Complainant

Respondent

Parties

Paula  Kearney

Sublimity Therapeutics Limited (In Liquidation)

Representatives

  Self-Represented

Mr. Alan O’Driscoll

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-00045307-002

14/07/2021

The Complainant commenced employment with the Respondent on 12th October 2020. Almost six months later, on 7th April 2021, the Complainant’s employment was terminated by reason of redundancy.

On 14th July 2021, the Complainant referred the present complaint to the Commission. Herein, she alleged that her contract provided for a three month notice period and, as a consequence of the same, she was entitled to pay in lieu of notice on the termination of her contract. By response, the liquidator of the Respondent agreed with the Complainant’s submission and accepted that she was entitled to three month’s pay in lieu of notice.

A hearing in relation to this matter was convened and finalised for 1st April 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

At or near the outset of her employment, the Complainant received a contract of employment. This contract contained a submission stating that her employment was subject to a three month notice period. In April 2021, the Respondent business closed down, and entered liquation shortly thereafter. As a consequence of the same, the Complainant was made redundant, without receiving her contractual notice. On foot of the same, the Complainant submitted that she was entitled to payment in leiu of her contractual notice, or three months of her normal salary.

As the Respondent was undergoing liquidation on the date of the hearing, they were represented by the appointed liquidator. The representative for the Respondent accepted that the Complainant had a three-month contractual notice period, and that she was entitled to payment in lieu of the same on the termination of her employment. In light of the same, the Respondent did not contest the Complainant’s application.

Section 4(2)(A) of the Act provides that an employee with less than two year’s tenure with an employer accrues a statutory notice entitlement of one week.

It is further noted that Section 4(1) states that that notice accrued by virtue of Section 4(2) is a “minimum” period of notice, an employee may well enjoy a contractual provision that allows a lengthier notice period. In the instant case, this is what has occurred. The Complainant’s statutory notice is one week, while her contractual notice is far in excess of the same, at three months.

In the matter of In Jameson v MCW Ltd M 878/1983 the Employment Appeals Tribunal held that, “…the statutory notice period should occupy the last appropriate number of weeks of the contractual notice.” The import of the same is that an employee cannot be deemed to be provided with statutory notice in accordance with the Act until the expiry of their contractual notice minus the statutory period. As a consequence of the same, the Complainant is entitled to payment in lieu if her contractual notice period on the termination of her employment. In this regard I note that the Respondent is in agreement with this position and the Complainant’s allegation is not contested.

In circumstances whereby the Complainant’s average monthly salary was €2,807.68, I find that the Complainant is entitled to payment in lieu of three month’s salary, or €8,423.04.

Section 12(1) of the Act (as amended) empowers me to direct that,

“...the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.”

I find that the Respondent is in contravention of Section 4(2). In circumstances whereby the Complainant is entitled to payment in lieu of three months’ salary, I direct the Respondent to pay the sum of €8,423.04.

Contractual Notice, Statutory Notice