Complainant

Respondent

Anonymised Parties

A Shop Assistant

A Shop Owner

Act

Complaint 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-00030952-001

17/09/2019

The Complainant is seeking her entitlement under Section 11 of the Minimum Notice & Terms of Employment Act. The Respondent did not engage nor attend the hearing.

The Complainant commenced employment as a Shop Assistant on 20 June 2006. She said that the Respondent was continually saying that the shop was not doing well and that it might close. The Complainant said no formal notice was given. A public notice was placed at the till and door to inform customers that the shop was closing down. The date of notice of termination of employment and the date of end of employment was 7 October 2018.

This complaint was lodged with the WRC on 17 September 2019. Eleven months after the end of her employment. She said she understands that her complaint is outside the 6-month time period. However, she requested that an extension of the time limit be considered on the basis that she had previously filed the a compliant with the WRC on 7 November 2018 for a claim under Section 39 of the Redundancy Payments Act 1967, only a month after being made redundant. She said that in the narrative of that complaint she made references to the Respondent’s failure to give the correct notice that is required under the Minimum Notice & Terms of Employment Act. She said she was not legally represented and was unsure as to how to present this aspect of her claim at the hearing.

She said that the decision for redundancy was in her favour. However, she noted that the Minimum Notice & Terms of Employment Act was not addressed in the decision and she lodged the specific complaint under the Minimum Notice & Terms of Employment Act with the WRC thereafter.

The Respondent did not engage nor attend the hearing.

The Complainant is applying for 6 weeks minimum notice as her employment was terminated on 7 October 2018 without any prior notice being given. I find that this complaint is out of time, in that it was brought 11 months after the date of the alleged breach. However, I note that the Complainant has applied to extend that time limit.

I note that Section 6 of the Workplace Relation Act 2015 states,

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Section 8 states, “ An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

I note that the Labour Court in the Cementation Skanska V Carroll DWT0342 case stated, “in considering if reasonable cause exists it is for the complainant to show that there are reasons which both explains the delay and afford an excuse for the delay…In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and the circumstances known to the complainant at the material time”.

Accordingly, I find that in order to achieve an extension to the time limit the Complainant must be able to show that there are reasons which both explain the delay for the case to have not met the time limit and afford an excuse for the delay.

Having considered the fact of this case and evidence presented by the Complainant I deem that it is proper to extend the time for the Complainant to bring her minimum notice complaint to 12 months from the 7 October 2019, in which case the within complaint is within time. I accept that this element of her complaint was previously included in the narrative of the original complaint lodged with the WRC, on 17 September 2019, within the correct time limits. I accept that she had an expectation that this element of her complaint would have been addressed and decided on. I accept that having noticed it had not been addressed in the previous related decision, she lodged a further complaint to the WRC without haste. I am satisfied the within complaint was contained within the previous complaint and that I can extend the time in this application to allow it to be considered. For this reason, I find that the complaint for minimum notice is within time.

The Applicable Law

Section 4 of the Minimum Notice and Terms of Employment Act, 1973 at relevant part states as follows:

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—

…

(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,

I accept the Complainant she was receiving a weekly gross pay of €240. I note and am satisfied that the Complainant is entitled, by virtue of her service, to six weeks’ notice of the termination of her employment which she did not get. Accordingly, I find that the complaint is well founded.

I find this complaint to be well founded and I direct the Respondent to pay the Complainant €1,440 [one thousand four hundred and forty euro] six weeks gross pay, which equates to €240 x 6 weeks.

Minimum Notice & Terms of Employment Act – well founded