MND213

1.An Appeal of Adjudication Officer's Decision No. ADJ-00023766

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officerto the Labour Court on 1 October 2020 in accordance withthe Minimum Notice and Terms of Employment Act 1973 to 2005.A Labour Court hearing took place on 19 January 2020. The following is the Determination of the Court:-

 
This matter comes before the Court as an appeal of a decision of an Adjudication Officer given under the Minimum Notice and Terms of Employment Acts 1973 to 2005 (the Act) in a complaint by Ms Sorcha McLenaghan (the Claimant) against her former employer, Ticket Text Limited t/a Ticket ABC (the Appellant).

The Adjudication Officer decided that the complaint was well founded and awarded compensation in the amount of €1,875 to the Claimant.

The Case

The Claimant’s employment terminated on 1^stMarch 2019 for reasons outlined in their written and oral submissions by the parties to the Court. The Claimant previously complained under the Redundancy Payments Act, 1967 that she had been placed on short time for the statutory period and consequently claimed that she had been made redundant on 1^stMarch 2019. Her complaint under the Act of 1967 was upheld and she received payment in respect of her statutory entitlements under that Act.

Relevant Law

The entitlement to notice arises where the employer terminates the employment of an employee. The obligation resting on the employer in such a circumstance is set out in the Act at Section 4(1) 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.

The Act at Schedule 1 paragraph 5 provides as follows:

5. An employee who claims and receives redundancy payment in respect of lay-off or short time shall be deemed to have voluntarily left his employment.

The Hearing

The parties agreed that their written submissions should be taken as read.

Conclusion of the Court

It is common case that the Claimant in this case claimed and received redundancy payment under the Redundancy Payment Act, 1967 in respect of short time working.

The Claimant has made clear that she initiated that statutory procedure because she could see no alternative having regard to the situation she found herself in. It is clear that she did not, in the common usage of the term, voluntarily leave her employment.

However, the Court is obliged to apply the statute as written. As a result, in the circumstances of this matter the Court is required to hold that by operation of the law as set out at Schedule 1 of the Act the Claimant voluntarily left her employment.

In circumstances where an employee voluntarily leaves her employment a complaint that the employee did not receive notice of the termination of her employment from the employer cannot be sustained.

Determination

The Court determines that the Claimant was not, for the reasons set out above, entitled to notice from the employer under the Act. The decision of the Adjudication Officer is set aside.

The Court so determines.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
22 January 2021	Chairman