ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00006196

Parties:

Complaint for Resolution:

Date of Adjudication Hearing: 1st February 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Location of Hearing: Dublin

Procedure:

On the 28^th November 2016, the complainant referred a complaint to the Workplace Relations Commission. The complaint was scheduled for adjudication on the 1^st February 2017. The complainant was a book keeper and the respondent was a producer of agricultural products.

At the time the adjudication was scheduled to commence, it became apparent that there was no appearance by or on behalf of the respondent. I verified that the respondent was on notice of the complaint and the adjudication and waited some time to accommodate a late arrival. Having taken these steps, I proceeded with the adjudication in the absence of the respondent. The complainant attended the adjudication and was accompanied by her spouse.

In accordance with section 39 of the Redundancy Payments Acts and section 41 of the Workplace Relations Act, following the referral of the complaint to me by the Director General of the Workplace Relations Commission, I inquired into the complaint 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 seeks recovery of eight weeks of notice pay due at the end of her employment as a book keeper for the respondent, a producer of agricultural products.

Summary of Complainant’s Case:

The complainant worked for the respondent between the 18^th December 1996 and the 26^th August 2016, a period of almost twenty years. On the 22^nd August 2016, she was told orally that the business would close and she would lose her job. The respondent wrote to the complainant on the 26^th August 2016 to state that her employment would terminate with immediate effect. The complainant exhibits this letter. She outlined that it had been a long battle to pursue her redundancy entitlement, which she had been paid.

The complainant outlined that she is owed eight weeks’ wages as notice pay. She exhibits a letter from the respondent of the 5^th October 2016, which confirms that the eight weeks of notice are owed, amounting to €3,600. She had contacted the respondent’s accountant who had confirmed that the complainant was owed eight weeks’ wages. She had to pursue the accountant for her P45. She had not received any amount of the eight weeks of notice pay due. Her gross weekly wage was €450.

Summary of Respondent’s Case:

There was no appearance by or on behalf of the respondent, and nor did the respondent make submissions to the adjudication.

Findings and Conclusions:

This is a claim regarding the complainant’s entitlement to payment in lieu of notice following the termination of her employment on the 26^th August 2016. The complainant had close to twenty years’ service with the complainant, but it came to an abrupt end on the 26^th August 2016, when it was terminated with immediate effect. The complainant confirmed that she has been paid the statutory redundancy lump sum payment due. She seeks recovery of eight weeks of notice pay in the amount of €3,600.

It is clear that as an employee of more than 15 years of service, the complainant has a statutory entitlement pursuant to section 4 of the Minimum Notice and Terms of Employment Act. It is also clear from the complaint form that this claim relates to notice pay at a time when the complainant faced a redundancy situation. This is the background to the complainant selecting the Redundancy Payments Act on the Workplace Relations Commission complaint form, rather than the Workplace Relations Act or the Minimum Notice and Terms of Employment Act.

In Galway-Mayo Institute of Technology v Employment Appeals Tribunal and others [2007] IEHC 210, Charleton J. held:

“It follows from the foregoing that a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice. For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it. If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.”

Applying this approach to the instant case, I note that the complaint form was unequivocal about the nature of the claim. The complainant was explicit that she sought recovery of notice pay arising from a set of circumstances where she had been made redundant. I note that the WRC complaint form is a non-statutory form. I also note that this complaint was referred to me under section 41 of the Workplace Relations Act (along with other statutes), giving me legal jurisdiction to make an award pursuant to the Schedule 5 of the Act, including under the Minimum Notice and Terms of Employment Act. Moreover, I note that section 41(5) of the Workplace Relations Act imposes a duty on the adjudication officer to make a decision in relation to the claim or dispute in accordance with the relevant redress provision.

The complainant gave uncontroverted evidence that the respondent and its accountant had advised her of her entitlement to notice pay. Given the circumstances, I took the additional step of writing to the parties to inform them that I proposed to address the claim under the Minimum Notice and Terms of Employment Act. I offered the parties the opportunity to make representations within two weeks of the date of the letter. This correspondence issued on the 13^th April 2017. The complainant made representations, confirming their interaction with the respondent. The respondent did not avail of the opportunity to make representations.

Having taken the above steps, I make an award to the complainant for her entitlement to notice pay arising from the Minimum Notice and Terms of Employment Act. Section 12 of the Minimum Notices and Terms of Employment Act, as amended by the Workplace Relations Act, provides in respect of redress “… the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.” In this case, the complainant has a statutory entitlement to eight weeks of notice pay. Her employment was terminated with immediate effect on the 26^th August 2016. Given that the complainant’s weekly wage was €450, the total owed by the respondent to the complainant is €3,600. The decision provides that this shall be paid to the complainant within 42 days.

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 that Act.

CA-00008432-001

I find that the claim is well founded and the respondent shall pay to the complainant the amount of €3,600, this amount being equivalent to eight weeks of pay. This amount shall be paid by the respondent to the complainant within 42 days of this decision.

Dated: 9^th May 2017

Key Words:

Minimum Notice and Terms of Employment Act – notice pay

Galway-Mayo Institute of Technology v Employment Appeals Tribunal and others [2007] IEHC 210