Complainant

Respondent

Anonymised Parties

A Cook

A Catering Company

Representatives

Marius Marosan

 Peninsula Business Services

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-00022898-001

26/10/2018

The complainant had been employed by the respondent from May 7th, 2018 up to October 10th, 2018, at which point she resigned.

She was paid €10.50 per hour.

On October 1st, 2018, the complainant gave notice of her intention to leave her employment. She specified the termination date as being November 11th. She was leaving to return to her home country and had booked her flight for November 11th.

However, her employment was terminated a week later, and she was not paid for the period for which she was given notice.

That period is now the subject of her complaint.

The respondent says that it at no stage agreed to the termination date proposed by the complainant. As soon as she submitted her notice it became necessary to find a replacement for the complainant.

The notice was received on October 1st.

On October 2nd the respondent replied by text message confirming that the termination date would be October 10th and that all outstanding payments would be made to her by October 17th.

In fact, the complainant worked until October 17th; ten days after she served her notice, which is longer than the statutory period as outlined to her in that text message.

She was paid fully for all work done and therefore no outstanding wages are due to the complainant.

It is, of course open to an employer and an employee to agree whatever notice period they wish, either at the point of agreeing the contract, or when notice is given.

It is easy to imagine many situations where it might suit both parties to have a longer notice period.

However, the critical factor in that situation would be the consent of the parties, and where an employer clearly agreed to a longer notice period and then unilaterally had a change of mind that might give rise to a claim for payment.

That is not what happened in this case.

The respondent made it clear from a very early stage following receipt of the notice that the employment would end on the termination of the statutory notice period. In fact, it was slightly longer.

The notice itself was somewhat ambiguously written and described as a ‘request’, although it would be harsh to infer too much from this as the complainant’s first language is not English.

It appears the complainant (who did not attend the hearing, but no objection was raised by the respondent to proceeding) had booked flights to return to her home country. She thought she was doing the respondent a favour by giving him a longer period of notice.

Nonetheless, it would have been prudent for her to establish whether such an extended period of notice would be acceptable, (or simply delay submitting it until she was due to depart; she was only obliged to give one week’s notice).

It is unfortunate that her good will gesture cost her the opportunity to continue working up to the point of her departure, but it does not give rise to a successful complaint under the payment of Wages Act, 1991.

For the reasons set out above complaint CA-00022898-001 is not upheld.

Payment of Wages