Complainant

Respondent

Parties

Salvatore  Severino

SEB Life International

Representatives

Crushell & Co Solicitors

MP Guinness B.L.  instructed by Hayes Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00043322-001

30/03/2021

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

CA-00043322-002

30/03/2021

The complainant commenced employment on March 16th, 2020. At a meeting on January 14th, 2021 he was told that his employment was being terminated. A preliminary issue arises as to whether the notice period brings him within the jurisdiction of the Unfair Dismissals Act.

The complainant does not have twelve months service with the respondent and cannot therefore maintain a claim under the Unfair Dismissals legislation. He commenced his employment on March 16th, 2020.  On the complaint form, the complainant indicates that his date of dismissal was 21st March 2021. This is incorrect.

He was employed on foot of a contract of employment (submitted).  Under clause 13 of that Contract of Employment it states under the heading “Notice”

 ‘In the event of termination of your employment, you are required to give the Company two months’ notice and the Company undertakes to give  you two months’ notice or such notice period as is required by statute, whichever is longer.

However, both parties are free to waive their right to notice. Any notice to be given pursuant to this clause shall be given in writing.   The Company reserves the right to make payment of salary in lieu of such period of notice. The Company also reserves the right to require you, and you hereby agree if so required, not to attend for work for any such period of notice.

The complainant passed his probation period and there were no problems with  his performance.However, there was a company re-organisation in September 2020, and he was assigned to work as part of a programme delivery team, about which he was aggrieved.He was no longer reporting to the Head of IT but to the Team Lead and it appearsthathefeltheshouldhavebeentheTeamLead.

Eventually,acompromise was agreed involving the complainant continuing to report to the Head of IT but still working as part of the team.However, he continuously complained  about the Team Leader and he was reminded that, as the re-organisation was part ofmanaging the company, if he could not co-operate then he would have to leave.

It was because of his failure to engage and work properly within this newly re-organised structure that a decision was taken to terminate his employment.

The Contract of Employment provides for written notice ofthe termination of employment.The complainant was informed orally by the Head of IT onJanuary 14th that his employment was being terminated and itwas confirmed by HR at a meeting on January15th thatit would be terminated effective immediately.

He was told in writing on January 15th, 2021 that he was being paid in lieu of his contractual notice of two months in accordance with his Contract of Employment. (It is accepted that the letter dated 15th January 2021 was not finalised until 21st January 2021), but it confirmed the termination in writing.)

In relation to the date of dismissal Section 1 of the Unfair Dismissals Act provides that

(a)   Where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

(b)   Where either prior notice of such termination is not given or the notice given does not comply with the provisions of the Contract of Employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates-

I.    The earliest date that would be in compliance with provisions of the Contract of Employment,

II.   The earliest date that would be in compliance with the provisions of the minimum notice and terms of Employment Act, 1973.

If the Adjudicator does not accept that the termination of employment was valid on 15thJanuary,becauseitwasmadeorallyandnotinwritingassetoutintheContractofEmployment then the latter of January 15th, 2021 and emailed to the complainant on January 21st was effective in terminating his employment at the very latest on that date.

Because there is a valid “payment in lieu of notice” clause the respondent paid him two months in lieu of notice. This brought his employment to an end in accordance with the Contract of Employment as the respondent is entitled to do.

His employment terminated with effect, at the very latest, on January 21st, 2021 and he does not have the requisite service to maintain an unfair dismissal claim under the legislation as he was not employed for months.

On January 15th there was phone call between the complainant and Ms LauraShackleton in the HR team who he told that he had had a meetingwith his manager, Mr Fallon, the previous afternoon and that he had been informed was terminating his Contract of Employment immediately.

The complainant’s access to email, drives etc had been removed as of close ofbusiness on January 14th, 2021.Ms Shackleton indicated that the reason for the termination ofemploymentwasnotrelatedtothe complainant’sperformanceandto hisunwillingnesstoagreetoandfitinwithaneworganisationstructure.

She pointed out that the complainant had had numerous meetings and consultations withhismanageraftertheNovember25thmeetingandhaddiscussedhiscontinued  resistancetotheneworganisationstructureatthesemeetings.

She asked him if he had any other questions about the termination of his employment or about the draft Compromise Agreement that had been sent to him.   He said that he wished to have more time to read over it and wanted to take legal advice.

On January 20th, there was a Teams call between the complainant and MsShackleton.He raised a number of issues with the CompromiseAgreement and sought additional payments and stated that he felt that the dismissal process hadbeen unfair.

The following day there was another call between them, following which Ms Shackleton emailed him a revised Agreement and also the Termination of Employment Letter.

A further Teams meeting took place between with HR on January 25th, during which the complainant confirmed that, although he had been employed for lessthan twelve months, he was going to take a claim for unfair dismissal.

On January 26thMs Shackleton wrote to the complainant confirming the termination of his contract ofemployment as of January 15th, 2021, and that the remainder of the payment in lieu ofnotice period would be paid through payroll on Friday January 29th plus other outstanding payments.On January 26th, 2021, the complainant appealed but as the termination was not related to performance there was no appealprocess.

The complainant understood that his employment was terminated on January 15th, and he acquiesced in this termination. He did not raise any concerns when he was not required to work and also when his access to the IT systems were cut off between January 14th and 15th 2021, both confirming that his employment had terminated immediately. The Complainant’s employment was terminated in accordance with the Contract of Employment.

It is denied that the Complainant was not paid his full entitlement at the end of his employment. A copy of the final payslip was submitted.

The complainant commenced employment on March 16th, 2020. On January 14th, 2021, at      a meeting with his line manager his termination of employment was discussed. On January 21st, 2021, he received a letter of termination which referred to his termination with effect from January 15th, 2021. The document was created on January 21st, 2021.

He later received payment in lieu of notice on 29 January 2021.He did notconsent to payment in lieu of notice or the manner in which he was terminated.Therefore,hiseffectivedateofterminationofemploymentwasMarch 21st, 2021. The complainant wasentitledtotwo-months’noticeperthetermsofhiscontractofemployment. He is a project manager with twelve years’ experience.

He commenced with the respondent at the height of the Covid pandemic. The respondent was not in a position to operate remotely for all staff. Many resources were required to physically attend the office despite the health and safety concerns expressed by many employees. This obviously caused significant stress for the complainant.

The complainant was hired to review the core processes and digital infrastructure of the respondent.This was asignificant programme and there was nopreviouslyfunctioningproject managementstructures orsystems. Hewouldregularlyengagewithhislinemanager,theheadofIT.

On January 14th, he was working from home and in the course of a call, he was told that his employment was being terminated, he would be offered an exit package and that it was recommended he sign this agreement as soon as possible and provide a resignation letter.

He was not comfortable with this and refused to accept the termination. He was ambushed during this meeting as he had passed his probationary period and had displayed tremendous commitment and professionalism. He had never been the subject to any warnings, disciplinary proceedings or negative performance appraisals.

He had received no prior written warning about this meeting or told in  advance  the purpose of the meeting or offered the right to be accompanied. There was nobody else in attendance and no minutes of the meeting were taken or ever provided to the complainant. After he left the meeting, he was locked out of all Company systems.

He contends the respondent unfairly effected the dismissal.

An Adjudication Officer must, in determining if a dismissal is unfair, have regard to the  reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7 of the Unfair Dismissals Act).

The general approach of the Tribunal and the WRC to cases for dismissal for conduct was set out in Hennessy – v – Read and Write Shop Ltd UD 192 /1978.

“In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and the conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

This requires the decision maker to consider whether the complainant was made aware of all the allegations and complaints that formed the basis of the proposed dismissal, whether hr had adequate opportunity to deny the allegations or explain the circumstances before the decision to dismiss was taken, whether the respondent believed he had conducted himself or herself as alleged, whether the respondent had reasonable grounds to sustain that belief and if so whether the penalty of dismissal was proportionate to the alleged misconduct.

The respondent failed to follow these procedures and there was an absence of due process and fair procedure with respect to his dismissal.

(Submissions were made on the relevant case law.)

It is not the function of the Adjudicator to establish the guilt or innocence of the employee. Rather, it is to assess what a reasonable employer might have done in the same circumstances.

Fair procedures must be applied at every stage of the dismissal process, for example when conducting disciplinary hearings; carrying out investigations; writing reports; making determinations or decisions; and reaching conclusions. 

The respondent failed to follow these procedures and that there was an absence of due process and fair procedure with respect to his dismissal.

Regarding the date of dismissal, the Unfair Dismissals Act give dismissed employees the right to bring a claim for unfair dismissal against their former employer. To benefit from the Acts, employees covered must, inter alia have at least twelve months’ continuous service with the company; Be aged over 16 years.

We further note that the Minimum Notice and Terms of Employment Act 1973 does not prevent the parties agreeing to acceptpayment in lieu of notice. However, in this instance, the complainant immediately protested the dismissals process and sought engagement to remedy the issue. He immediately sent an appeal letter disputing the reasons for and manner of the ‘termination’. In short, the payment in lieu of notice was not accepted       and always remained contested.

The “date of dismissal’ is defined in Section 1 of the 1977 Act as meaning: -

(b) Where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i)    the earliest date that would be in compliance with the provisions of the contract of employment,

(ii)   the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973.

The relevant provisions of the 1973 Act are as follows:

Section 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.

Subsection (5) provides; Any provision in a contract of employment, whether made before or after the commencement of this Act, which provides for a period of notice which is less than the period of notice specified in subsection (2) of this section, shall have effect as if that contract provided for a period of notice in accordance with this section.

Section 7 provides:

(1)  Nothing in this Act shall operate to prevent an employee or an employer from waiving his right to notice on any occasion or from accepting payment in lieu of notice.

(2)  In any case where an employee accepts payment in lieu of notice, the date of termination of that person’s employment shall, for the purposes of the Act of 1967, be deemed to be the date on which notice, if given, would have expired.

We refer to 21.73 in “Dismissal Law in Ireland” by Mary Redmond:

“Under s. 1 of the Unfair Dismissals Act 1977, the date of dismissal is defined as the date on which a notice of termination expires or would have expired where the notice is, or would have been, in accordance with the contract of employment or with the Minimum Notice and Terms of Employment Act, 1973, whichever is the greater.”

Redmond continues at paragraph 21.77:

“If a contract lays down a notice period, it will technically be a breach of contract to give pay in lieu of notice unless this right is reserved to the employer. If it is, and an employee accepts payment of wages in lieu of notice, the date of dismissal will be the date on which termination takes effect, as the contract will have been determined in accordance with its terms. If there is no right to give pay in lieu of notice in the contract the EAT will treat the case as a no notice one and will add on the contractual or statutory notice whichever is the greater.”

We further refer to the decision in Action Health Enterprises Limited and Michael D’Arcy (ADJ-00014891):

“Section 7(1) provides that nothing in the 1973 Act operates to prevent an employee (or an employer) from waiving his or her right to notice, on any occasion, or from accepting payment in lieu of notice. The term in his contract of employment, upon which reliance is placed, provides, in effect, that the Respondent has the right to pay him in lieu of notice.

That provision reserves to the Respondent the right to terminate the contract without notice and to make payment in lieu thereof.

However, in order for the Complainant to “accept payment in lieu”, there must have been an offer and a free acceptance of that offer.

It followsthat where the respondent relies on this provision by simply paying wages in lieu of notice thereis no offer, in any meaningful sense, and there can be no acceptance. Consequently, it appearsthat this contractual provision is inconsistent with the 1973 Act and cannot be relied upon toassertthattheComplainantagreedtoacceptpaymentinlieuofnotice.Itisquestionablewhetherthe contract itself could allow the Respondent, at its sole discretion, to determine that theComplainanthadwaivedhisrightto noticewithinthemeaningofthe1973Act.”

In Superwood Holdings plc v Sun Alliance & London Insurance plc [1995] 3 I.R. 303 Blayney J quoted with approval the following passage from the decision of Budd J. in Coen v Employer's Liability Assurance Corporation [1962] I.R. 314: -

“….the repudiating party cannot be allowed to approbate and reprobate. He cannot thus be allowed to say: ‘I deny the existence of the contract which you say exists between us, but I also rely on a term of that contract ….”

In this instance, the respondent argues that it effectively terminated the complainant’s employment on January 15th, 2021, gave notice of same on 21 January 2021 and made payment in respect of same on 29 January 2021. We argue that the actions of the Respondent are inconsistent with the contract of employment between the parties and the policies and procedures of the Respondent, and therefore the Respondent should not be afforded an opportunity to rely upon selective provisions.

We contend that notice was not properly given in accordance with the contract of employment and therefore the Respondent should not be afforded the opportunity to circumvent its responsibilities under contract, or statute.

The preliminary point in relation to the complaint is whether the complainant meets the general requirement to have twelve month’s service to make a complaint under the Unfair Dismissals Act, 1977.

(There are some specific exceptions to that general requirement, but they do not apply in this case).

The complainant has made submissions on aspects of the fairness of the procedure followed by the respondent. Indeed, this is the basis on which most, though not all complaints of unfair dismissal are contested. However, that is a matter to be addressed only if the complaint is within the jurisdiction of the Act

His employment began on March 16th, 2020. The respondent says that he was told orally on January 14th of the intention to terminate his employment.

This was followed by a letter which, while dated January 15th is accepted to have been delayed by some further few days until January 21st but nothing turns on this delay. If that date were not in dispute, it would be fall within the twelve-month period.

The controversy turns on whether the complainant’s notice period of two months carries him over the eligibility threshold of twelve months. He says that by starting the clock on January 21st and applying the two months’ notice period this would bring him to March 21st, some five days approximately over the one year’s service requirement.

It is not disputed that he did in fact receive payment in lieu of notice on January 29th, although he says that he did not consent to this arrangement.

Of critical relevance here is his contract of employment. As submitted above by the respondent clause 13 of that Contract of Employment under the heading “Notice” states as follows.

 ‘In the event of termination of your employment, you are required to give the Company two months’ notice and the Company undertakes to give you two months’ notice or such notice period as is required by statute, whichever is longer.

However, both parties are free to waive their right to notice. Any notice to be given pursuant to this clause shall be given in writing.   The Company reserves the right to make payment of salary in lieu of such period of notice. The Company also reserves the right to require you, and you hereby agree if so required, not to attend for work for any such period of notice.

The underlining has been added for emphasis and for the obvious reason that this is the basis that will essentially determine the matter. This clearly gives the employer a unilateral right to make a payment of salary in lieu of the period of notice based on the terms of the contract of employment.

It does not require, as suggested by the complainant, his agreement.

Indeed, there was no evidence that he disputed this arrangement at the time, and he accepted the payment. He was, unsurprisingly unhappy about the proposal to terminate his employment but there was no evidence that he specifically contested the payment in lieu proposal.

Indeed, the submissions (including that from the complainant) referring to the provisions of the Minimum Notice and Terms of Employment Act 1973 reinforce this.

Specifically, the reference to Dr Redmond at paragraph 21.77:

“If a contract lays down a notice period, it will technically be a breach of contract to give pay in lieu of notice unless this right is reserved to the employer. If it is, and an employee accepts payment of wages in lieu of notice, the date of dismissal will be the date on which termination takes effect, as the contract will have been determined in accordance with its terms. If there is no right to give pay in lieu of notice in the contract the EAT will treat the case as a no notice one and will add on the contractual or statutory notice whichever is the greater.”

In this case the contract of employment clearly reserves such a right to the employer.

Despite those attempts to suggest that the complainant did not agree to this, in fact he accepted the payment and acquiesced in the arrangement. In any event I do not think that once the contract permits it and that contract has been accepted by the employee, he or she may dispute it, or decline to accept it on the basis suggested by the complainant in this case.

It is accepted that the complainant was very unhappy about the proposed termination of his employment, but the direct evidence of the HR Manager, Ms Shackleton was to the effect that at no stage did he object to payment in lieu of notice.

The complainant did tell his manager at the January 15th meeting that he needed time to consider the settlement proposals, but according to Ms Shackleton’s evidence that was not raised at the subsequent meetings on January 20th or 21st when he was told about arrangements for payment.

As already noted, even had he done so, I do not believe that this is sufficient to set aside the provision in the contract referred to above permitting the company to do so.

Accordingly, I find that the date of termination was January 21st, 2020, and that this brought the employment to an end after just over ten months after its commencement, and that the complaint is not within jurisdiction.

On the basis of this finding no claim arises either under the Payment of Wages Act. The complainant was paid all wages due to him.

For the reasons set out above complaints CA-00043322-001 and 002 are not well-founded.

Termination, Notice payment, jurisdiction.