Complainant

Respondent

Parties

Patricia  O’Malley

Pallomar Limited

Representatives

Self-Represented

Mr. Joe Bolger, ESA Consultants

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00039759-002

11/09/2020

The Complainant commenced employment with the Respondent on 23rd November 1989. At all relevant times the Complainant role was described as that of “Restaurant Manager”. The Complainant was a full time, permanent employee, in receipt of a weekly salary of €710. The Complainant’s employment was terminated by reason of redundancy on 10th August 2020.

On 11th September 2020, the Complainant lodged the present complaint with the Commission. On the “Complainant Specific Details” section of the complaint form, the Complainant alleged that,

“I got paid 36,756 from the DEASP with no Pay in Lieu of Notice which should have been 4,800 for 30 years”.

On the “Redress Option” section of the form, the Complainant selected adjudication under Section 39 of the Redundancy Payments Act, 1967.

By submission received on 11th November 2020, the Respondent denied the Complainant’s allegation. In the course of this submission, under the heading “Minimum Notice and Terms of Employment Act 1973” the Respondent set out a detailed and technical defence to the Complainant’s position regarding the alleged non-payment in lieu of notice. By responding submission dated 16th November 2020, the Complainant submits that,

“I was not given the option to work my notice so I should receive 8 weeks as per Minimum Notice and Terms of Employment Acts 1973-2005.”

At the hearing of the matter, these issues regarding the alleged non-payment of notice were canvassed thoroughly by the parties. In these circumstances, it is apparent that the complaint referred related to the non-payment of notice, the Respondent’s submission defended this complaint, the Complainant clarified the allegation in further correspondence and the matter was robustly defended at hearing. Having regard to the same, it is apparent that only indication that the present complaint relates to the Redundancy Payments Acts, is the selection of the “redress option” on the online complaint form.

In the matter of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan [2009] IEHC 370, McGovernJ. held that,

“I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.”

McGovern, J. went on the state that,

"the respondent...must be given a reasonable opportunity to deal with these complaints and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice."

In the matter of Clare County Council v Director of Equality Investigations [2011] IEHC 303 Hedigan J. held that,

“It is clear from the foregoing that because the EEI form is only designed to set out the generality of a complaint, complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken by surprise, or alternatively given adequate time to answer, there can be no injustice therein.”

Finally, in the matter of Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210, Charleton J. held that,

“It follows from the foregoing that a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice. For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it. If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.”

Having regard to the foregoing, I find that the matter referred by the Complainant was one under the Minimum Notice and Terms of Employment Act. The Respondent was on notice of the same, fully defended the allegation and consequently cannot be said to have suffered any prejudice. In these circumstances, and having regard to the authorities listed above, I find that it would be unfair to bind the entirety of the Complainant’s referral to a box she selected on a non-statutory form. Having regard to the foregoing I find that the matter should proceed under the Minimum Notice and Terms of Employment Act 1973.

The Complainant was engaged as a restaurant manager for the Respondent. On Sunday 15th March 2020, the Respondent premises ceased trading as a result of restrictions imposed on foot of the Covid-19 pandemic. As a consequence of the same, the Complainant was entitled to, and received, the Pandemic Unemployment Payment (PUP).

On June 15th, following a redundancy consultation process, the Complainant received notification of her statutory redundancy calculation. In subsequent correspondence, the Complainant raised issue with the omission of a payment in lieu of notice. The Complainant was of the view that she should be compensated for the same in circumstances whereby she could not work her notice. By correspondence dated 11th November 2020, the Respondent replied stating that as the Complainant had given notice of her intention to claim redundancy on foot of a period of lay-off, she was deemed to have voluntarily left her employment, and consequently she had no entitlement to a notice payment.

By submission, the Complainant stated that the Respondent’s position outlined above was factually incorrect. She stated that as a consequence of the provisions of the Emergency Measures in the Public Interest (Covid-19) Act, she was statutorily prevented from voluntarily engaging the redundancy process on foot of a period of lay-off. She submitted that the redundancy was compulsory in nature and as a consequence of the same, she was entitled to 8 weeks pay in lieu of statutory notice. 

By response, the Respondent denied the Complainant’s allegation.

The Respondent accepted that the Complainant was placed on notice of risk of redundancy on 15th June 2020. The Respondent further accepted that the Complainant was made redundancy on 10th August 2020. The Complainant’s dates of service and average weekly earnings were also agreed.

By submission, the Respondent accepted that the Complainant’s employment would normally attract a notice period of eight weeks by virtue of Section 4(2)(b) of the Minimum Notice and Terms of Employment Act 1973. Notwithstanding the same, the Respondent submitted that the legislature had identified certain circumstances whereby notice would not be paid. In particular, the Respondent referred to Section 4(5) of the First Schedule to the Act. This subsection provides that,

“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 Respondent accepted that the fact of the Complainant having been made redundant following a period of lay-off was not of her doing, however they further submitted that the situation was imposed on them by the restrictions arising from the Covid-19 pandemic.

In addition to the foregoing, the Respondent referred to Section 5(3) of the second schedule of the Act. This section provides that,

“Subject to paragraph 4 of this Schedule, an employer shall pay to an employee, if there are no normal working hours for that employee under the contract of employment in force in the period of notice, in respect of each week in the period of notice, a sum not less than the average weekly earnings of the employee in the thirteen weeks next preceding the giving of notice.”

Having regard to the same, the Respondent submitted that in the thirteen weeks preceding the Complainant’s redundancy, she was not provided with any hours due to the premises being closed as a result of the Covid-19 restrictions. During the consignable period for the purposes of this subsection, the Complainant was in receipt of the Pandemic Unemployment Payment. Following the Complainant’s redundancy, she continued to receive this payment for the duration of the eight week period. In these circumstances, the Respondent submitted that the Complainant had, in fact, received payment in lieu of notice in line with the term of the Minimum Notice and Terms of Employment Act 1973. 

In the present case, the factual matrix relevant to the matter is broadly agreed by the parties. It is agreed that the Complainant was placed on lay-off on 15th March 2020. It is agreed that he Complainant was made redundant, following an internal procedure, on 10th August 2020. It is the Complainant’s contention that she was entitled to a payment of eight weeks statutory notice on foot of this redundancy. The Respondent’s answer in this regard is twofold; firstly they submit that the Complainant had no entitlement to a notice under the terms of the Act, secondly, and without prejudice to the foregoing, they submit that the Complainant’s notice payment was nil according to the second schedule of the Act.

Regarding the first point, I note Section 4(5) of the First Schedule to the Act provides that,

“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.”

In this regard, I note that the Complainant submitted that she did not voluntarily leave her employment, but that she was the subject of a compulsory redundancy process. In this regard I note that the subsection provides that once the redundancy is “in respect of lay-off” they are “deemed” to have voluntarily left their employment. The crucial criterion in this regard is whether the redundancy was in fact in respect of lay-off.

Section 1 of the Minimum Notice and Terms of Employment Act provides that “lay-off” for these purposes, “has the meaning assigned to it by the (Redundancy Payments) Act of 1967”.  In this regard, I note that Section 12 of the Redundancy Payments Act permits an employee to trigger their redundancy following a period of lay-off. Further to the same, I note Section 29 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 provides that,

“Section 12 shall not have effect during the emergency period in respect of an employee who has been laid off or kept on short-time due to the effects of measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19.”

Having regard to the same, I find that the redundancy of the Complainant was not in respect of lay-off as defined in the Redundancy Payments Act. At the relevant time, legislation was in force that rendered the operation of Section 12 illegal. As such, it cannot be said that the redundancy in this situation was “in respect” of lay-off, as the same could not be triggered by the Complainant. In light of the same, I find that Section 4(5) of the First Schedule to the Act does not apply to this matter. Consequently, the Complainant cannot be deemed to have left her employment voluntarily and she had an entitlement to a notice payment. 

The second defence advanced by the Respondent is that in the thirteen weeks preceding the Complainant’s redundancy, her average earnings constituted entirely of the Pandemic Unemployment Payment, and as such she did receive adequate payment in lieu of notice.

In this regard, Section 5(3) of the Second Schedule of the Act provides that,

“…an employer shall pay to an employee, if there are no normal working hours for that employee under the contract of employment in force in the period of notice, in respect of each week in the period of notice, a sum not less than the average weekly earnings of the employee in the thirteen weeks next preceding the giving of notice.”

In the instant matter, the Complainant received notice of her impending redundancy on 15th June 2020. This correspondence outlined that exactly eight weeks later, on 10th August 2020, the Complainant would be made redundant. During those eight weeks (this being the statutory notice period), the Complainant did not receive her salary but instead remained on the Pandemic Unemployment Payment. At the hearing of this matter, the Respondent submitted that the Complainant had no further entitlement in light of Section 5(3) of the Second Schedule of the Act.

In this regard, I note that the period of thirteen weeks prior to the giving of notice commenced on 17th March 2020. On this date the Complainant has just commenced her period of unpaid lay-off. In circumstances whereby the average payment by the Respondent was nil during this period, they submit that the rate of pay for the notice period is also nil.

In the matter of Irish Leathers Ltd. v. Minister for Labour [1986] I.R.  177, Barrinton J. held that an employee that had been laid-off, and subsequently placed notice of redundancy, was not then laid off but was in fact an employee on notice of dismissal. In such circumstances, the employee is entitled to paid in respect of any time during their normal working hours when they were ready and willing to work but when no work was provided for them.  In the matter of Industrial Yearns v Greene [1984] I.L.R.M. 15, Costello J. held that during a period of lay-off there is a “cesser of employment, but the contract still subsists”. Likewise, in the matter of McDonagh -v- Shoreline Taverns [2014] 25 E.L.R. 98 the Employment Appeals Tribunal held that during a period of lay-off a contract is “temporarily suspended”.

In such circumstances, it is clear that the contract of employment temporarily ceased from the date on which the Complainant was laid off, and re-activated on the date on which she received notice of redundancy.  Having regard to the same, I find that the “the thirteen weeks next preceding the giving of notice” for the purpose of Section 5(3) of the Second Schedule run from the thirteen weeks prior to the period of lay-off. As a consequence of the same the Complainant notice is entitlement is eight weeks at her normal salary of €710, and her complaint is well-founded. 

I find that the complaint is well-founded. Regarding redress, I find that the Respondent should pay the Complainant the sum of €5,680, being the equivalent of eight weeks’ notice at the normal rate of pay.

Notice, Lay-Off