MND231

1. Appeal of Adjudication Officer Decision No(s) ADJ-00036294 CA-00047459-01.

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 5 September 2022 in in accordance with Section 44 of the Workplace Relations Act, 2015. A Labour Court hearing took place on 12 January 2023. The following is the Determination of the Court:




DETERMINATION:

This is an appeal by Graham Kealy (Complainant) against decision ADJ-00036294 of an Adjudication Officer in his complaint against his previous employer Blacklough Construction Limited (the Respondent). The complaint was made pursuant to the Minimum Notice and Terms of Employment Acts, 1973 (the Act). The Adjudication Officer held that the complaint was not well founded.

Background

The Complainant commenced employment with the Respondent as a licensed Tower Crane operator on the 14^th April 2021. The Complainant states that he was dismissed without notice on the 11^th October 2021 and is now seeking to be paid one weeks’ notice. The Complainant lodged his complaint with the WRC on the 02 December 2021. The cognisable period under the Act is 3rd June 2021 to 2^nd December 2021.

By email of the 3^rd January 2023 the Court received from the Respondent’s legal representatives an application for a postponement on the basis that their client was placed in examinership and they were unable to obtain instruction. By email of the 6^th January 2023 the Court refused the application for adjournment noting that the Respondent went into examinership on 29^th November 2022 and the notification of the time and date of hearing had issued on the 30^th November 2022. No explanation for the delay in seeking a postponement had been advanced. The Court advised that the hearing would proceed as scheduled and that any further postponement request could be made at the hearing if desired.

By email of the 11^th January 2023 the Court was advised that the Respondent’s legal representative had come off record, that the Company was in examinership, and that they would not be attending the hearing. The letter requested that the Court notify the Respondent of the outcome of the hearing or if an adjournment was granted. No request for adjournment was made at the hearing on the 12^th January 2023 so the Court proceeded to hear the case.

The Court, having earlier upheld in a separate Determination on appeal the Complainant’s claim of unfair dismissal by way of penalisation (HSC/22/14) must now consider the Complainant’s claim in respect of minimum notice.

The Law

Section 4 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
  
  

Determination

The Court determines that the complaint is well founded. The Court orders the Respondent to pay the Complainant one weeks wages (€1260 gross) in lieu of notice.

The decision of the Adjudication Officer is set aside

The Court so Determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
TH	______________________
16 January 2023	Deputy Chairman