MND208

1.An appeal of an Adjudication Officer's Decision No. ADJ-00015030

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 10 May 2019. A Labour Court hearing took place in a virtual Courtroom on the 29 September 2020. The following is the Determination of the Court:





DETERMINATION:

This matter comes before the Court as an appeal by Ciara Halpin t/a Jo Jingles Cork (the Respondent) against the decision of an Adjudication Officer given under the Minimum Notice and Terms of Employment Act, 1973 (the Act) in a complaint made by Heather O’Sullivan (the Complainant) that she had not been afforded the notice required by the Act on termination of her employment. The Adjudication Officer held that the Respondent had not afforded the required notice and awarded the sum of €880 in compensation.

Background

The Complainant commenced employment with the company on 13^thApril 2015 as a class teacher working across a number of locations. She worked 11 hours each week on average and received a rate of pay of €20.00 per hour. Her employment terminated on 8^thJanuary 2018.

It is common case that the Claimant was afforded two weeks’ pay in lieu of notice upon termination of her employment.

Summary of the position of the Complainant

The Complainant submitted that her contract of employment provides for six weeks’ notice to be provided to her on termination of her employment and that the Respondent, in contravention of the Act, had failed to provide the required notice.

The Complainant, in support of her complaint, provided the Court with an extract of her contract of employment which stated as follows:

• On leaving the Company, written notice should be submitted to the franchisee. The minimum required period of notice is six weeks.

Summary position of the Respondent (Appellant)

The Respondent submitted that the Complainant had received her statutory entitlement to two weeks’ notice. The contractual provision identified by the Complainant was a provision requiring the Complainant to provide the Respondent with six weeks’ notice if she proposed to terminate her employment. The Respondent submitted that no clause of the Complainant’s contract of employment conferred upon her a right to notice beyond that required by the statute.

The Law

The Act at Section 4 provides as follows:

Minimum period of notice.

• 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.

The Court has examined the text of the Complainant’s contract of employment in relevant part as submitted by her to the Court. The Court, on plain reading, interprets the relevant clause as conferring a right to six weeks’ notice of termination of the employment upon the Respondent and not the Complainant. The Court therefore concludes that the clause does not provide a basis for the Complainant’s assertion that she was entitled to notice beyond that set out in the Act at Section 4. It is common case that the notice required by the Act at Section 4 was provided to her.

Determination

For the reason set out herein the Court has concluded that the Complainant was afforded her entitlements under the Act on termination of her employment.

Th appeal succeeds and the decision of the Adjudication Officer is set aside.

The Court so Determines.

	Signed on behalf of the Labour Court
	Kevin Foley
13 November 2020	______________________
CC	Chairman