termination of Contract of Employment.   The Complainant, in his letter of resignation, confirmed that he was available to work his notice period and he specifically stated inter alia that:

“Please advise immediately of your decision about whether or not I should carry out my work during the Notice of Termination time period.”

The Complainant sent an email to the Respondent in which he stated:

“I need an instruction from you to advise if I should or should not work out my notice in an effort to secure business for the Company.

I would appreciate a response this afternoon please.”

The Complainant said that however he was not allowed to work his notice period nor was he paid for his notice period.

The Complainant submitted that he was denied his notice period entitlements in accordance with the provisions of his written Contract of Employment.

Based on the foregoing the Complainant sought that his complaint be upheld and that his notice period payment be made to him.

Summary of Respondent’s Case:

The Respondent was denying that there was any breach of the Complainant’s rights by them under the Payment of Wages Act 1991 or otherwise by them and they submitted that there were no ‘wages’ as defined in the 1991 Act due to the Complainant from them.

The Respondent said that due to a challenging business situation, they went into examination, unfortunately resulting in some redundancies and short time lay-offs, the Complainant being one of those effected.

The Complainant said the Complainant commenced working for them on 27th July 2015 as a Sales Director.   The Respondent the Complainant’s contract of employment provided that 2 months notice of termination of employment should be given by either party.

The Respondent said that the Complainant was placed on short-term lay-off on 13th January 2017 and his contract of employment provided that he would not be paid during a period of lay-off.

The Respondent said the Complainant resigned his job by hand delivered letter stating he wished to invoke the notice in his contract clause “with immediate effect” .   In his resignation letter the Complainant said he could be paid his notice based on his contract of employment and he would leave the employment immediately or that he could return to work and attempt to secure business for the Respondent.

The Respondent said the day following his resignation, the Complainant sent an email to the Managing Director to enquire whether he was required to work his notice.   The MD responded on 24th January 2017, stating that he would have expected to have been given notice in accordance with his contract of employment; however the MD accepted that there was no work at that time and that thus the Complainant could resign without working his notice and the MD pointed out that that in such circumstances the Complainant would not be paid for his notice period.   The MD said that alternatively, the Complainant could remain in employment and should an opportunity for work arise during that period he might to able to work; however he would not be paid in that situation either, unless there was an opportunity to return to work.   The Complainant did not respond to this correspondence.   The Complainant did come into the Office once at the end of January and the MD wrote to him telling him not to come on-site during a period of lay-off.

The Respondent said that during the period of his notice, the Complainant was on lay-off and they said that as such he had no entitlement to be paid during the period of his notice.

Based on the foregoing the Respondent submitted that the complaint was not well founded and it should be rejected.

Findings and Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 6 of the Payment of Wages Act 1991 requires that I make a decision on the complaint consisting of redress in accordance with the same Section of the 1991 Act.

There are three (3) relevant sections of the contract of employment signed and dated by both parties as follows:

• TEMPORARY SHORTAGE OF WORK                                                                                                   . If there is a temporary shortage of work for any reason, we will try to maintain your continuity of employment even if this necessitates temporarily placing you on short time or having to lay you off work without pay.
•  
• NOTICE OF TERMINATION TO BE GIVEN BY EMPLOYER                                                                 . 2 months
•  
• NOTICE OF TERMINATION TO BE GIVEN BY EMPLOYEE                                                               .   2 months    

The Complainant submits that he was or is being denied his right to notice, however that is not the case.   What the Complainant is being denied is paid notice.

I note that the instant case is a complaint under the Payment of Wages Act 1991 that the Respondent is in breach of the provisions of Section 5 of that Act.   Section 5(1) of the 1991 Act provides as follows in relation to reductions/deductions from wages as defined under the 1991 Act:

“An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

• the deduction (or payment) is required or authorised to be made by virtue of any statue or any instrument made under statue,

• the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment,       or

• in the case of a deduction, the employee has given his prior consent in writing to it.”

As can plainly be seen from the above (b) quote from the Complainant’s written contract of employer the non-payment of wage during a temporary lay-off from work in explicitly provided for and authorised by that contract in force before and at the time of the deduction/non-payment involved.

I am also satisfied that (c) above applies in the instant case as the Complainant gave his prior consent in writing to the non-payment of wages (which would include ‘notice pay’) during a period of lay-off such as applied in the relevant period in the instant case.

Based on the foregoing findings I declare that the complaint under Section 6 of the Payment of Wages Act 1991 in relation to minimum notice payments is not well founded; it is rejected and it is not upheld.

Dated: 18/12/17

Workplace Relations Commission Adjudication Officer: Seán Reilly.

Key Words:   Alleged unpaid minimum notice entitlements