FULL RECOMMENDATION
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005 PARTIES : ANGLO BEEF PROCESSORS IRELAND TRADING AS ABP RATHKEALE (REPRESENTED BY ALASTAIR PURDY & CO SOLICITORS) - AND - LURIE LANCU (REPRESENTED BY MARIUS MAROSAN) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal Of Adjudication Officer Decision No: ADJ-00008805 CA-00011570-002
BACKGROUND:
2. The Respondent appealed the Decision of the Adjudication Officer to the Labour Court on the 11 December 2018. A Labour Court hearing took place on the 11 July 2018. The following is the Decision of the Court:-
DETERMINATION:
This is an appeal under the Minimum Notice and Terms of Employment Acts 1973 – 2015 (the Act), by Mr Iurie Iancu (the Appellant) against Adjudication Officer Decision reference ADJ-00008805 delivered on 1 November 2017.
The Adjudication Officer decided that Anglo Beef Processors Ireland t/a ABP had failed to pay the Complainant the statutory notice to which he was entitled under the Acts. The Adjudication Officer decided that the Complainant was entitled to eight weeks notice under Section 4(2)(e) of the Act and awarded him compensation in the sum of €3,007.68.
The Complainant appealed against the figures used by the Adjudication Officer in the calculation of his entitlement under the Acts as they did not correspond with his normal weekly remuneration and consequently understated his compensation entitlement.
The Respondent did not appeal the decision to the Court but argued that the Complainant’s own submission to the Court contained evidence that the Complainant was not fit for work during his notice period and accordingly was not entitled to payment in lieu of notice under the Act. It submits that the Adjudication Officer did not have statutory authority for her award and that this Court was obliged to set it aside and comply with the terms of the statute.
The Law
4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.
Schedule 2 of the Act in relevant part states
2. (a) (i) An employee shall be paid by his employer in respect of any time during his normal working hours when he is ready and willing to work but no work is provided for him by his employer.
4. An employer shall not be liable to pay to his employee any sum under paragraph 3 of this Schedule unless the employee is ready and willing to do work of a reasonable nature and amount to earn remuneration at the rate mentioned in the said paragraph 3.
In this case the complainant in his submission to the Court provided documentation that disclosed that he was, during the notice period, not available for work due to ill health.
On the basis of that evidence the Court finds that the Respondent was not obliged to pay the Complainant in lieu of notice in respect of each of those weeks during which he was not ready and willing to work for his employer. As this state of unreadiness existed for the entirety of his notice period he has no entitlement to payment for that period and the award made by the Adjudication Officer cannot stand.
Determination
The Complainant, though entitled to notice of termination of employment from his employer, was not, due to illness, ready to work for his employer during that notice period and accordingly has no entitlement to payment in respect of the period of notice.
The Decision of the Adjudication Officer is set aside.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
19 July 2018______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.