Complainant

Respondent

Anonymised Parties

Supply Chain Manager

Production Facility

Representatives

Self-Represented

Mr. Timothy Smyth, Timothy Smyth Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00038091-001

19/06/2020

The Complainant commenced employment with the Respondent on 12th February 2019. At all times his role was that of supply chain manager, for which he received a monthly salary of €2,200. On 1st May 2020 the Complainant gave one month’s notice of the termination of his employment. On 8th May 2020, prior to the completion of this notice period, the Complainant’s employment was terminated.

On 19th June 2020, some five weeks following his dismissal, the Complainant lodged a complaint under the Payment of Wages Act with the Commission. In short, the Complainant alleged that he was not paid in lieu for his contractual notice period on the termination of his employment. It was the position of the Respondent that the as the Complainant resigned his position he was not entitled to any notice payment and the claim was denied.

A hearing in relation to this matter was convened and finalised on 12th November 2020. This hearing was held remotely, with neither party experiencing technical issues relating to the same. Both parties issued written submissions in advance of the hearing and availed of the opportunity to cross examine opposing evidence as presented. No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

The Complainant commenced employment with the Respondent on 12th February 2019. On 1st May 2020, the Complainant gave notice of his resignation. This communication gave one month’s notice of termination as prescribed by the Complainant’s contract. The following day, the Complainant received a call from HR advising that they were unsure as to whether he would be required to work his full notice period. On 5th May, the Complainant was invited to an exit interview. In the course of this meeting the Complainant was informed that his last day of work would be the 8th May, the coming Friday. Later that day the Complainant received an email stating that “following on from our discussion, and having reviewed this, Friday would be most suitable as your last day in the business.”  

In the following weeks, the Complainant was only paid from 1st – 8th May and was not paid for the remainder of his notice period. The Complainant submitted that he was entitled to be paid for the period 8th May – 31st May, in accordance with the notice period set out in his contract.

In answer to a question, the Complainant denied that he had sought to bring forward his final date of work. He denied that he had in fact resigned during his notice period and effectively disqualified himself for payment for the remained of the month.

By submission, the Respondent agreed with the Complainant’s assessment of his start date, the issue of his notice and the invitation to the exit interview. They submitted that in the course of the interview the Complainant advised that his new role was available immediately. In the circumstances the HR representative present at the meeting provisionally agreed to the Complainant being released from his notice period early. Following a conversation with senior management it was agreed that the Complainant’s last day of work would be the 8th February 2020.

In summary the Respondent submitted that the Complainant did not have to be paid in lieu of his notice after 8th February as he elected to terminate his contract of employment on this date.

In answer to a question the HR representative denied that she informed the Complainant that his last day would be the 8th February. She stated that she had no power to unilaterally bring forward an end date in that fashion. She re-iterated that the Complainant requested that he be released from his contract early, with the Respondent agreeing to this proposal later in the day.

Section 1 of the Payment of Wages Act 1991 defines “wages” as “any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice”.

At the hearing of the matter, the parties agreed that the net point to be determined was whether the Complainant’s contract of employment was terminated by Respondent during the meeting of the 5th February or whether it was terminated during the notice period on the request of the Complainant. If the Respondent terminated the Complainant’s contract of employment during his notice period, they are obliged to pay him the remainder of the notice pay in lieu on his termination date. In the alternative, if the Complainant requested that his notice period be reduced so as to allow him to take up his new role, the contractual notice period had been waived by the Respondent and no obligation to pay the remained of his notice in lieu arose.

Regarding this point, I note that the evidence as presented is completely contradictory, with the Respondent’s witness stating that the Complainant requested that the notice period be cut short and the Complainant stating that the termination date was imposed upon him. Given that these were the only two witnesses to this conversation, and no minutes or other record was kept of the meeting, this conflict of evidence is difficult to resolve.

Nonetheless, I note that four days prior to the meeting in question, the Complainant freely gave one month’s notice of the termination of his employment without any caveat or qualification to the same. Shortly after receiving this notice, the Respondent elected to call the “exit interview”. This meeting was not convened on the request of the Complainant who, at this point, appeared happy to work out the remainder of his notice period. In the circumstances I find that it is reasonable to assume that the Respondent’s purpose in calling the meeting related, at least in part, to the amendment the Complainant’s notice period. I also note that the correspondence issued after the meeting did not state that the Complainant requested that the notice period be reduced as later claimed. In the circumstances, I prefer the evidence of the Complainant and find that his notice was cut short by the Respondent. Consequently, he was entitled to be remunerated for the remainder of the same on the termination of his employment. Accordingly, I find that the non-payment of the remainder of the Complainant’s notice period constitutes an unauthorised deduction from the Complainant’s wages for the purposes of Section 5 of the Act and I duly find that his complaint is well-founded.

CA-00038091-001 – Complainant Under the Payment of Wages Act 1991

I find that the complaint is well-founded and consequently the Complainant’s application succeeds.

In relation to redress, Section 6(2) of the Act (as amended) empowers me to award such redress as deemed reasonable in the circumstances, so long as the same does not exceed the total amount of wages owed.

In this regard, the Complainant was in receipt of a monthly salary of €2,200, which equates to a weekly payment of €550. Given that the Complainant was not paid for three weeks of his notice period, I award him the sum of €1,650 in respect of the unauthorised deduction of wages.

Notice period, Unauthorised Deduction, Resignation