UDD2632

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No.: ADJ-00037871 (CA-00049271-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 22 September 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 12 August 2026.

The following is the Decision of the Court.

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DECISION:

This is an appeal by George Mongey (‘the Complainant’) of a decision of an Adjudication Officer under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer held that his complaint of unfair dismissal against his former employer, Rehab Enterprises Limited (“the Respondent”), was not well founded.

1. Background

The Complainant was employed as a Quality Environmental Safety Officer with the Respondent. He contends that he was unfairly dismissed by reason of unfair selection for redundancy.

At the outset of the hearing, it became apparent that the parties were not in agreement about the date of dismissal. The Complainant’s position is his employment terminated on 24 September 2021. The Respondent’s position is that the employment relationship terminated on 30 July 2021.

As the Complainant lodged his complaint under the Act to the Workplace Relations Commission on 22 March 2022, the disparity in termination dates gives rise to a question about the Court’s jurisdiction to hear the complaint, having regard to the time limits at Section 41(6)) of the Workplace Relations Act, 2015, provides as follows:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Both parties were allowed to lodge supplementary submissions addressing the termination date and the issue of time limits in this case.

Rule 54 of the Labour Court Rules 2024 provides that: -

“The Court may, in its discretion, give a preliminary ruling on any aspect of the case where it is satisfied that time and expense may be saved by the giving of such a ruling and/or where it has the potential to be determinative of the case”.

The Court decided with the agreement of the parties that it would hear and decide the preliminary matters in the first instance. It advised the parties if it decided that the complaint was lodged to the WRC within time, a further hearing would be scheduled to consider the substantive appeal. If the Court decided that the complaint was lodged outside the time limits set down in the Act, the appeal would be out of time and statute barred.

1. Respondent Submission -Time Limits

The Complainant’s role was made redundant on 30 July 2021 as expressed by letter to him dated 21 July 2021. All monies owed were paid to him in full on 23 July 2021.

The Complainant was dismissed in line with Section 1(a) of the Unfair Dismissals Act, 1977:

“(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.”

The Complainant was entitled to 2 weeks’ notice in line with 1973 Act but was given 2 month’s payment in lieu of notice on 23 of July 2021 as per clause 16 of their contract of employment. The effective date of dismissal was 30 July 2021.

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The Complainant’s contract of employment provided for payment in lieu of notice. The payment made was discharged in line with the terms of his contract of employment. Clause 16 of the contract of employment allows, at the employer’s discretion, for payment in lieu of notice to be made: -

“Subject to the clauses entitled “Probation” and “Retirement Age” above, in the event of the termination of your employment by the Company you will be entitled to receive eight working weeks notice in writing. Likewise, where you resign from your employment, you will be required to give the Company eight working weeks notice in writing. The Company may at its discretion pay you your basic salary in lieu of any notice period provided in this contract. Nothing in this contract shall prevent the giving of a lesser period of notice by either party where it is mutually agreed. In the event of the termination of your employment by reason of gross misconduct on your part, you will not be entitled to receive notice in accordance with this clause.”

The operation of clause 16 of the contract of employment was done in line with Section 7(1) of the Minimum Notice and Terms of Employment Act, 1973.

“7.—(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.”

Payment in lieu of notice was received and accepted by the Complainant. The established legal position is that where an employer exercises contractual rights relating to a payment in lieu of notice and the employee accepts and does not contest the operation of that contractual clause; the notional date of dismissal will be that on which the payment in lieu of notice occurs.

The Complainant was dismissed with payment in lieu of notice on Friday, 30 July 2021, within the meaning of the Unfair Dismissals Act 1977, in line with operation of clause 16 of the contract of employment. All outstanding wages and leave including redundancy were processed through payroll on 23 July 2021.

The Complainant was advised throughout the redundancy procedure up to and past their dismissal by their Trade Union representative. The complaint was out of time when the Complainant lodged the complaint under the Act to the WRC on 22 March 2022. It was a total of one month and two weeks out of time. The statute time bar for making a complaint under the Act fell on 30 January 2022, 6 months after the Complainant’s dismissal by way of redundancy on 30 July 2021.  The Respondent relies on Fyffes Tropical Ireland Ltd v Loui Osman– UDD2413) Action Health Enterprises Ltd v Michael D’Arcy UDD2019). 

1. Complainant’s Case – Preliminary matter time limits

The Complainant’s letter of dismissal dated 21 July 2021 specified a termination date of 30 July 2021, i.e. 9 days after notice issued.

The Complainant was dismissed by reason of redundancy. Section 17(1) of the Redundancy Payments Act 1967 requires that a minimum of two weeks’ notice be given to an employee with not less than 104 weeks service with the employer. The relevant clause states:

“Notice of proposed dismissal for redundancy.

17. – (1) An employer who proposes to dismiss by reason of redundancy an employee who has not less than 104 weeks service with that employer shall not later than two weeks before the date of dismissal, give to the employee notice in writing of the proposed dismissal”.

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Section 51 of the 1967 Act renders any provision in an agreement void if it purports to exclude or limit any provision in the Act.

“Avoidance of purported exclusion of provisions of this Act.

51. - Any provision in an agreement (whether a contract of employment or not) shall be void in so far as it purports to exclude or limit the operation of any provision of this Act.”

Based on section 17(1) and section 51 of the 1967 Act, the contract cannot be relied on to give shorter notice than that required by the Act. The notice purportedly given to the Complainant on 21 July 2021 is void.

Furthermore, the Complainant was given a period of five working days to appeal the decision to dismiss him from his employment. All payments due were made on Friday 23 July 2021, before the expiry of this period. In the circumstances, the letter of the 21 July 2021 allowing for a five working day appeal, coupled with the processing of the Complainant’s monies on 23 July 2021, casts doubt as to the validity of the redundancy and the validity of the purported notice of 21 July 2021. The processing of all money on 23 July 2021 meant that the Complainant had no meaningful time to appeal and that, in any event, it appears that the outcome of this appeal was a foregone conclusion.

The dismissal is a “no notice dismissal” in accordance with section 1(b)(i) of the 1977 Act. The effective date of dismissal in line with Section 1(b)(i) of the 1977 Act and the Complainant’s contract of employment is 8 weeks from 30 July 2021. Therefore, the date of termination was 24 September 2021.

The complaint was lodged to the Workplace Relations Commission on 22 March 2022, bringing it within the scope of the 1977 Act. Accordingly, the Court has jurisdiction to hear this case.

1. Relevant Law

The “date of dismissal’ is defined in Section 1 of the Unfair Dismissals Act 1977 is as follows: -

“date of dismissal” means -

‘(a)        where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires,

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment [Acts 1973 to 2005].

The Minimum Notice and Terms of Employment Act 1973 sets down minimum periods of notice at Section 4 as follows:

• (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…”

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Section (7)the 1973 Act addresses the Right to Waive 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.

1. Deliberations

The initial question to be decided by the Court is whether the date of dismissal for the purpose of the 1977 Act is 30 July 2021, as contended by the Respondent, or 24 September 2021, as contended by the Complainant.

On the facts as presented, the Complainant attended a meeting on 21 July 2021, with his union representative, at which the Respondent confirmed that his position was redundant and that his last working day would be Friday 30 July 2021. By letter dated 21 July 2021, the Respondent advised the Complainant, inter alia, that

“…it is with regret that the Company is now writing to you to confirm that your position of Quality, Environmental & Safety Manager is redundant with effect from 30th July 2021.  Please accept this letter as formal notice of your redundancy. The necessary arrangements and formalities are set out below.

As discussed, the Company does not require you to work out your notice period and therefore your last day of employment will be 30th July 2021. You will be paid in lieu of your notice period, and you will be paid up to and including the termination date.

By reason of the termination of your employment, you are entitled to the following payments, which will be paid via normal monthly payroll on Friday, 23 July 2021.

• (a) …
• (b) …
• (c) Payment in lieu of your contractual notice entitlement, of 8 weeks gross pay.

…”

The Complainant’s final payments were processed in the July payroll run on Friday 23, July 2021. The Complainant’s last working day in the employment was Friday, 30 July 2021.

The Complainant’s representative contends that, having regard to section 17(1) and section 51 of the Redundancy Payments Act 1967, the Respondent cannot rely on the contract to give shorter notice than that required by the 1967 Act and, as a result, the notice purportedly given to the Complainant on 21 July 2021 is void. The Court finds this contention to be misconceived. The references to section 17(1) and section 51 of the 1967 Act, as well as section 7(2) of the 1973 Act, are relevant for complaints about statutory redundancy entitlements under that Redundancy Payments Act 1967. There is no reference in those sections to the Unfair Dismissals Act 1977. It follows that the Complainant cannot rely on section 17(1) and section 51 of the 1967 Act, or section 7(2) of the 1973 Act, to determine the date the employment relationship ended for the purposes of his complaint under the Unfair Dismissals Act 1977.

The Complainant’s representative further contends that as payments were processed via payroll on 23 July 2021 the Complainant had no meaningful time to appeal, casting doubt as to the validity of the purported notice of 21 July 2021. In the Court’s judgement, the fact that termination payments were made to the Complainant in advance of his lodging an appeal does not undermine the validity of the notification issued to him that his employment would terminate on 30 July 2021. The termination letter dated 21 July 2021 clearly stated: - “Please note, your date of dismissal remains as communicated unless the decision is overturned on appeal.”

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The Complainants contract of employment allows, at the employer’s discretion, for payment in lieu of any notice provided for in the contract. The term in the Complainant’s contract of employment grants the Respondent the right to terminate the contract without notice and to pay the Complainant in lieu of that notice.

Section 7(1) of the 1973 Act provides: -

“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".

Section 7(1) provides that nothing in the 1973 Act operates to prevent an employee (or an employer) from waiving his or her right to notice, on any occasion, or from accepting payment in lieu of notice. The effect of this subsection is that where an employee waives his or her entitlement to notice or accepts payment in lieu of notice their right to notice under section 4 is extinguished.

That jurisprudence in relation to contractual notice (as outlined by this Court in Fyffes Tropical Ireland Ltd v Loui Osman– UDD2413) is summarised in Redmond on Dismissal Law at paragraph [22.63] of the Third Edition:

“If a contract lays down a notice period, it will technically be a breach of contract to give pay in lieu of notice unless this right is reserved to the employer. If it is, and an employee accepts payment of wages 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. If there is no right to give pay in lieu of notice in the contract, the EAT will treat the case as a ‘no notice’ one and will add on the contractual or statutory notice, whichever is greater.”

At the time the Complainant’s employment was terminated he received payment in lieu of notice. The Complainant was paid eight weeks’ pay in lieu of notice in accordance with his contract of employment. The Complainant accepted, in accordance with his contract, the payment made in lieu of notice. Where an employee accepts payment in lieu of notice then their right to notice under section 4 is extinguished.

It follows that the “date of dismissal” for the purposes of the complaint of unfair dismissal under the 1977 Act was 30 July 2021.

1. Finding

Accordingly, the Court finds that the date of dismissal was 30 July 2021. That being the case, the complaint under the Act lodged on 22 March 2022 was outside the six-month timeframe permitted at section 8(2) of the Unfair Dismissals Act, 1977.  Therefore, the Court finds that the Complainant does not have locus standi to bring a claim under the 1977 Act and the Court has no jurisdiction to hear the Complainant’s complaint under the Act.

The Court varies the Adjudication Officer’s Decision.

The Court so decides.

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	Signed on behalf of the Labour Court
	Katie Connolly
ÁM	______________________
24th August 2026	DEPUTY CHAIRMAN

NOTE

Enquiries concerning this Decision should be addressed to Ms Áine Maunsell, Court Secretary.

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