MND249

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00034982 (CA-00045756-004)

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 14 September 2022 in accordance with Section 44 of the Workplace Relations Act, 2015. Labour Court hearings took place on 23 June 2023 and 20 June 2024.

The following is the Decision of the Court.

DECISION:

This is an appeal by Ringsend Community Services Forum CLG of a decision of an Adjudicator Officer dated 12 August 2022 under the Minimum Notice & Terms of Employment Acts, 1973 to 2005 (the Acts) in a claim made by Sueann Moore against her former employer. The Adjudication Officer found that the complainant was well founded.

For ease of reference the parties are given the same designation as they had at first instance.  Hence Sueann Moore is referred to as “the Complainant” and Ringsend Community Services Forum CLG is referred to as “the Respondent”.

The Respondent did not attend the hearing at first instance.  A Labour Court hearing of this appeal was held on the same day as a hearing of three linked appeals by the Respondent (UDD2432, TED2416 and PWD2450).  In its Determination UDD2432 under the Unfair Dismissals Acts, the Court found that the dismissal of the Complainant was unfair.

Position of the Respondent 

The Respondent submits that the Complainant had no entitlement to notice of termination of her employment in circumstances where she terminated her own employment on 31 May 2021.

The employee has no entitlement to notice in circumstances where she refused to work. Notwithstanding that fact, no entitlement under the Acts arises in circumstances where the Respondent paid the Complainant a notice payment of €1,218.71 as a good will gesture.

Position of the Complainant

The Complainant was dismissed in a letter dated 31 May 2021 contrary to the provision of the Act. She was dismissed without notice. She is entitled to six weeks’ notice as provided in her contract of employment.

Relevant Law

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 the First Schedule to this Act shall apply for the purposes of ascertaining the period of service of an employee and whether that service has been continuous.

(4) The Minister may by order vary the minimum period of notice specified in subsection (2) of this section.

(5) 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.

(6) The Minister may by order amend or revoke an order under this section including this subsection.

12. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.

Deliberations and Findings

This case is linked to UDD2432 where the Court determined that the decision to dismiss the Complainant from her employment on 31 May 2021 was unfair.

The Court heard that the Complainant was paid a notice payment in her final payslip, as a goodwill gesture. That matter was disputed. 

The final payslip issued to the Complainant was opened to the Court. It states that a payment of €2,053.50 gross (€1,218.71 nett) was made to her in Pay Period 22. A note at the bottom of the payslip states “3 weeks holiday pay @575 per week + 2 days holiday pay@164.28 per day = 2,053.50). The Respondent was unable to explain how the payment of €2053.50 gross (€1,218.21 nett), which it asserts was a notice payment, was recorded on the payslip as holiday pay. In those circumstances, the Court finds that the final payment made to the Complainant €2,053.50 gross (€1,218.71 nett) was in lieu of holidays, and that no payment in lieu of notice was made.

The information supplied to the Court was that the Complainant commenced employment with the Respondent on or around 3 February 2014 and that her employment ceased on 31 May 2021.

Counsel for the Complainant submits that the Complainant is entitled to six weeks’ notice as provided in her contract of employment, notwithstanding her statutory entitlement to four weeks’ pay under the Acts.  No authorities to support that contention were opened to the Court.

The Act at Section 4 (5) provides that any provision in a contract of employment which provides for a lessor period of notice than the period of notice specified in subsection (2), shall have effect as if that contract provided for a period of notice in accordance with this section.

The Act contains no provision to increase a person’s entitlement to statutory notice having regard to their contract of employment. Therefore, the Court finds that the Complainant is entitled in accordance with the Act to four weeks paid notice.

The Act provides that an employee is entitled to compensation for any loss sustained by reason of the contravention.

Counsel for the Respondent further contends that the employee has no entitlement to statutory notice in circumstances where she refused to work. This case is also linked to PWD2450 where the Court determined that the Respondent was not obliged to pay the Complainant her wages in circumstances where she had failed to attend her workplace as required by her contract of employment.

The Court finds that the Respondent cannot rely on the Complainant’s refusal to attend the workplace prior to the termination of her contract to negate her entitlement to statutory notice under the Act. Had the Respondent served notice to the Complainant, and had the Complainant refused to attend work after the serving of that notice, the Respondent would certainly have been entitled to assert that no entitlement to compensation arises in circumstances where she refused to work.

However, in this case, no notice of the termination was served to the Complainant. It is not possible to say with certainty that the Complaint would have continued to refuse to attend the workplace during the notice period, had it been served.

In such circumstances, the Court finds that the Complainant is entitled to compensation for the loss of her statutory notice.

Having regard to all the above, the Court finds that the Complainant has a statutory entitlement in accordance with the Act to four weeks paid notice.

The information supplied to the Court indicates that the Complainant was in receipt of a weekly salary of €575 gross and is therefore due €2,300 being four weeks’ notice pay.

Determination

The Complainant is well founded.

The Decision of the Adjudication Officer is varied accordingly.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
AR	______________________
7 August 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.