FULL RECOMMENDATION
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005 PARTIES : CHEEVERSTOWN HOUSE LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MERCY OSHIN (REPRESENTED BY MC MAHON & CO) DIVISION : Chairman: Mr Geraghty Employer Member: Ms Connolly Worker Member: Ms Treacy |
1. Appeal Of Adjudication Officer Decision NoADJ-00005988.
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 17thof May 2018. A Labour Court hearing took place on 2ndof April 2019. The following is the determination of the Court:
DETERMINATION:
This is an appeal by Mercy Oshin, ‘The Complainant’, of a decision by the Adjudication Officer, (AO), that she was not entitled to a Minimum Notice payment by Cheeverstown House Ltd., ‘The Respondent’. The appeal had been delayed due to the unavailability of a witness who was ill. The Complainant worked as a Care Assistant with the Respondent from 2007 to 2016, when she was dismissed. There is disagreement between the parties as to the date of dismissal. The matter was referred by the Complainant to the Workplace Relations Commission and an AO had deemed the dismissal not to be unfair and that, as a result, no payment for notice was due.The Complainant appealed this decision.
Respondent’s arguments
Section 8 of the Minimum Notice and Terms of Employment Acts 1973-2005 provides that: ‘Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.’ The Complainant was dismissed because of her conduct, so no payment is due to her. Without prejudice to this and in the alternative, the Respondent issued a dismissal letter on 10 June 2016 and the termination date was 8 July 2016. The Complainant, therefore, received four weeks’ pay in lieu of notice. In addition, pending her appeal, the Complainant was paid her salary up to 14 October 2016.
Complainant’s arguments
The Complainant was dismissed unfairly and is entitled to a payment for minimum notice under the Act.
The Law
1. Subject to the provisions of this Schedule, an employee shall, during the period of notice, be paid by his employer in accordance with the terms of his contract of employment and shall have the same rights to sick pay or holidays with pay as he would have if notice of termination of his contract of employment had not been given.
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.
(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—
(a) if the employee has been in the continuous service of his employer for less than two years, one week,
(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,
(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,
(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,
(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.
(3) The provisions of the First Schedule to this Act shall apply for the purposes of ascertaining the period of service of an employee and whether that service has been continuous.
(4) The Minister may by order vary the minimum period of notice specified in subsection (2) of this section.
(5) Any provision in a contract of employment, whether made before or after the commencement of this Act, which provides for a period of notice which is less than the period of notice specified in subsection (2) of this section, shall have effect as if that contract provided for a period of notice in accordance with this section.
(6) The Minister may by order amend or revoke an order under this section including this subsection.
Deliberation
The Court has found that the dismissal of the Complainant was unfair. She is entitled to be paid 4 weeks’ notice. In the view of the Court this entitlement was met by virtue of the fact that the Respondent continued to pay the Complainant her salary for four weeks after her dismissal letter and, indeed, continued to pay her for a further three months thereafter, pending the outcome of her appeal.
Determination
The decision of the AO is overturned. The Complainant is entitled to be paid her minimum notice. This payment has been made by the Respondent and no further payment is due.
Signed on behalf of the Labour Court
Tom Geraghty
CH______________________
29th April 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Carol Hennessy, Court Secretary.