ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00006916

Complaint(s):

Date of Adjudication Hearing: 11/04/2017

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Location of Hearing: Room 4.01 Lansdowne House

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other Act as might be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.

The Complainant herein has referred a matter for adjudication as provided for under Section 11 of the Minimum Notice and Terms of Employment Act, 1973 and the referral has been made within six months of the date on which this claim accrued to the Complainant.

Background:

The Complaint has 15 years accrued service and is looking for a Minimum Notice payment in circumstances where his Employer failed to make provision for one and further did not allow him to work out his Notice period when the Complainant was made Redundant in June of 2016.

Summary of Complainant’s Case:

The parties agreed that the Complainant would take a voluntary redundancy package but no provision as made for Notice either to be paid in lieu or to be worked through in the normal way.

Summary of Respondent’s Case:

The Respondent relied on written submissions presented and on the Contractual arrangement entered into at the time that the parties agreed that the Complainant would accept a voluntary Redundancy Package. This is a big company with a large HR department. The onus would have to be on the Employer to ensure that the Complainant was fully aware of what he was signing when he made the agreement.

Findings and Conclusions:

The parties did not offer any insight into the pre-history between them. I have simply been told that a meeting was held with the Complainant and the HR Manager (who gave evidence) on the 13^th of June 2016. Arising out of that meeting the parties agreed that they would part company with the Complainant accepting a voluntary redundancy package which was put to him on that day. The Redundancy lump sum was calculated with reference to the statutory figure which allows for €600.00 ceiling for every week calculated.

The Complainant left the company at the end of June by agreement thereby working two weeks of what would have been his Notice period.

The parties entered into an agreement which purports to exclude the Complainant from bringing any further claims under many protective pieces of Employment legislation. In principle this would be an acceptable practise but only where the Employee has been fully notified of the consequences of this purported waiver.

There is no evidence to suggest that the Complainant was told that he was entitled under legislation to eight weeks of notice of the termination of his employment and the issue of payment in lieu was certainly never addressed. The Employer makes the case that he was doing the Complainant some sort of service as the Complainant wanted to leave the workplace early. I am not satisfied that this was the case, and even if it had been the Complainant should have been made fully aware of what benefits he was waiving. It was for the Complainant to make the decision to waive his Statutory entitlement having been fully informed that this level of Notice had accrued to him after 15 years of service.

Whether the Complainant would have worked his Notice is not something I can speculate on. My only concern is that there is no evidence to suggest that he fully understood the nature and consequence of being removed out of the workplace within two weeks and having his period of Notice incorrectly backdated to a date that has no bearing on the agreement between the parties.

I am satisfied that the Complainant’s Notice period should have run up to the 8^th of August 2016. This brings his claim form within the Statutory Time limit of 6 months. The Complainant worked his first two weeks of Notice and is entitled to a further 6 weeks of pay in lieu of working his notice period.

Decision:

The Complainant is entitled to be paid his Minimum Notice of a further six weeks of pay, the said sum should be based on the Gross figure of €581.00 which figure is gleaned from the Workplace Relations Complaint Form.

Dated:   06^th July 2017

Workplace Relations Commission Adjudication Officer: Penelope McGrath