ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026861
Warehouse General Manager
Transport and Logistics company.
John Keenan JRK Employee Advocacy & Business Support Services
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973
Date of Adjudication Hearing: 09/03/2020
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The complainant was employed by the respondent on 1st July 2018 as a General Manager. The respondent lost the contract on which the complainant was mainly engaged on or around the 31st July 2019. He continued working with the respondent. His employment was terminated on 21 January 2020. The employer failed to give him a week’s statutory notice.
His gross monthly salary was €5000.
He submitted his complaint to the WRC on 5/2/2020.
Summary of Complainant’s Case:
The complainant worked as the Warehouse General Manager with the respondent’s transport and logistics company. The respondent lost a big contract which was terminated by the health service provider on or around the 31st July for the provision of nationwide warehousing and transport /logistical solutions of domestic medical supplies to family homes. The respondent told him at the end July 2019 that he would be there as General Manager until January 2020 as there was residual work in the handover phase. He remained employed as General Manager until January 2020.
He reached a verbal agreement with his employer on the 18th December 2019, that his contract of employment with the respondent would be amended and extended into 2020 and would see him driving a commercial vehicle on behalf of the company and that this arrangement would commence at the beginning of January 2020 on new rates . He was assured that there was plenty of work for drivers with regard to other customers and business that the company retained.
The complainant states he met the Managing Director on 18 December 2019 as this was what he described at the hearing as his “finish date”. The Managing Director had always been good to him. The respondent MD told him to contact the Operations Manager as he would be driving a truck from 6 January. He was to return the company car in January. He got no response from the Operations Manager to his texts over the Christmas and early January period. He texted the Operation manager asking if he was needed on 6 January. He got no response nor to emails which he sent to the Managing Director on 8 January.
The respondent provided him with written notice on 21 January which was backdated until 2 January 2020. He had been paid up to 31 December.
The complainant submits that the respondent failed to provide him with statutory notice of one week. He submits that either notice should have been provided to him on 24 December 2019 if the respondent General Manager is correct in her assertion that his contract ended on 31 December. Or, he should have been provided with a week’s paid notice to take his salary up the 28 January given that he received written notice from the respondent on 21 January 2020.
Given the uncertainty in January 2020 concerning his ongoing employment as a driver, the complainant gave notice on 6 January of the termination of his contract to take effect on 23 January.
The respondent terminated his contract on the 23 January.
Due to the company not issuing him with a proper notice and reneging on the proposal formulated by the MD to retain him as a driver, he suffered financial hardship. The complainant did not sign on for unemployment assistance benefits because of the conversation which he had with the Managing Director which indicated on-going work as a truck driver .
Summary of Respondent’s Case:
The Complainant was employed by the Respondent, from July 1st, 2018 until his employment ended on December 31st, 2019.
He was employed in the role of Warehouse General Manager with almost exclusive responsibility for the warehousing and nationwide distribution of particular medical products for a health care provider charged with supporting patients with specific conditions.
Following a review of in November 2018, the respondent lost the contract with the healthcare service provider and the contract was awarded to another company. The complainant and the staff engaged with the healthcare service provider contract concerned, were advised and consulted with during June 2019.
The respondent terminated its involvement with the healthcare service provider as scheduled, on July 31st, 2019. However, as there were residual activities required by the respondent beyond the termination date of July 31st, as part of an orderly withdrawal and handover to the replacement distributor, Company 3, Company 2, a courier service, was contracted to relocate volumes of product from the respondent’s warehouse to the new provider’s warehouse.
Accordingly, the complainant, who had an intimate knowledge of the products and the related distribution requirements involved, was requested to, and agreed to, remain on the respondent’s warehouse and distribution site to assist in the operational activities concerned. The complainant remained effectively contracted to Company 2 until December 20th, 2019.
An arrangement was agreed between the respondent and Company 2 under which time worked by the complainant during the transition period, would be invoiced by the respondent to Company 2. The complainant continued at the site but was not required to work a full five-day week in each week concerned. When the complainant was not required at the site the complainant was not assigned to perform alternative duties though he continued to be paid his full salary by the respondent of €55,000 per annum during the 102 days concerned. He was also permitted to retain a company car and was provided with a Fuelcard. Indeed, of the 55 days that the complainant was contracted to Company 2, it is estimated that, apart from approximately 15 days, he operated a forklift truck without any involvement in management responsibilities. Though he only worked on 55 days of the 102 days he was paid for the remaining 47 days.
The Managing Director gave evidence.
The complainant was a very good worker. He had difficulty letting the complainant go. He subcontracted him to Company 2 at a manager’s rate. The contract with Company 2 was ending on 20 December. He told the complainant on the 18 December that he would pay him up to the 31 December. The complainant asked him if he could hold on to the company car until 23 January to which the MD agreed. The MD did state to the complainant that he would contact the Operations Director about ad- hoc days as a driver, The MD was on leave over Christmas until the 8 January. He was very surprised to receive the complainant’s email, dated the 6 January, on his return from leave on 8 January, stating the complainant was resigning on 23 January. He gave no guarantees to the complainant about ongoing employment. If he was to secure driving assignments it was on an ad-hoc, daily basis.
Chronology of Events
The respondent submitted emails sent by the complainant on October 13th which revealed that the he knew that the contract was nearing its end and suggested to the respondent in October that he should” cut him loose” as there was insufficient work in the warehouse.
The respondent MD subsequently met with the complainant in October and proposed and agreed, that regardless of the requirements of Company 2, the respondent would continue the complainant on full salary until the end of December 2019. This would provide him with an opportunity to explore the employment market without loss of income
On October 25th, 2019, Company 2 advised the respondent that they wished to retain the complainant’s service at the site “…from Tuesday 29th Oct to 29th November”. A further email from Company 2 dated November 26th, 2019, expressed the wish to continue the complainant’s service support until December 20th, 2019. The complainant received copies of these emails.
The complainant was not required by Company 2 after December 20th.
The MD met the complainant on the 18 December and agreed that he could continue to use the car and also that his full salary would be paid until December 31st, 2019.After the meeting in question, the respondent MD instructed the General Manager who was scheduled to process staff payments as per the established payroll timetable, to pay him until the 31 December 2019.
The General Manager also submitted online advice of the complainant’s termination date of the 31 December to the Revenue Commissioners, as per recent requirements in substitution of the former ‘P45’ process. This record clearly reflects her understanding that the complainant’s employment was terminated in that the date of submission to Revenue is December 18th, 2019 and contains the ‘Date of Leaving’ as December 31st, 2019.
Based on the specific notice of formal termination of employment given on December 18th, 2019, full salary payment to December 31st 2019, without any obligation to attend for or perform work, as well as the fact that the complainant’s salary as a Warehouse General Manager was fully maintained over 109 days since the cessation of the Healthcare provider’s contract in July 2019, with a work requirement of 55 days during this period, it came as a considerable surprise, when in an email to the respondent dated January 6th, 2020, the complainant purported to serve notice of his resignation from the Respondent’s employment, to expire on January 23rd, 2020.
The complainant indicated in an email of the 6 January his availability to undertake driving duties on a contract for service basis. In January 2020 emails ,he also qualifies the basis on which he hoped to work with the Respondent i.e. “to drive on behalf of the respondent if requested daily” or on an ad hoc basis with his new business, and he would “invoice accordingly”.
In his email dated January 20th, the complainant acknowledges that in a conversation with the respondent “before Christmas” it had been agreed that he would “remain on my salary as per my contract up to the 31st of December 2019” complaining that he had only received payment up to December 23rd, 2019. He also acknowledges, with thanks, a letter from the General Manager confirming the termination of his employment on December 31st, 2019. He raises no issue in respect of the date of termination, merely expressing his thanks because it would enable him to claim benefit.
It is a fact that the complainant was contracted to the courier service , Company 2 in order to assist in the handover arrangements necessitated by the change in the service provider, from the respondent to the new provider.
It is a fact that the handover period lasted from August 1st to December 20th, 2019.
The record shows that following a meeting on December 18th, 2019, two days prior to the formal cessation of the handover period, the Respondent agreed to retain the complainant on full salary until December 31st, 2019.
The complainant was on notice of the termination of his employment with the Respondent 6 months in advance of it being effected.
In summary, it is the respondent’s case that the Complaint’s made by the complainant under the Minimum Notice & Terms of Employment Act 1973 is without substance or foundation.
Findings and Conclusions:
Section 4 (2)(a) of the Act of 1973 as amended obliges the respondent to give the complainant one weeks’ notice of the date of termination of the contract of employment on the basis of his service.
The date upon which the complainant was served notice is contested.
The complainant asserts that he should have been provided with written notice on the 24 December in circumstances where the respondent may be correct in his assertion that the employment ended on 31 December.
The question of the necessity for written notice was addressed in the Supreme Court judgment in Bolands Ltd (In Receivership) v Ward, (1988) I.L.R.M. 382 at 389 Henchy J. stated that the form of notice is not provided for in the Act of 1973 and does not even require it to be in writing:
“… The Act is concerned only with the period referred to the notice, and it matters not what form the notice takes so long as it conveys to the employee that it is proposed that he will lose his employment at the end of a period which is expressed or necessarily implied in that notice. There is nothing in the Act to suggest that the notice should be stringently or technically construed as if it were analogous to a notice to quit. If the notice actually given—whether orally or in writing, in one document or in a number of documents—conveys to the employee that at the end of the period expressly or impliedly referred to in the notice or notices it is proposed to terminate his or her employment, the only question normally arising under the Act is whether the period of notice is less than the statutory minimum …”
In Bolands Ltd, the plaintiff company had gone into receivership in 1984. The employees received notice, but it was extended on a few occasions. Both the EAT and the High Court considered that the operative date was the final date and the final date of notice did not comply with the statute, but the original notice did. Henchy J. considered that all the employees knew that they were under notice and that they were benefiting from repeated extensions of the notice period and upheld the appeal that the notices satisfied the requirement of the Act as the original notice complied with the statute.
So also, in the instant case, the evidence shows that the complainant knew that he was under notice. His own oral evidence was when he met the Managing Director on 18 December 2019 this was what he described as his “finish date”. I find that the respondent Managing Director maintained him on salary until 31 December 2019. As the complainant’s own evidence was that Dec 18 was his finishing date and his salary was maintained until 31 December he was benefiting from an extension of the statutory one week notice period.
The matter is complicated by the fact that the respondent issued written notice on 20 January 2020 and backdated it to 2 January 2020. But as in Bolands, I find that the respondent complied with the statute in giving the complainant notice on the 18 December with the notice expiring on the 31 December and it is this original notice – as was the case in Bolands -which complied with the statute.
Given that he was paid up to the 31 December and that he did not work after the 18 December, the respondent satisfied the requirement set out in section 4 of the Act of 1973.
In relation to the complainant’s contention that the contract of employment was to continue into 2020 in an amended fashion with him taking on the role of driver, the complainant’s own emails disclose his understanding that any ongoing driving assignments would be unpredictable, ad hoc and called out on a daily basis.
The complainant benefited from the respondent’s generosity in paying him beyond the 1 week to which he was entitled. And he was not required to work.
His difficulties with claiming state benefits are not within my remit.
I do not find this complaint to be well founded.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I do not find this complaint to be well founded.
Dated: 7th July, 2020
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Contested date of notice.