ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012536
| Complainant | Respondent |
Anonymised Parties | A Sales Manager | A Packaging Company. |
Representatives | Self-Represented. | T. O'Hare Solicitor of O'Hare & O‘Dwyer Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00014235-001 | 25/09/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00014235-002 | 25/09/2017 |
Date of Adjudication Hearing: 13/03/2018
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015; Section 11 of the Minimum Notice & Terms of Employment Act, 1973and Section 6 of the Payment of Wages Act, 1991 following the referral of the complaint(s)/dispute(s) 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(s)/dispute(s).
Preliminary Issue of Time Limits.
The Respondent was of the view that the Complaints were out of Time – having been received in the WRC on the 25th September 2017 -well in excess of the initial six-month time limit.
The Complainant strongly maintained that he had submitted the appropriate forms in March 2017. The WRC were unable to find any traces on these submissions. The delay in his submitting being due to a family bereavement.
None the less the second or repeat forms were received on the 25th September 2017 which is just within the twelve-month period that may be allowed at Adjudication Officer discretion.
Having considered all the evidence presented, heard the vehement verbal testimony of the Complainant regarding his alleged March submissions and seen the administrative correspondence I am prepared to allow the claim to proceed.
Background:
The dispute concerns a former employee of a Packaging Company and his employer over the correct amount of notice pay he was due on his Resignation. |
1: Summary of Complainant’s Case:
CA-00014235-001 Notice Pay Complaint and CA-00014235-002 Payment of Wages Act Complaint. The Complainant resigned from the Respondent Employer on the 27th September 2016. (letter in evidence). He continued to work there until the 6th October 2016 when it was stated to him by the Respondent principal that it would be better for all of them if he “wrapped up” that day. Accordingly, he physically left on that date. There was no acrimony and the only issue in dispute was the amount of notice pay that was due to the Complainant. No formal contract of employment existed and the question of notice, on resignation, was completely unclear. The Respondent principal mentioned verbally in September that he did not know and figures of one and two months were mentioned save always with the caveat from the Respondent principal that he would have to check it out before any commitments were given. The Complainant was of the view that at least one month’s pay was due to him. |
2: Summary of Respondent’s Case:
CA-00014235-001 Notice Pay Complaint and CA-00014235-002 Payment of Wages Act Complaint.
The Complainant resigned from the Respondent. He was paid until the 7th October (pay slips presented). This was clearly one week’s notice from a resignation date of the 27th September. This was explained to the Complainant in an e-mail exchange dated the 30th September 2016 (copies given in evidence). Oral evidence was given by the Director (Ms CM) and the General Manager (Mr. X) regarding all these issues. The Principal Director was unable to attend due to ill health. Ms.CM was clear cut that the issue of notice pay would have been for her decision and the Principal would have always referred such administrative matters to her. All other monies due, holiday pay, bonus etc. were paid. It was accepted in Oral evidence that no formal contract of employment was in existence but in the circumstances one weeks’ notice from the 27th September was in keeping with legislation – (Section 6 of the Minimum Notice & Terms of Employment Act, 1973 Act refers) and was reasonable.
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3: Findings and Conclusions:
Section 6 of the Minimum Notice & Terms of Employment Act, 1973 offers guidance.
Rights of employer to notice. 6.—An employer shall, subject to the right of an employee to give counter-notice under section 10 of the Act of 1967 or to give notice of intention to claim redundancy payment in respect of lay-off or short-time under section 12 of that Act, be entitled to not less than one week’s notice from an employee who has been in his continuous employment for thirteen weeks or more of that employee’s intention to terminate his contract of employment.
In a situation where there is no written Contract, and no great verbal evidence to substantiate an alternative verbally based contract it is not unreasonable to take the Statutory position as a default option. Accordingly, I have to find that one week’s notice was paid and the claim for additional notice payments has to fail both under the Minimum Notice Act and the Payment of Wages Act. As there was no formal claim before me under the Terms of Employment (Information) Act 1994 I could not consider the question of no formal written contract being in existence.
The claim is accordingly dismissed.
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4: Decision:
Section 41 of the Workplace Relations Act 2015; Section 11 of the Minimum Notice & Terms of Employment Act, 1973and Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.
Act | Complaint/Dispute Reference No. | Summary Decision /refer to Section 3/three above for detailed Reasoning. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00014235-001 | Claim dismissed |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00014235-002 | Claim dismissed |
Dated: 24th July 2018
Workplace Relations Commission Adjudication Officer: Michael McEntee
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