FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : VF FOODS LIMITED (REPRESENTED BY KEVIN D'ARCY B.L., INSTRUCTED BY O'REGAN LITTLE SOLICITORS) - AND - DAVID O' CONNOR (REPRESENTED BY SHRC LIMITED) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer Decision No ADJ-00013749CA-00018054-002.
BACKGROUND:
2. The Worker appealed the Decision of an Adjudication Officer to the Labour Court on the 27th November 2018, under Section 7(1) of the Payment of Wages Act 1991 . A Labour Court hearing took place on 29th October 2019. The following is the determination of the Court:-
DETERMINATION:
This is an appeal by Mr David O’Connor against the Decision of an Adjudication Officer ADJ-00013749, CA-00018054-002 under the Payment of Wages Act, 1991 (the Act) against his former employer, VF Foods Limited alleging that he was not paid his proper notice entitlement on the termination of his employment.
In this Determination the parties are referred to as they were at first instance, hence Mr David O’Connor is referred to as ‘the Complainant’ and VF Foods Limited is referred to as ‘the Respondent’.
In a Decision dated 24th October 2018 the Adjudication Officer found that the Complainant was entitled to one’s weeks statutory notice and held that as he had only received two days’ notice, she awarded him 3 days’ pay in lieu of notice.
The Complainant appealed the Adjudication Officer Decision to this Court on 27th November 2018.
Background
The Complainant was employed as a Financial Controller with the Respondent from 13th February 2017 until 22nd January 2018 when he was informed that his employment was ceasing. On that day he was given notice and paid until 26th January 2018.
Summary of the Complainant’s Case
Mr Conor Hannaway, SHRC Limited, on behalf of the Complainant submitted that the Complainant was entitled to four weeks’ notice. He accepted that the Complainant did not receive a written contract of employment and accordingly did not have written terms specifying his notice entitlement. However, he submitted that it was an implied term of the Complainant’s contract that he should be entitled to four weeks’ notice on the termination of his employment.
Mr Hannaway contended that in the absence of an agreement in relation to notice, the Courts have been prepared, since the mid-1850’s, to accept an implied period of notice in an employment contract. InAfrican Association v Allen(1910)1 KB, it was held:“The general principle is that.., the engagement can only be terminated after reasonable notice”.
He said that the mode of determination of reasonable notice was established by the Courts. InTierney v Irish Meat Packers(1989) the High Court held that six months’ notice was appropriate for a Group Credit Controller, with nine years’ service. The same approach was taken by the High Court inCarey v Independent Newspapers Limited(2004). Mr Hannaway submitted that based on legal precedent, it is clear that a notice period of three months could reasonably be implied into the contract and that such implied notice would, in no circumstances, be less than one month.
Summary of the Respondent’s Position
Mr Kevin D’Arcy, B.L. instructed by O’Regan Little Solicitors, on behalf of the Respondent disputed the claim and submitted that the Complainant was entitled to one week’s notice in accordance with the Minimum Notice and Terms of Employment Act, 1973. He disputed that there was any implied term to suggest that the was entitled to a longer period of notice.
Summary of the Complainant’s Evidence
The Complainant told the Court that the Respondent informed him late on Monday 22nd January 2018 that his employment was ceasing with effect from Friday 26thJanuary 2018. He said that he arrived into work the following day and spoke to the Respondent. He told him that his heart was not in it and he wished to leave. He said that he would not leave until he got his P45, in order to be in a position to claim job seekers benefit. He said that he agreed his annual leave entitlements and cesser pay with the Respondent.
In his evidence he confirmed that no one had told him that he was entitled to four weeks’ notice.
Court Findings and Conclusion
It is not suggested that the Respondent breached any express term in the Complainant’s contract of employment. Rather, the assertion is that it was an implied term of the Complainant’s contract that he should be entitled to four weeks’ notice on the termination of his employment. To be an implied term of a contract, the term must be so well known that it satisfies the test, as set out inO’ Reilly v. Irish Press Ltd(1937) 71 ILTR 194“…so notorious, well known and acquiesced in that in the absence of agreement in writing it is to be taken as one of the terms of the contract between the parties…”. No facts were presented to the Court to support this assertion. Alternatively, it must be established by custom and practice, again no evidence has been submitted to meet this test. The Court notes that the Complainant was paid on a weekly basis, not on a four-weekly basis. While it might be fair and reasonable to assume that the Complainant may have been entitled to a longer period of notice than his statutory one week’s notice and the Respondent was clearly at fault in not providing him with a written contract of employment specifying his notice entitlement, however, the Court is not satisfied that any evidence has been submitted to support the contention that it was an implied term of his contract that he was entitled to four weeks’ notice.
If there is no notice period expressly stated in the contract, then the statutory notice period will apply. Accordingly, the Court finds that he was entitled to one week’s notice in accordance with his statutory entitlement under the 1973 Act.
Determination
For all the reasons cited above, the Court concurs with the Decision of the Adjudication Officer and awards three days pay to the Complainant. Therefore, the appeal fails.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
FMc______________________
4th November 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Fiona McCarthy, Court Secretary.