Complainant

Respondent

Parties

Sorin  Pop

Palmer Shore Ltd

Representatives

Self-represented

Ms Emily Deering, Beauchamps LLP

Act

Complaint 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

CA-00072151-001

05/06/2025

The Complainant was employed by the Respondent from 10th March 2025 until his dismissal on 5th June 2025.  The Complainant contends that he did not receive the period of notice he was entitled to on termination of his employment.  It is the Respondent’s position that the Complainant does not have 13 weeks continuous service as required under s 4(1) of the Minimum Notice and Terms of Employment Act 1973, and that the Complainant received the contractual notice period due to him on the termination of his employment.

The Complainant outlined that he was let go during the probationary period.  His written contract of employment provided for 2 weeks’ notice during probation, however, he received one weeks’ notice only.  The Complainant submitted that had he got two weeks’ notice as per the terms of his written contract, this would have brought his service beyond the 13 weeks minimum service period required for the purposes of the Minimum Notice and Terms of Employment Act 1973.

The Complainant was asked by the Respondent’s solicitor if he was aware that two weeks’ notice pay of an amount of €1,423.06 was paid to him on 27th June 2025.  The Complainant responded: “I wasn’t paying attention.  I didn’t know that was two weeks’ pay.  I didn’t know what was paid or not paid.”

The Respondent’s solicitor submitted on behalf of the Respondent that the Complainant was given written notice of the termination of his employment on 30th May 2025.  He was advised his employment would come to an end on 5th June 2025.  On 27th June 2025 the Complainant received his final pay which included one additional week of pay in lieu of notice.  Therefore, the Complainant received his full contractual notice entitlement of two weeks.  The Complainant does not have 13 weeks continuous service as required under s 4(1) of the Minimum Notice and Terms of Employment Act 1973.

Relevant Law

Section 4 of the Minimum Notice and Terms of Employment Act 1973 (“the 1973 Act”) provides:

“(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 . . . . ”

The first Schedule of the 1973 Act sets out the computation of continuous service for the purposes of the 1973 Act and provides that service is continuous unless that service is terminated by the dismissal of the employee by his employer, or the employee voluntarily leaving his employment.

Section 1 of the 1973 Act defines a “week” as meaning any period of seven consecutive days.

Section 7 of the 1973 Act provides for the right to waive notice or accept payment in lieu of notice as follows:

“(1) Nothing in this Act shall operate to prevent an employee or an employer from waiving his right to notice on any occasion or from accepting payment in lieu of notice.

(2) In any case where an employee accepts payment in lieu of notice, the date of termination of that person’s employment shall, for the purposes of the Act of 1967, be deemed to be the date on which notice, if given, would have expired” (emphasis added). 

Section 1 of the 1973 Act provides that the Act of 1967 means the Redundancy Payments Act 1967.

In Fyffes Tropical Ireland Ltd v. Mr Loui Osman (UDD2413) the complainant’s representative argued that the complainant in that case had not freely accepted the payment in lieu of notice in circumstances where he was not advised by the Respondent to avail himself of the opportunity to take professional advice before foregoing his legal right to notice.  The Labour Court held:

“The Court, in this case, is of the view that the Complainant’s right was to notice or payment in lieu thereof and in circumstances where the Complainant - by virtue of having signed his written contract of employment, and thereby having agreed to the Respondent’s express reservation to itself of the right to pay the Complainant in lieu of notice – cannot be said to have foregone any right. For this reason, the Court finds the Complainant’s submission in this regard to be without merit.” 

Findings

It was common case: (i) that while the Complainant’s written contract of employment stated a commencement date of 17th March 2025, the Complainant had in fact commenced employment on 10th March 2025; (ii) the Complainant’s employment was subject to a three-month probationary period; (iii) a shorter period of notice was provided for in the written contract of employment with respect to notice of termination of employment during probation; (iv) the written contract of employment provided for payment in lieu of notice at clause 6.3; (v) the written contract of employment was signed by the Complainant; (vi) the Complainant was advised in writing on Friday 30th May 2025 that his employment was being terminated within the probationary period and would come to an end on Thursday 5th June 2025; and (vii) the Complainant was advised that he would be placed on garden leave for the duration of that one week notice period and that he would be paid as normal for that week.

Where an employer wishes to terminate the contract of employment of an employee, the employee is entitled to the longer of contractual notice or statutory minimum notice. The letter of notice of termination of employment issued to the Complainant on 30th May 2025 referred to clause 2.2 of the written contract of employment and a presumed provision therein to terminate employment during probation with one weeks’ notice.  At the hearing the Complainant sought payment for two weeks’ notice which he states is provided for at clause 2.2 of his written contract of employment.  It was acknowledged by the Respondent at the hearing that the Complainant’s written contract of employment dated 27th February 2025 had in fact provided for two weeks’ notice at clause 2.2.  The Respondent submitted that this was an error as clause 6 of the same written contract of employment, which is entitled “Notice Period”, had provided for one weeks’ notice from either party during the probationary period.  The Respondent subsequently paid a further weeks’ pay in lieu of the second week of contractual notice in the Complainant’s final salary payment on 27th June 2025, notwithstanding the purported error in the written contract of employment.  I note this payment was made after the Complainant referred his complaint to the WRC on 5th June 2025.  The fact of this payment was not communicated to the Complainant until the hearing into this complaint.  The Complainant confirmed to the Adjudication Officer at the hearing that he accepts his final pay included two weeks’ pay as follows: payment for the period 30th May to 5th June 2025 while he was on garden leave and a further weeks’ pay in lieu of the second week of contractual notice. 

My jurisdiction in this complaint is confined to the provisions of the 1973 Act.  Sections 4(1) and 4(2)(a) of the 1973 Act provide that an employee who has between thirteen weeks and two years’ service is entitled to one week of statutory notice.  According to the Respondent, the date the Complainant’s employment ended was 5th June 2025 and on that date the Complainant had less than thirteen weeks service (twelve weeks and three days) and therefore he is not entitled to statutory notice as provided for under the 1973 Act.  It is the Complainant’s case that had he been given two weeks’ contractual notice on 30th May 2025 as per clause 2.2 of his written contract of employment, instead of one week of notice given on this date, he would have had more than thirteen weeks service and accordingly he would also be entitled to one week of statutory notice as per the terms of s 4(2)(a) of the 1973 Act.

I find, for the reasons set out below, that the date of dismissal for the purposes of this complaint is 5th June 2025, as the Complainant was paid in lieu of the second week of contractual notice as permitted by the terms of the written contract of employment signed by him.  I am satisified there is no provision in the 1973 Act which requires me to treat the date of dismissal, for the purposes of the 1973 Act, as the date on which notice due, if given, would have expired.

The first Schedule of the 1973 Act sets out the computation of continuous service for the purposes of the 1973 Act and provides that service is continuous unless that service is terminated by the dismissal of the employee by his employer, or the employee voluntarily leaving his employment. Dismissal and/or date of dismissal is not defined under the 1973 Act.  Section 7 of 1973 Act provides that nothing in the Act can operate to prevent an employee from accepting payment in lieu of notice.  The 1973 Act also provides, but only in relation to the Redundancy Payments Acts 1976, that where an employee accepts payment in lieu of notice, the date of termination is the date the notice would have expired if it was given.  The Unfair Dismissals Act 1977 (as amended, “the 1977 Act”) at s 1 defines dismissal and the date of dismissal for the purposes of that Act.  In relation to ascertaining the date of the dismissal for the purposes of the 1977 Act, it is well established that if an employee accepts payment in lieu of notice, the date of dismissal will be the date on which termination takes effect, as the contract will have been determined in accordance with its terms (see Redmond on Dismissal Law, 3rd ed., [22.63]).  I am satisfied that there is no provision in the 1973 Act which prevents me from applying a similar approach with respect to this complaint.  The Respondent had reserved the right to pay the Complainant in lieu of notice of termination of employment at clause 6.3 of the written contract of employment.  The Complainant accepted at the hearing (although unknown to him at the time of the referral of this complaint to the WRC) that he was paid in lieu of the second week of his contractual notice period.  The fact that the Complainant was not aware he was paid in lieu of the second week of his contractual notice is in my view of no significance as his written contract of employment as signed by the Complainant provided for payment in lieu of notice (Fyffes Tropical Ireland Ltd v. Mr Loui Osman, UDD2413 applied albeit that case concerned the absence of legal advice with respect to pay in lieu of notice).

Considering all the foregoing, I am satisfied the date of dismissal for the purposes of this claim is 5th June 2025.  On that date the Complainant had less than thirteen weeks service.  Therefore, the Complainant is not entitled to one week of statutory notice as provided for at s 4(2)(a) of the 1973 Act.  Accordingly, I find the Respondent has not contravened the 1973 Act.  In any event, had the Complainant been entitled to statutory notice of one week as provided for under the 1973 Act, it would have run concurrently with the first week of the contractual notice given to the Complainant on 30th May 2025. 

I decide the Minimum Notice and Terms of Employment Act 1973 was not contravened.

Minimum notice. Contractual notice. Payment in lieu of notice.