Complainant

Respondent

Parties

Nevan  Holland

Doyle Shipping Group, Unlimited Company (amended on consent, at hearing)

Representatives

  Appeared In Person

Jenny Wakely and Tara Kelly, Anne O'Connell Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00056549-001

09/05/2023

On 9 May 2023, the Complainant submitted that he had not received the appropriate payment in lieu of notice on termination of employment as a Master Tug Captain.

The Respondent, a Shipping Group was placed on notice of the claim on 12 May 2023.

The Complainant has come to the case as a Litigant in Person. On February 2, 2024, he submitted a written statement and supporting documents in this case. These were shared with the Respondent in the case.

On the same day, the Respondent Representatives were confirmed as Anne O’Connell Solicitors. The Respondent submitted a written submission on February 9, 2024, which was shared with the Complainant.

Both parties attended and participated fully in the hearing of this matter.

At the conclusion of the hearing, I requested that the Complainant provide two documents referred to in his evidence.

1 A document which placed a dateline on when he accepted the new position.

2 A Revenue record of the end date attributed to the employment in this case.

The Complainant undertook to provide these to the WRC . There was a delay before a response was received , but the complainant was unable to provide the first document and concurred with the Respondent declared end date with regard to the second requested document .

The parties agreed to the amended Respondent Legal title as Doyle Shipping Group, Unlimited Company.

The Complainant outlined that he commenced work as a Master Tug Captain on December 2, 2021, until 31 March, 2023.  

His employment concluded by resignation dated 24 March 2023 to enable him to take up a career enhancing role.

He has taken issue with the manner in which his pay was managed towards the end of his employment. The Complainant submitted that his payment to 31 March 2023, did not incorporate pay in lieu of notice. He submitted that the Respondent had informed him that no liability for this payment arose as he was not at work.

Evidence of the Complainant:

The Complainant outlined that during February 2023, he learned that he had been successful in his application for a position at the Port of Cork.

On that day, he had chatted with his supervisor and informed him of his success and stated his intention that he would commence in the role in April or May and submit his notice towards the end of March 2023.

On 24 March 2023, at 05:23 hrs, he submitted his formal notice by email to the Respondent Human Resource Dept and copied to his supervisor. He understood that he would receive his contractual notice of 4 weeks’ pay.

“I unfortunately am tending my resignation today due to receiving another job offer which I have chosen to accept. Please consider this email my notice as per my contract …….”

He did not receive feedback and followed it up on April 25, 2023.

“I have not received any form of confirmation or exit paperwork? Also, I have not received my final payment for the notice period “

 On 26 April 2023, the Complainant was informed that he was not to be paid for his notice.

The Complainant took issue at the manner in which the Respondent handled this issue by their interpretation that he had worked his notice period and had taken pre booked leave.

The Complainant denied that he had either mentioned or agreed to a cessation of employment date of 31 March 2023.

He recalled the afternoon of February 25, 2023, when he had learned that his application had been successful by the incumbent employer. He accepted the offer of the new position on March 24, 2023. He told the hearing, that in conversation with his Supervisor, Mr Kelly, he told him he would be leaving, but would formalise this as soon as more details emerged.

“When I knew I had to resign “.

He communicated his resignation by email on March 24, 2023, and the Company had committed to paying him what he owed.

He outlined the work pattern undertaken at the respondent employment and explained that he had been planning for a personal event long term and the company had committed to arranging cover for that leave during March 2023 as he would be out of the country.

During cross examination, the complainant confirmed that he accepted the new position on March 24, 2023.

Locum cover for the planned personal event had been agreed the year before. He confirmed that he had offered to provide some locum earlier, but this was not required.

The complainant confirmed that he had been paid for 3 days.

When asked if the company was enabled by contract, (clause 15.2.1) to pay in lieu of notice, the complainant responded that his notice should have reflected his email of March 24, 2023.

He clarified that he was not available to work his notice which followed this email.

In conclusion, the Complainant confirmed that he had been informed by the company that his employment had ended on 28 February, and he was not provided with this detail while he was employed.

He agreed to forward Revenue documents which placed his cessation date later than March 31, 2023.

He forwarded his resignation to the company when he could, and he felt he had been unfairly eclipsed by the Company in this regard.

He was not available to work the full notice period.

The Respondent accepted the duration of employment as running from 2 December 2021 to 31 March 2023.

The Respondent has rejected the claim made.

The Respondent is an Irish Shipping and Logistics Company. The Complainant worked a roll over work pattern referred to as:

“Tours of Duty “, which comprised two continuous weeks aboard a vessel, followed by two weeks off the roster.

The Respondent wished to acknowledge that both the Complainant and his immediate Supervisor had a good working relationship.

It is the Respondent case that on 25, February 2023, the Complainant informed his supervisor that he had been offered and had accepted a new role at Port of Cork, with a start date of 26 April 2023. The Respondent treated this as an oral notification of termination of employment.

Both Parties followed up on 28 February 2023 on the Boat and agreed that notice would run in the complainant’s case from 25 February 2023 to 31 March 2023, a five-week period, rather than the contractual 4-week period. 

The Respondent has denied that wages or payment in lieu of notice was owed or properly payable to the complainant. He left the employment on 14 March 2023 and was unavailable thereafter.

The Respondent understood that the Complainant had a personal event scheduled for 17 March 2023 and had previously arranged for a 5/6-week locum cover. He was due to finish work on 14 March 2023 and return on the 28th of April 2023. Mr Kelly was set to cover that period of absence on the complaints tour of duty. The Complainant was to owe him the time back. This comprised part of March 14, and 15-16 March 2023 and 31 March -13 April 2023. The Complainant was paid for March 14, 15 and 16 as a “good will gesture “.

However, as the Complainant left employment on 14 March 2023, the respondent moved to commence a new hire in post from 31 March 2023 which absolved the need for locum from that date. The Respondent submitted a text between Mr B and Mr Kelly dated February 28, 2023

“…….. Nevan has been called for pilots’ job, so he is heading away to X on 15th, so he will be effectively finished then, so if your good to go you will take over his Shift on X on Friday 31 March, so that’s the plan from this end “

The Respondent sought to rely on a handover document, whose author was not in attendance at hearing.

The Respondent also relied on an email communication from Mr Kelly dated 20 March which confirmed a finish date of 30 March 2023.

The Respondent Position

It was the Respondent position that the Complainant and his Supervisor agreed the termination date of March 31, 2023.

They were surprised to receive the document dated 24 March from the Complainant and denied that it constituted his notice of termination as this had already been served on the company on February 25.

The Respondent explained their perspective to the complainant on the telephone on 3 May 2023 and followed up by email two days later which summarised:

1 The Complainant agreed his end date on 25 February 2023.

 2 The notice period ran for 5 weeks to March 31, 2023, for which the complainant received payment, up to the end of March 2023

By means of legal submissions, the Respondent representative denied that the complainant had properly payable wages owed Dunnes Stores (Cornels Court) ltd v Lacey [2005] IEHC 417 and therefore no contravention of Section 5 had occurred.

The Complainant had removed all his personal belongings from the vessel by 14 March 2023, his last working day and this was 10 days prior to the email of March 24, 2023.

In the alternative, the Respondent submitted that once notice was served by the Complainant on 25 February 2023, he was not in a position to “unilaterally decide on a termination date that would have required an extension to his notice period “and commensurate with his commencing in a new role.

Reliant on A Cook v A Catering Company ADJ 17719, upheld on appeal to the Labour Court in Artisan Traditional Bakery Ltd and Ms Florina Avram, PWD 1924 as on point authority for no mechanism for an open adjustment of notice periods at an employee’s request.

The Respondent contended that the Labour Court determined that that respondent was entitled to waive its right to notice in line with Section 7(1) of the Minimum Notice and Terms of Employment Act 1973 -2015.

This was a case were following a 6-month tenure, the complainant in the case indicated that she intended to leave her employment on 11 November 2018. The Respondent did not agree with this and terminated the employment 10 days later as they needed a replacement.

Both Adjudicator and Labour Court did not identify that wages were properly payable in that context.

Once more, in the alternative, the Respondent argued that taken at its height, in terms of the March 24 email, the complainant still was not entitled to be paid as he was not available for work as he was outside of the jurisdiction. Schedule 2 of the Minimum Notice and Terms of Employment Act 1973 -2015.

Intec Billing Ireland v Lally PWD 1639, at the Labour Court was put forward as authority for no payment arising when “the complainant was not fit to work during her notice period “likewise, in Majella Long v Dunnes Stores (Cork) ltd UD 573/2007

The Respondent reserved the right to pay the Complainant in lieu of notice (as per his contract of employment) but chose not to do so.

Evidence of Mr Mick   Kelly, Tug Master and Supervisor

Mr Kelly outlined that he worked the opposite work pattern to that of the complainant. He submitted that he had offered to covert the complainants personal circumstance absence, for which the complainant had offered to work back in advance, but Mr Kelly had told him that he preferred to bank the time to recoup later.

Mr Kelly recalled that the complainant rang him from a weekend away on February 25. He told him that he would definitely be taking the job, and they would “sort it out next week “.

The Complainant informed him that he had not been given a start date. Mr Kelly told him that it looked unlikely that the complainant would be in a position to repay the planned locum time.

Mr Kelly submitted that he told the complainant that Mr B would be taking over from him on 31 March 2023. The Tug could not be unmanned. They shook hands and he sent Mr B a text to that effect.

The matter of termination was not discussed but he confirmed that the complainant was to be paid to March 31, 2023.

The Complainant removed all his belongings from the boat on 14 March 2023. Mr Kelly clarified that Mr B was never meant to cover the complainants leave, he was a new start.

The Complainant had stated that he was not available past March 13 -April 12. He was not offered an opportunity to work past March 13, 2023.

During cross examination,

The Complainant challenged Mr Kelly that Mr B had not been mentioned as a potential employee prior to February 25, 2023, and asked him if the company was intending that he was to be locum for his absence?

Mr Kelly denied this, saying “No he was being hired to replace you “He had completed weeks work previously and had offered to return, if needed

Mr Holland put to Mr Kelly that it was a standard practice that the company covered leave and cited a practice recalled in a separate circumstance. Mr Kelly distinguished this circumstance as “career progression “

He responded that the Complainant had not been available to work his notice period.

Evidence of Ms Edel Bailey, Human Resource, Dublin.

Ms Bailey told the hearing that the contract of employment was the second contract issued during the employment, following an update in shift changes.

She confirmed receipt of email of the resignation submitted by the complainant, and he was paid wages to 31 March 2023.

Ms Kelly confirmed that she recalled that the complainant had raised the topic of being paid for his notice period. But he was not available. He was paid a months’ notice from February 28, 2023.

During cross examination,

Ms Bailey confirmed that the Company had responded to Mr Kellys notification of the complainant’s intended departure on February 28, 2023.

She accepted that no record of a resignation form existed, and the complainant had worked from 3-16 March 2023.

In conclusion, the Respondent representative submitted that the engagement between Mr Kelly and the Complainant on February 28, 2023, was the process that concluded in the termination of employment at March end.

Ms Wakely submitted that the complainant had contradicted his own evidence when he spoke about offering to repay the locum which was subsequently deferred by Mr Kelly.

The Respondent was not obliged to pay the complainant 4 weeks’ pay in lieu of notice. This was not properly payable as the Company was permitted to waive the right to notice.

I have been requested to reach a decision in this case on whether the amount claimed in respect of the period of notice referred to in the March 24, 2023, email to the Company can constitute unpaid wages for the purposes of the Payment of Wages Act, 1991?  From where my jurisdiction arises in this case.

In reaching my decision, I have listened carefully to both party’s evidence at hearing, and I have considered both written submissions and case law arising.

This is the story of how two parties, employee and employer interpreted the ending of a successful employment relationship which had endured without incident for almost 18 months. The story is also the story of busy participants, where the Respondent worked to their business imperative to have comprehensive and available cover for their Tugboat. It is also the story of the complainant’s success in career advancement cast alongside   a personal event in his life. As the parties can surely reflect, a busy time for all.

The period of time that takes my immediate attention is from February 25, 2023, onwards. It is fair to reflect that I have learned from the Parties that there were no ceremonies which signalled the end of the complainant’s employment. He did not have” a leaving does “and for him, at least, there was nothing to mark the conclusion of employment save for 2 pay slips. This may go some way to understanding the ambiguities which followed.

The Complainant comes to this case on the understanding that he had approved leave during April 2023 and was entitled to three weeks pay in lieu of notice. He submitted that he had been unfairly treated in that regard. He sought this sum as properly payable wages.

The Respondent came to the case on the understanding that the complainant had left the employment on 14 March 2023, and they paid him, without obligation for the floating days of 14, 15 and 16 March, which Mr Kelly covered.

The Respondent argued that his role was taken up by Mr B from March 31, which also doubled as the date that the complainant had been rostered for the return to his “2 weeks on work pattern”.

I would like the parties to reflect on this as it falls far short of what I consider to be best practice in the management of cessation of employment. Given the apparent robustness of the contract of employment, I would have expected more robustness in documentation at the final fence. I have addressed my concerns on this directly with the parties at hearing.

The Complainant delayed in  accepting  my invitation to produce records on when his employment ceased on Revenue records or just when he accepted the new position. The response was received at the end of March 2024 and did not provide any clarity on my request for this detail .

I had asked those question in the course of my inquiry to try to understand if I had any external validation or proof of cessation open to me?

The claim before me arises from an alleged nonpayment of notice, claimed   as properly payable wages under the Payment of Wages Act, 1991

Notice is addressed in the Minimum Notice and Terms of Employment, Act, 1973.

Section3(1)(f) of this Act provides that the act has no application in

 employment under an employment agreement pursuant to Part II or Part IV of the Merchant Shipping Act, 1894.

SI 374/2014, Regulation 9.

Neither party relied on this exclusionary provision in the Act.

Section 6 sets out the Employers right to receive a minimum of one weeks’ notice in the scenario of a voluntary resignation.

Right of employer to notice.

6.—An employer shall, subject to the right of an employee to give counter-notice under section 10 of the Act of 1967 or to give notice of intention to claim redundancy payment in respect of lay-off or short-time under section 12 of that Act, be entitled to not less than one week’s notice from an employee who has been in his continuous employment for thirteen weeks or more of that employee’s intention to terminate his contract of employment.

Right to waive notice.

7.— (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.

The contract of employment live in February 2023

Rights of employee during period of notice.

5.—(1) The provisions of the Second Schedule to this Act shall have effect in relation to the liability of an employer during the period of notice required by this Act to be given—

(a) by an employer to terminate the contract of employment of an employee who has been in his continuous service for thirteen weeks or more, and

(b) by an employee who has been in such continuous service to terminate his contract of employment with that employer.

(2) This section shall not apply in any case where an employee gives notice to terminate his contract of employment in response to a notice of lay-off or short-time given by his employer.

(3) Any provision in a contract which purports to exclude or limit the obligation imposed on an employer by this section shall be void.

Wages are defined in Section 1 of the Payment of Wages Act, 1991 as,

"wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

The question of whether a claim for an entitlement under the Minimum Notice and Terms of Employment Act, 1973 claimed on appeal through the Payment of Wages Act, 1991 at the Labour Court in Starrus Eco Holdings ltd v Madichie PWD 36/2022, PWD 36/2022, is instructive:

This was a case which claimed unpaid notice on termination of employment through the Payment of Wages Act, 1991

The Court concludes that in order to determine the appeal before it under the Act of 1991 it would first have to exercise a jurisdiction under the Act of 1973 in order to determine the wages properly payable to the Complainant on the occasion. No appeal under the Act of 1973 lies before the Court and consequently the Court lacks jurisdiction to decide upon an alleged breach of that Act.

In the circumstance where the basis for the within appeal under the Act of 1991 is that the Appellant is in breach of its obligations under the Act of 1973, the within appeal must fail.

The Court cautioned against raising such a claim under the Payment of Wages Act, 1991.

In the instant case, the Complainant has claimed the provisions of the contractual clause at Section 15

Termination with Notice.

1 termination at any time by either party by giving notice in writing of four weeks unless the statutory obligation on notice was greater.

2 Where notice of termination is given by either party.

A period of garden leave may follow (not relevant here)

Or

“The Company will have the right to pay you in lieu of notice the amount of your entitlement to salary in respect of such notice period “

Section 5(1) of the Payment of Wages Act, 1991 provides.

Regulation of certain deductions made, and payments received by employers.

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

Section 5(2) of the Act addresses an omission by an employee.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee,

Unless

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage

I must decide whether the complainant is entitled to rely on the contractual clause in this instance.

By February 2023, the Complainant had 15-month service. He accepts that he informed his supervisor that he intended to leave the employment but that he had not concluded the formalities of voluntary cessation and argued that he could not be bound by an oral declaration.

The Respondent, in the interests of safe succession in Operations ran with the oral declaration to leave and moved quickly to appoint a successor. They had no requirement that the complainant should work notice and should not be bound by it.

Yet, it is clear in the contract that notice must be issued in writing.

That occurred on 24 March 2023 and was left unanswered by the Company until May 2023.

By then, the parties both accept that the complainant had left the business and was not rostered or expected to return.

The Respondent reliance on Dunnes Stores is not on point as this case involved a unilateral pay increase in long service increment.

In the Labour Court case of Avram, the Court considered the parameters of Section 7 (1) of the Act and accepted that Section 7(1) of the Minimum Notice and Terms of Employment Act , 1973 permitted the respondent to waive his right to notice from 11 November , 2018 ( submitted ) to 8 October , 2018 and this  a claim for 3 weeks payment in lieu of notice could not succeed as the complainant was not required to work the notice period and “ there was no payment properly payable .”under the Payment of Wages Act , 1991

In UDD 2019, Action Health Enterprises ltd and Michael Darcy, the Labour Court grappled with a jurisdictional issue on whether 12 months service existed to ground the claim?

In once more considering Section 7(1) of the Minimum Notice and Terms of Employment Act, 1973, the Court acknowledged that where an employee waives an entitlement to notice or accepts payment in lieu of notice their right to notice under Section 4 (by employer) is extinguished.

The Court went on to state that.

“In order for the complainant to accept payment in lieu, there must have been an offer and a free acceptance of that offer “

I could not establish any record of payment received by the Complainant in lieu of notice in the instant case.

I can accept that the email of March 24, 2023, complied with the contractual term on notice. During that time, the complainant was on rostered weeks off and out of the jurisdiction.

That notice ought to have triggered a real time response from the recipients.

Therefore, I must conclude that the Complainant was entitled to rely on the provisions of Section 15.1 (notice in writing)

I find that the Respondent was mistaken in interpreting the conversations around 25-28 February 2023 as amounting to compliance with Section 15.1 of the contract.

I wish to balance this by acknowledging this was a simple mistake fuelled by the imperative to make a safe succession plan and was without animus.

And 4 weeks pay was properly payable according to the contract, Balans applied.

I must now look at whether the nonpayment of this sum constituted an illegal deduction of wages?

I have considered Dunnes Stores and Long and find it distinguished from the facts of this case due to illness of the complainant.

The facts of this case embrace an ambitious succession plan and new a career start, rather than a static illness.

I find that I must follow the Labour Court in D’Arcy and find that for the Respondent to safely rely on Section 7(1) of the Minimum Notice Act, they must have addressed the payment in lieu of notice prior to the cessation of the contract on March 31, 2023. They did not do this.

My attention was drawn by the Respondent to the Labour Court case of Intec Billing Ireland and Angela Lally PWD 1639 from 2016

This was a case where pay was claimed for notice served on an employee by an employer whilst on sick leave but not paid.

The Court considered the parameters of the Second Schedule of the Minimum Notice and Terms of Employment Act, 1973

SECOND SCHEDULE

Rights of Employee During Period of Notice.

Section 5

1. Subject to the provisions of this Schedule, an employee shall, during the period of notice, be paid by his employer in accordance with the terms of his contract of employment and shall have the same rights to sick pay or holidays with pay as he would have if notice of termination of his contract of employment had not been given.

Employments for which there are normal working hours.

2.(a) (i) An employee shall be paid by his employer in respect of any time during his normal working hours when he is ready and willing to work but no work is provided for him by his employer.

(ii) In this subparagraph “normal working hours” in the case of an employee who is normally expected to work overtime, include the hours during which such overtime is usually worked.

(b) In any case where an employee’s pay is not wholly calculated by reference to time, the pay which his employer is bound to pay him under subparagraph (a) shall be calculated by reference to the average rate of pay earned by the employee in respect of any time worked during the thirteen weeks next preceding the giving of notice.

I must conclude that both parties in this case accept that the Complainant was not ready and willing to work his notice period which places the protections provided in schedule 2 outside of his reach. The Complainant was on pre booked holidays when he served his notice on 24 March 2023. He did not take steps at that time to engage on what the notice period would look like in his case. On balance, neither was he asked.

 Once more, I say that it was regrettable that this was not discussed in real time or channelled through the company grievance procedure. The mutual delay in addressing this matter did not assist either party in resolving this issue.

However, my attention is now drawn to the Labour Courts preference for addressing claims relating to minimum notice under that specific legislation rather than the Payment of Wages Act 1991.Starrus Eco Holdings ltd v Madichie PWD 36/2022,

The Minimum Notice and Terms of Employment Act, 1973 historically contained section 12.

Section 12, as originally enacted, provided that, if an employer failed to comply with the provisions of s.5, the employee might refer the matter to the Employment Appeals Tribunal for arbitration and the Tribunal might award “compensation for any loss sustained” by the employee by reason of his employer's default. 

Foley v Irish Leathers ltd M 1024/1984 applies, Westlaw.

Intec Billing was decided prior to the commencement of changes in Section 12 of the 1973 Act on employer’s default informing compensation for loss.

This case is a case submitted under the Payment of Wages Act 1991, alone. Schedule 2 of the Minimum Notice and Terms of Employment Act, 1973 carries the protections for an employee who serves notice of cessation. This is the point I understand the Chairman reflects in Starrus.

I have already found that the 4 weeks’ notice pay outlined in the contract is properly payable to the complainant.

I must now find that the Respondent failed to observe the written notice and mistook the oral declarations of 25-28 February,2023 as the commencement of the notice period. They did not have the complainant’s permission for this and cannot rely on a waiver of the contractual notice period.

I accept that it was a busy time for both parties, who both had separate and distinct imperatives at that point.

The Respondent did not pay the Complainant for his notice period.

However, the claim for payment is defeated by section 5(1) (a) of the Payment of Wages Act, 1991 and the operation of law in Section 2(A) (i) of Schedule 2 of the Minimum Notice and Terms of Employment Act, 1973, as amended when the complainant was not ready and willing to serve his notice.

To avail of the Protections of this Statute, he was required to place his service before his employer within the requisite period or agree to a waiver.

Payment of Wages Act, 1991

Regulation of certain deductions made, and payments received by employers.

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

Minimum Notice and Terms of Employment Act, 1973, as amended.

2.(a) (i) An employee shall be paid by his employer in respect of any time during his normal working hours when he is ready and willing to work but no work is provided for him by his employer.

The Complainant accepts that he was not available to comply with ready and willing to work his notice.

 I find that the Complainant was entitled to be paid his notice period of 4 weeks, as the Respondent had not received his agreement to waiver that notice in pay.

I must, however, find that his claim is subject to the operation of law in Schedule 2 of the Minimum Notice and Terms of Employment Act, 1973. The law that covers this instance of an employee giving notice.

The complainant was not ready and willing to work his notice following submission of the March 24, 2023, email to the Respondent.

The Respondent can rely on the operation of Section 5 (1) (a) of the Payment of Wages Act, 1991 in defence of the claim.

 The claim is not well founded.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to this complaint in accordance with Section 5 of that Act.

I have found the complaint is not well founded.

Pay in Lieu of notice on cessation of employment