MND245

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00043599 (CA-00053942-002).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 4 October 2023 in accordance with Section 44 of the Workplace Relations Act, 2015. A Labour Court hearing took place on 2 May 2024.

The following is the Decision of the Court:

DECISION:

The matter before the Court is an appeal by David Hasala against a decision of an Adjudication Officer (Adj-00043599, CA-00053942-002) in a complaint made against his former employer Mounthawks Inns Limited O’Donnell’s Bar and Restaurant under the Minimum Notice and Terms o Employment Act, 1973 (the Act).

The Adjudication Officer held that the complaint failed as there was no appearance by either party at the Workplace Relations Commission hearing.

A Notice of Appeal was received by the Court on 4 October 2023 and a hearing of the Labour Court was held in Cork on 02 May 2024.   This case is linked to .RPA246 and TED2410.

The parties are referred to in this Determination as they were at first instance. Hence, Mr Hasala is referred to as “the Complainant” and Mounthawks Inns Limited O’Donnell’s Bar and Restaurant is referred to as “the Respondent”.

Position of the Respondent

There was no submission or appearance by, or on behalf of, the Respondent at the hearing.

Rule 21 of the Labour Court Rules 2024 provides that:

“Where the Respondent does not turn up for the hearing and, no satisfactory explanation is given to the Court for the failure of the Respondent to appear, the Court may proceed to hear the appeal”.

The Court was satisfied that the Respondent in this case was on notice of the appeal.

By letter dated 22 March 2024 the Respondent was notified of the date, time, and location of the appeal hearing. As is the usual practice of the Court, the Court Secretary contacted the parties in advance of the hearing date to request their submissions and to confirm their attendance at the hearing. No reply was received to any emails sent to the Respondent. On 24 April 2024 the Court Secretary rang the Respondent’s phone number at 12.02pm and left a message. At 14.55pm, the Court Secretary received a call from Respondent’s number, but the caller hung up when the Secretary answered the call by stating that she was from the Labour Court.  No response was received to subsequent calls and emails from the Court Secretary to the Respondent in advance of the hearing on 2 May 2024.

As no satisfactory explanation was given to the Court to explain the Respondent’s failure to appear at the hearing, the Court decided to proceed to hear the appeal.

Position of the Complainant

The Complainant submits that he did not receive his minimum notice entitlement when the restaurant in which he worked as a head chef closed and his employment was terminated by reason of redundancy.

The Complainant commenced employment on 13 June 2019 as a Chef de Partie and subsequently became Head Chef. He worked 40 hours per week over 5 days, from Wednesday to Sunday. His rate of pay was €751 per week gross.

The Complainant did not receive a statement of terms and conditions of employment on commencing employment and was told that he one would be provided to him at a later point. No statement of terms and conditions of employment was ever issued to him.

The Complainant was laid off from his employment in March 2020 due to the COVID pandemic.  He returned to work from that period of lay-off on 29 July 2020. 

On Monday 10 October 2022, the Complainant received a phone call from the Respondent to advise him that the restaurant was closing, and that he would receive two weeks’ notice. He asked about a redundancy payment and was told that he would receive any payments owed.

His last working day was Sunday, 9 October 2022.  On 19 October 2022, he received his wages into his bank account but did not receive any notice payment, or statutory redundancy payment. The Complainant tried to contact his employer, but the Respondent would not take his calls or reply to his emails.

The Law

Section 4 of the Minimum Notice and Terms of Employment Acts 1973-2015 states:

(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

Deliberations

The Complainant’s testimony was not disputed, as the Respondent did not attend the hearing. The Complainant came across as a credible and honest witness, and in the absence of any evidence from the Respondent, the Court accepts the uncontested sworn evidence of the Complainant.

The termination of Complainant’s employment was the subject of a claim under the Redundancy Payments Acts 1967, and the subject of an appeal to this Court. The Complainant’s appeal under the Redundancy Payments Acts 1967 RPD246 was heard in conjunction with the within appeal.

In that case, the Court determined that the Complainant’s employment was terminated by reason of redundancy on 17 October 2022.  It follows therefore, that the Complainant has an entitlement to statutory notice under the 1973 Act.

The Complainant had in excess of 2 years’ continuous service with the Respondent and, therefore, accrued an entitlement to two weeks’ notice pursuant to section 4 of the Act.

Determination

The complaint is well founded, and the decision of the Adjudication Officer is set aside.

The Respondent is directed to pay the Complainant the sum of €1,501.42 in respect of his statutory entitlement to notice under the Act. 

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
13 May 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.