FULL RECOMMENDATION
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005 PARTIES : J & D O'BRIEN (REPRESENTED BY PENINSULA IRELAND) - AND - RAYMOND MORRIN (REPRESENTED BY PADRAIG O'DONOVAN & CO) DIVISION : Chairman: Mr Foley Employer Member: Mr Marie Worker Member: Mr McCarthy |
1. Appeal Of Adjudication Officer Decision No ADJ-00015407 CA-00019680.
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 17th of January 2019. A Labour Court hearing took place on the 13th of March 2019. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by J and D O’Brien (the Appellant) against the Decision of an Adjudication Officer under the Minimum Notice and Terms of Employment Act 1973 (the Act) in a complaint by Raymond Morrin (the complainant) claimed that he did not receive his proper notice on the termination of his employment by his former employer, the Appellant. The Adjudication Officer held that the Complaint was well-founded. The complaint under the Act was referred to the Workplace Relations Commission on 8thJune 2018.
Background
The Complainant was employed by the Appellant for 18 years until the termination of his employment on 3rdJanuary 2018. His rate of pay at the date of his dismissal was €600.00 per week.
In a decision dated 6thDecember 2018 given under the Unfair Dismissals Act, 1977 (the Act of 1977) an Adjudication Officer decided that the dismissal of the Complainant by the Appellant was unfair. That decision of the Adjudication Officer was not appealed by either party to the within appeal.
Relevant Law
The Act at Section 8 provides as follows:
- 8.— Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.
The Appellant submitted that an Adjudication Officer, in a complaint made under the Act of 1977, had decided that certain of theComplainant’s acts constituted gross misconduct and as such the legislation does not allow for an award of notice. The Appellant submitted that in accordance with Section 8 of the Act the Appellant had the right to terminate the contract of employment without notice.
The Appellant put forwardLennon v Bredin [M160/1978]as authority which addressed the issue of the type of conduct that would save an employer from liability for minimum notice.
Summary of the Complainant’s position
The Complainant submitted that it would be an absurd interpretation of the Act to allow the appeal of the Appellant and would lead to absurd result unintended by the legislature. The Complainant submitted that, in effect, the Appellant seeks that it should, despite its unlawful conduct and a finding that the dismissal of the Complainant was unfair, be able to bypass the provisions of the Act in denying the Complainant his statutory notice. The Complainant submitted the Interpretation Act, 2005 at Section 5(1) in support of this contention that such a proposition cannot stand. Section 5(1) of the Act of 2005 states as follows:
- 5.— (1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)—
- (a) that is obscure or ambiguous, or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of—
- (i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2 (1) relates, the Oireachtas, or
(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,
- (i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2 (1) relates, the Oireachtas, or
- (a) that is obscure or ambiguous, or
The Complainant submitted that the Appellant had paid notice of one weeks’ pay to the Complainant at the date of dismissal and could not now contend that no notice is payable.
Discussion and conclusions
It is common case that the Complainant was, within the meaning of the Act of 1977, unfairly dismissed. This conclusion is drawn on the basis that a complaint of unfair dismissal made under that act was upheld and that decision was not appealed.
The Court finds that a decision to dismiss the Complainant which was itself unfair within the meaning of the Act of 1977 cannot form the basis for a failure, founded on Section 8 of the Act, to provide statutory notice in accordance with the Act.
It is the case that the Adjudication Officer did, in the course of exercising his statutory function under the Act of 1977, find that the Complainant was guilty of gross misconduct. This finding did not constitute the decision of the Adjudication officer but was a finding made by the Adjudication Officer in the course of arriving at the decision he had jurisdiction to make. The Unfair Dismissals Act,1977 at Section 8(c) gives an Adjudication Officer jurisdiction to decide as follows:
- 8(c) An adjudication officer to whom a claim for redress is referred under this section shall —
- (i) inquire into the claim,
(ii) give the parties to the claim an opportunity to be heard by the adjudication officer and to present to the adjudication officer any evidence relevant to the claim,
(iii) make a decision in relation to the claim consisting of an award of redress in accordance with section 7 or the dismissal of the claim, and
(iv) give the parties to the claim a copy of that decision in writing.
- (i) inquire into the claim,
The Court in the within matter must consider the matterde-novoand must reach its own conclusions on the matters relevant to the within appeal.
The Appellant submitted extracts from the letter of dismissal dated 3rdJanuary 2018 provided to the Complainant. Those extracts referred to an incident which occurred in August 2015 and also to the findings of an independent investigator that the Complainant should be dismissed as the basis for the Appellant’s decision to dismiss. The findings of that investigator as submitted to the Court were that
- (a)‘…your company would be better off without Ray being in your employment as it appears that he is disruptive in the workplace, causing discontent among other employees’and
(b)’As both parties claim they were struck by each other, and as we have no independent witness we believe that you have no option but to dismiss both the employees’
Determination
For the reasons outlined above the decision of the Adjudication Officer is affirmed.
The Appellant is directed to pay the Complainant the sum of €4,200 in respect of his statutory entitlement to notice under the Act.
Signed on behalf of the Labour Court
Kevin Foley
CH______________________
1st April 2019Chairman
NOTE
Enquiries concerning this Determination should be addressed to Carol Hennessy, Court Secretary.