FULL RECOMMENDATION
PARTIES : NHC CONSTRUCTION LIMITED DIVISION :
SUBJECT:
This is an appeal by NHC Construction Ltd., ‘the Respondent’ of a decision by an Adjudication Officer, ‘AO’, under the Minimum Notice and Terms of Employment Act 1973-2005. Mr. Mathews, ‘the Complainant’, started to work for NHC Construction Ltd. in 2014, initially on a part-time basis. He left the employment for a few months and resumed working part-time for the Respondent in January 2015. In May 2015 the Complainant travelled to the United States on a J1 visa. It is common case that he worked for the Respondent from September 2015 until he was made redundant in March 2020, at which time he was paid statutory redundancy based on his service from September 2015. The Complainant lodged a complaint under the Act with the Workplace Relations Commission on the basis that he states that he remained an employee of the Respondent while in the U. S. in 2015 and that the notice period given to him should have reckoned his service from January 2015. He was given two weeks’ notice and he claimed that he should have received four weeks. The AO upheld the complaint. The Respondent appealed to this Court. SUMMARY OF RESPONDENT ARGUMENTS: There was no discussion between the parties about the Complainant resuming his employment prior to his departure to the U.S. That discussion took place on his return. It is accepted that a P45 issued when he left in 2014 and that none issued in May 2015. However, that does not mean the employment relationship continued. It did not. The Complainant left his employment without any right to return. It is common case that the Complainant commenced full-time work for the Respondent on 23 May 2016 until his redundancy on 23 March 2020. The period from May to September 2015 should be discounted for the purposes of the Act as that gap arose from a voluntary termination of employment by the Complainant. The Complainant’s period of continuous service commenced on 14 September 2015 and continued to 23 March 2020, a period of 4 years and 6 months and not 5 years and 2 months as claimed by the Complainant. Based on his service, he was given the two weeks’ notice to which he was entitled under the Act. The only difference between the two voluntary terminations of service by the Complainant was that on the second occasion the Respondent did not issue a P45. That is not determinative. There is no evidence of any agreement between the parties that the period of four months from May to September 2015 would count as service. The First Schedule of the Act sets the qualifying requirements for notice and provides that absences up to 26 weeks may be regarded as continuous service in certain circumstances, including by agreement with the employer. There was no agreement sought or given when the Complainant decided to go to the U.S. in 2015. SUMMARY OF COMPLAINANT ARGUMENTS: The Complainant is entitled to minimum notice based on service since January 2015. This is an entitlement to notice of four weeks rather than the two weeks offered. The employment summary from the Revenue On-Line Service provided to the Court confirms the start date of 23 January 2015. A bank statement provided to the Court details a payment from the Respondent on 6 February 2015. This confirms the start date and service in the employment totals 5 years and 2 months. The trip to the U.S. was a holiday. It was always the intention to return and this was accepted by Mr. Healy, the owner of the respondent company. No P45 was given to the Complainant when he went to the U.S., by contrast with the situation in 2014 when the Complainant left the employment. The Respondent did not terminate the employment relationship, which resumed in September 2015. WITNESS EVIDENCE: Mr. Niall Healy: Mr. Healy is the owner of the respondent company. The witness outlined how he had set up a business while in his 20s and how he had taken on the Complainant, whose brother was a friend of his, to do part-time work for the company, while the Complainant was in college. The witness said that when the Complainant left to go to the U.S. in 2015 there was no discussion about him returning to the company, that it was all a bit ‘ad hoc’ and that there had not been any bad blood. He said that, at the time, they were friends. While he had not been given any choice about the Complainant’s departure, it was not for him to seek to stop him. The witness said that the Complainant had requested a P45 for tax purposes when he left the company in 2014 but made no such request when leaving in 2015. The witness said that there was not a job awaiting the Complainant’s return from the U.S. The witness said that he made a ‘leap of faith’ in providing the Complainant with a full-time job after the Complainant completed college. The witness said that the Complainant was the only employee to receive a profit share. The witness said that he saw this as a means of tying the Complainant to the company from year to year. It had never been paid weekly or monthly and was only paid after the profits were identified in the annual accounts. Those accounts up to end May 2020 showed much lower profits than the previous year due to Covid and to the fact that the witness had down sized the business, shut the Dublin office and had just retained some good customers. The witness said that he had paid an additional €12000 to the Complainant at the end of 2019 somewhat ‘under duress’. Under cross examination, the witness denied that he knew that the Complainant would be returning to the business before he left for the U.S. In response to questions from the Court, the witness accepted that there was no employment contract in place for the Complainant, there was no letter of resignation and that there was nothing in writing to assist the Court. The witness said that he believed he would have paid the Complainant for any outstanding annual leave before he left for the U.S. He stated that the Complainant left of his own accord. The witness said that he had agreed to pay the bonus to the Complainant on the basis of a full year’s service, that he had to be in employment at the end of the year to qualify and that if the Complainant left the employment in the course of the year, no bonus was payable. Mr. Shane Mathews: Mr. Mathews is the Complainant. The witness confirmed that the contents of his submission were the truth to the best of his knowledge. The witness emphasised that when he left to go to the U.S. in 2015 he did seek permission to do so and it was known by the Respondent that he would be returning to the employment. He stated that the Respondent had long-term plans that involved him and that he had discussed these with Mr. Healy. The witness noted that it was not true to say that the bonus terms had never deviated as in 2016 he had received a bonus of 10% of profits for the whole year although he had only worked for 6 months of the year. Under cross examination, the witness accepted that he had no evidence in writing to support his claim for a pro-rated bonus. It was put to the witness that he was now asserting that he had discussed his departure in 2015 with Mr. Healy but that Mr. Healy had said in evidence that this was not the case and the witness had not questioned him on the matter at that time. The witness said that he was not well versed in these matters. He said that he did not exactly ask Mr. Healy if he could go on holidays but he said that it was false to claim that there were no plans for his return. It is put to the witness that he assumed he had a right to return but that there was no such arrangement. The witness said that he had a visa for only 90 days and that his return was not an assumption but was definite. In response to questions from the court, the witness referred to his submission in which he said that in 2015 it was always his intention to return and that Mr. Healy had accepted his absence. He noted that he needed to return to college and that he resumed work shortly after his return. The witness said that nobody had done his job in his absence. The witness confirmed that his P45 was given to him in 2014 at his request as he needed it to avoid emergency tax when he took up new employment but that he had not made any request in 2015. THE APPLICABLE LAW: Minimum Notice and Terms of Employment Act: 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 theFirst Scheduleto this Act shall apply for the purposes of ascertaining the period of service of an employee and whether that service has been continuous. Decision of Labour Court on appeal from decision referred to in section 12 12A. A decision of the Labour Court undersection 44of the Workplace Relations Act 2015, on appeal from a decision of an adjudication officer referred to in section 12, shall affirm, vary or set aside the decision of the adjudication officer.
1. The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by— (a) the dismissal of the employee by his employer, or (b) the employee voluntarily leaving his employment. 10. If an employee is absent from his employment for not more than twenty-six weeks between consecutive periods of employment because of— (a) a lay-off, (b) sickness or injury, or (c) by agreement with his employer, such period shall count as a period of service. DELIBERATION: The issue in this case for the Court is to determine if a period in 2015 when the Complainant travelled to the U.S. was, as he asserts, a period of leave or whether, as the Respondent asserts, the employment relationship was concluded when the Complainant left and that when he returned he joined the Respondent again in a new employment relationship. The significance of this is in determining the period of continuous service for the purposes of calculations under the Act. If the Respondent’s argument is accepted then the Complainant’s continuous service was 4 years and 6 months, entitling him to minimum notice of 2 weeks when his employment was terminated. This is the amount provided to him. On the other hand, if the argument of the Complainant is accepted, his continuous service was 5 years and 2 months, entitling him to notice of 4 weeks or payment for same. There is a direct contradiction between the parties as to whether or not it was understood in 2015 that the Complainant was simply leaving on a 90 day visa, with the intention of returning to the employment after that period and with a clear understanding and agreement on the part of the Respondent that he would be doing so. There is no documentary evidence available to the Court. The one and only fact that is of any possible assistance to the Court is that when the Complainant left the employment in 2014 he requested, and was given, a P45 and that when he left in 2015 he neither requested nor was given a P45. As the Court finds it difficult to determine from the evidence given as to which version reflects the truth, it is to this fact that the Court gave its consideration. The Court acknowledges that a P45 would not have been an immediate requirement for the Complainant in 2015 as he was leaving the country for a period and that it could be argued that for this reason he neither requested that document nor was there any pressure on the Respondent to provide it. However, on balance, the Court, noting that there is a legal requirement on employers to provide a P45 to an employee when they leave their employment, feels that it cannot ignore the fact that this was provided in 2014 in clear recognition by both parties of the termination of the employment but was not provided in 2015 when the Complainant left for the U.S. This suggests, on the balance of probabilities, that the parties understood that the employment relationship was not being severed and that the Complainant was free to resume his employment on return from the U.S. On that basis, the Court concludes that the appeal must fail. The weekly pay of the Complainant when he was made redundant was €960 per week. The Complainant, mistakenly, believed when making his complaint that his entitlement under this Act was subject to a limit of €600 per week. That is not the case. That limit is applicable under the Redundancy Payments Act. Under the Minimum Notice legislation, the weekly pay to be used for reckoning entitlements is actual pay. Accordingly, the statutory entitlement of the Complainant is for 4 weeks’ notice and any payment in lieu of notice is calculated based on €960 ( which when multiplied by 4 = €3840). The Court determines that this amount must be paid by the Respondent to the Complainant in respect of his notice, less any notice period given prior to redundancy or any payment made already in lieu of same. FINAL DETERMINATION: The Decision of the Adjudication Officer is upheld.
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