|
FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : THE ALTERATION CENTRE
(REPRESENTED BY PENINSULA) - AND - MS RENATA URYN DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer's Decision No ADJ-00009113
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 7(1) of the Payment of Wages Act, 1991. A Labour Court hearing took place on 10th October, 2019. The following is the Determination of the Court:-
DETERMINATION :
This is an appeal by The Alteration Centre against the decision of an Adjudication Officer ADJ-00009113, CA-00011980-003 dated 19th February 2019 under the Payment of Wages Act 1991 (the Act) in a claim by Ms Renata Uryn against her former employer for pay in lieu of notice on the termination of her employment. The Adjudication Officer held that in her favour and awarded her four week’s pay.
For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Renata Uryn will be referred to as “the Complainant” and The Alteration Centre will be referred to as “the Respondent”.
The Complainant submitted her claim under the Acts to the Workplace Relations Commission on 19th June 2017.
The Claim
The Complainant was employed as a Seamstress with the Respondent from 24th August 2011. She commenced sick leave on 10th August 2016. By letter dated 3rd April 2017 the Complainant was dismissed from her employment and was given four weeks’ notice. In the letter, the Respondent stated that she was being dismissed due to its’ belief that there was no prospect of her returning to work within the foreseeable future. As the Complainant was on certified leave and not available for work, the Respondent did not pay her for the period of her notice, the Complainant made a complaint under the Act that she should have been paid in lieu of the notice period.
Conclusions of the Court
In effect the Complainant is contending that the Respondent’s failure to pay her in lieu of notice constitutes an unlawful deduction from her contractual wage within the meaning of Section 5 of the Act.
It is not disputed that the Complainant was given four weeks’ notice on the termination of her employment, such notice was given on 3rd April 2017. However, she was not paid during this period.
It is also not in dispute that the Complainant was not fit to work during this period.
The Second Schedule of the Minimum Notice and Terms of Employment Act 1973 provides that where an employee is absent due to illness during the notice period, although entitled to notice, as the employee is not able to work, he/she has no entitlement to pay:-
- Paragraph 4
An employer shall not be liable to pay to his employee any sum under paragraph 3 of this schedule unless the employee is ready and willing to do work of a reasonable nature and amount to earn remuneration at the rate mentioned in the said paragraph 3.
The Court is satisfied that the Respondent was not in default under the Act as the Complainant was not ready and willing to work during the period of her notice. Therefore, there was no obligation on the Respondent to pay her during this period.
Consequently, the Court does not accept that there was an unlawful deduction from the Complainant’s wages.
Determination
The Court upholds the Respondent’s appeal and the Adjudication Officer’s Decision is overturned.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
8th November 2019 ______________________
CC Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.