EMPLOYMENT APPEALS TRIBUNAL
against the recommendation of the Rights Commissioner in the case of:
Viking Triangle Arts Limited
PAYMENT OF WAGES ACT 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. D. Donovan B.L.
Members: Mr. J. Browne
Ms. S. Kelly
heard this appeal at Waterford on 23rd June 2016
Appellant: Kenny Stephenson Chapman, Solicitors, Park House, Park Road, Waterford
Respondent: Nolan Farrell & Goff, Solicitors, Newtown Lodge, Newtown, Waterford City
The decision of the Tribunal was as follows:-
This matter came before the Tribunal by way of an appeal by the appellant employee in respect of a decision by the Rights Commissioner dated 25th May 2015 (reference: r-151487-14/JOC) pursuant to the Payment of Wages Act 1991 and wherein it was determined that because the appellant had declared himself to be redundant he was deemed to have voluntarily left his employment and accordingly was not entitled to notice or pay in lieu of.
On consent the name of the respondent was amended.
The appellant gave evidence that he commenced employment with the respondent on 2nd October 2009 and that his employment terminated on 25th July 2014. His gross weekly salary was €550 per week. He told the Tribunal that he was laid off following which on 10th June 2014 he notified the respondent in writing that unless the respondent could guarantee that the layoff would not last for more than four weeks he was considering himself redundant.
It was the appellant’s case that he was entitled to statutory and contractual notice or pay in lieu of. He had been paid €1,100 in lieu of the statutory notice period but had not been paid in lieu of the two months’ contractual notice period in accordance with clause 6 of his Contract of Employment which provided as follows:-
You are obliged to give and entitled to receive two month’s notice of the termination of your employment.
In either case, the Company is entitled to elect to pay your salary (at the rate then current) in lieu of requiring you to serve the period of such notice.”
The respondent wrote to the appellant on 25th July 2014 informing him that they would pay him the redundancy lump sum, pay in lieu for the statutory minimum notice period and any other monies due to him.
It was put to the claimant in cross-examination that it was normal practice to be laid off during the summer months, that he had been laid off during the summers of 2012 and 2013 and that he had not taken issue with it.
It was submitted by the respondent that because the appellant had voluntarily left his employment he was not entitled to notice or pay in lieu of and that the appellant could not rely on clause 6 of the contract as he had not given 2 months’ notice.
Having considered the evidence of the appellant and the submissions of the legal representatives for the respondent and the appellant the Tribunal finds as follows:-
That “wages” in section 1 of the Payment of Wages Act 1991 is defined, inter alia, as “any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice” and whereas it does not include “any payment referable to the employee's redundancy” in this instance the payment is referable to a notice payment and not to a redundancy payment.
That the appellant being laid off for four consecutive weeks was entitled, if he so wished, to claim redundancy subject to him serving a written notice stating that he so intends to claim because of lay-off. The appellant could have used RP9 for that purpose but all that is required is a written notice and the letter from the appellant to the respondent dated 10th June 2014 was written notice.
That the respondent could have, within seven days, given a counter notice to the appellant. The respondent did not serve a counter notice but rather by letter dated 25th July 2014 accepted the appellant's claim of redundancy.
That an employee who claims and receives a redundancy payment due to lay off is deemed to have voluntarily left his/her employment and therefore not entitled to notice or pay in lieu of under the Minimum Notice and Terms of Employment Acts 1973-2001. Accordingly, the appellant was not entitled to the sum of €1,100 paid in lieu of the statutory notice period.
That the appellant was entitled pursuant to clause 6 of his Contract of Employment to contractual notice of two months or pay in lieu of. However, as the appellant gave only 4 weeks' notice he is entitled to 4 weeks' pay in lieu of notice, being €2,200, less the amount of €1,100 already paid to the appellant.
Accordingly, the appeal under the Payment of Wages Act 1991 succeeds and the Tribunal sets aside the decision of the Rights Commissioner dated 25th May 2015 (reference: r-151487-14/JOC ) and awards the appellant the amount of €1,100 pay in lieu of contractual notice.
Sealed with the Seal of the
Employment Appeals Tribunal