ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00023616

Parties:

Complaint(s):

Date of Adjudication Hearing: 29/11/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaint to me by the Director General, 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 is seeking a payment of one week’s notice for her dismissal during her probation period. The Respondent maintains the Complainant was not entitled to any payment in lieu of notice.

Summary of Complainant’s Case:

The Complainant submitted that she commenced her employment on 6th September 2018. The Complainant maintained that on 18th October 2018 she was verbally told by her manager that she was being dismissed and that she would be paid in lieu of notice. The Complainant also submitted that she was provided with a letter of dismissal on 18th October 2018 which stated that she would be paid in lieu of notice. The Respondent did not pay her a weeks’ pay in lieu of her notice. On that basis she submitted her complaint to the WRC on 28th March 2019 seeking payment for one week’s notice.

Summary of Respondent’s Case:

The Respondent Maintained that the Complainant commenced her employment on 11th September 2018, and that her employment was terminated some six weeks later during her probation period for poor performance. The Respondent submitted that the Complainant’s contract of employment states that under 13 weeks service the notice of termination to be given by the employer is nil. The Respondent also submitted that in accordance with the Minimum Notice and Terms of Employment Act 1973 the Complainant had no legal entitlement to payment in lieu of notice as she has less than thirteen weeks service.

The Respondent maintained that the Complainant’s manager did not advise the Complainant verbally that she was entitled to a week’s payment in lieu of notice. The Respondent further acknowledged that the letter provided to the Complainant on her termination did state that she would be paid in lieu of notice, however it did not state any amount. The Respondent advised this is a standard sentence in letters of this nature, and only applies if there is a contractual obligation, which in this case there was not. The Respondent provided email correspondence which indicated this was outlined to the Complainant on 8th November 2018 when it provided her with information on reconciling her final payment.

Findings and Conclusions:

Section 5 (1) of the Payment of Wags Act 1991 states that an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

• the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

• the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

• In the case of a deduction, the employee has given his prior consent in writing to it.

Having considered the evidence presented including the Complainant’s contract of employment and her entitlements under the Minimum Notice & Terms of Employment Act, 1973 I find that the Complainant had no contractual or legal entitlement to be paid in lieu of notice unless she had at least thirteen weeks service. Whilst I acknowledge the letter provided to her upon her termination referred to payment in lieu of notice, it did not specify any amount. The fact is the Complainant had no entitlement and therefore by deduction there was no obligation to pay her any notice period as it was stated as nil in her contract of employment. It was unfortunate that the Respondent did not remove the statement of payment in lieu of notice in the letter it issued to the Complainant as on this occasion such a payment was nil.

Having heard the evidence submitted by the parties, and in accordance with Section 6 of the Payment of Wages Act 1991, I find the complaint is not well founded.

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 Schedule 6 of that Act. Section 6 of the Payment of Wages Act 1991 requires that I make a decision under the relevant sections of that Act.

As I have found the complaint is not well founded, I do not uphold the complaint.

Dated:   4/12/19

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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