FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : TAPASTREET LIMITED (REPRESENTED BY PETER O' BRIEN, B.L., INSTRUCTED BY PATRICK F O' REILLY & CO, SOLICITORS) - AND - JOSEPH MITCHELL (REPRESENTED BY MASON HAYES & CURRAN, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Decision No ADJ-00000462.
BACKGROUND:
2. This is an appeal of an Adjudication Officer’s Decision no ADJ-00000462 made pursuant to Section 7(1) of the Payment of Wages Act 1991. The appeal was heard by the Labour Court on 12th January 2017 in accordance with Section 44 of the Workplace Relations Act 2015. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Tapastreet Limited against the Decision of an Adjudication Officer under the Payment of Wages Act 1991 (the Act) where Mr Joseph Mitchell claimed that his former employer had breached the Act when he was not paid his contractual six months’ notice on the termination of his employment. The Adjudication Officer held that the complaint was well founded and awarded him six months’ salary in compensation.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Joseph Mitchell will be referred to as “the Complainant” and Tapastreet Limited will be referred to as “the Respondent”.
Background
The Respondent is a Dublin-based technology start-up which was founded in 2012. The Complainant was a co-founder and Chief Executive Officer of the Respondent. He was dismissed without notice on 16 October 2015 and he was not paid in lieu of notice when his employment with the Respondent terminated.
The Complainant’s contract of employment provides at Clause 5"Your employment may be terminated by you or by the company on the giving ofsix months' notice, in writing, orsuch larger periods ofnotice from time to time be required by law".
Summary of the Complainant’s Case
Mr Ger Connolly, Solicitor, Mason Hayes & Curran, Solicitors, on behalf of the Complainant, made reference to the Board of Management meeting held on 16 October 2015 where the Chairman of the Board stated that the Respondent would"honour'the Complainant's contract if he resigned. However as he did not resign, the Respondent failed to pay him his six months’ notice entitlement when they dismissed him that day. The Complainant disputed his dismissal for gross misconduct, which was the subject of separate proceedings under the Unfair Dismissals Act 1977 – 2015.
Summary of the Respondent’s Position
Mr Peter O’Brien, B.L., instructed by Patrick F. O’Reilly & Co., Solicitors, on behalf of the Respondent,submitted that the Complainant was not paid his notice entitlement as his dismissal fell within the terms of Clause 13 of his contract of employment, viz.'Summary dismissal may take place in instances of what we[the Respondent]regard as serious misconduct.'The Respondent contended that pursuant to Clause 13 of the contract of employment, the Complainant’s actions amounted to gross misconduct warranting summary dismissal and therefore it follows that he was not entitled to payment of six months' notice pursuant to contract.
The Respondent conceded that the outcome of the within appeal fell to be determined in accordance with the Court’s decision in the Respondent’s appeal under the Unfair Dismissals Act 1977– 2015.
Conclusions of the Court
The Labour Court, consequent on a separate finding under the Unfair Dismissals Act 1977 – 2015 has found that the Complainant’s dismissal was not grounded on gross misconduct and has held that he was unfairly dismissed. In such circumstances, the Court finds that the Complainant had a contractual entitlement to six months’ pay in lieu of notice on the termination of his employment.
Determination
The Court determines that the Respondent’s failure to pay the Complainant in lieu of his contractual notice entitlement was an unlawful deduction from the Complainant’s wages within the meaning of Section 5 of the 1991 Act. Therefore the Court finds in favour of the Complainant’s claim under the Act. In all the circumstances the within appeal is dismissed and the Decision of the Rights Commissioner stands.
Therefore the Court determines that the Complainant should be paid the sum of €35,000 in respect of the breach of the Act.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
2nd February, 2017.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.