Complainant

Respondent

Parties

Noel  O Neill

Securitas Security Services Ireland Ltd Same

Representatives

Noel O’Neill

Danny Ryan BL Securitas Security Services Ireland

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-00074525-001

18/08/2025

The Complainant seeks payment from the employer arising from the fact that he had to resign due to ill health. He states that his contract requires him to give 4 weeks’ notice to his employer and the Act states that he then is entitled to 4 weeks’ pay.

The Employer stated that the obligation under the Act is to give notice and by agreement to pay in lieu of notice on termination of the contract and that the claim is misconceived.

The Complainant stated the following in his form:

I issued my resignation by email on the 9th of July due to medical conditions and on the advice of my cardiologist and team. reviewing my contract of employment I had to give one months notice. upon receiving my final payment I did not receive my notice period amount which my employer statement I'm not entitled to as I was out sick. Please note I was unable to work my months notice as i was certified sick during this time period. I was advised by my employer that I was not entitled to my notice period payment as I resigned and did not work the months notice due to illness

The contract of employment stated that when an employee had over 4 years employment they must give a month’s notice. Due to illness the Complainant no longer was able to work and decided to resign. He gave the 4 weeks’ notice and during this period he should have been paid.

The obligation to pay notice by an employer is contingent upon the employee being capable of performing work during the notice period.

The Minimum Notice Acts do not provide for payment of notice where the employee resigns and does not work the notice period, absent an express contractual entitlement.

The notice period for the purposes of this complaint is 9 July to 9 August 2025. The medical certificates issued and sent to the employer also  cover this period, meaning the Complainant was not at any time ready and able to do work for the purposes of the notice period.

The Respondent relies on the Second Schedule in this regard specifically in circumstances where the Complainant did not work during the notice period, having last worked on 25 February 2025 some six months prior to resigning from the Respondent Company. The Respondent relies on the case [ADJ-00026366] A Driver v A Haulage Company and the later determination by the Labour Court MN/21/12. In that case the Respondent argued that as there was no dismissal and as the Complainant did not work the relevant period when choosing to resign from his position, no notice payment was due. The AO found that as no dismissal occurred, the employee resigned from his employment during a period of leave, and as such, the claim for notice payment was not well founded. The Labour Court later upheld the decision of the AO in this regard.

The Respondent therefore submits that on the Complainant’s own evidence, supported by the medical certificates, the statutory threshold is not met, and the Complainant fails to meet the criteria set down in the Act for the reasons set out above and accordingly, the claim must fail

The title of the Act states the following:

AN ACT TO REQUIRE A MINIMUM PERIOD OF NOTICE TO TERMINATE THE EMPLOYMENT OF THOSE WHO HAVE BEEN EMPLOYED FOR A QUALIFYING PERIOD, TO PROVIDE FOR MATTERS CONNECTED WITH THE GIVING OF NOTICE, AND TO REQUIRE EMPLOYERS TO GIVE WRITTEN PARTICULARS OF THE TERMS OF EMPLOYMENT, AND TO PROVIDE FOR OTHER MATTERS CONNECTED WITH THE MATTERS AFORESAID. [9th May, 1973]

Under the second schedule of the Act it states that:

1. Subject to the provisions of this Schedule, an employee shall, during the period of notice, be paid by his employer in accordance with the terms of his contract of employment and shall have the same rights to sick pay or holidays with pay as he would have if notice of termination of his contract of employment had not been given.

Employments for which there are normal working hours

2.(a) (i) An employee shall be paid by his employer in respect of any time during his normal working hours when he is ready and willing to work but no work is provided for him by his employer.

(ii) In this subparagraph “normal working hours” in the case of an employee who is normally expected to work overtime, include the hours during which such overtime is usually worked.

(b) In any case where an employee’s pay is not wholly calculated by reference to time, the pay which his employer is bound to pay him under subparagraph (a) shall be calculated by reference to the average rate of pay earned by the employee in respect of any time worked during the thirteen weeks next preceding the giving of notice.

As the employee was not available to work during the period of notice he has no entitlement to payment.

I find that the complaint is not well founded.

The Complainant has a view that he is entitled to payment during the notice period that he gave to his employer as required by his contract. However, he was certified sick during the period and not available to work.

The Complainant stated the following:

“I issued my resignation by email on the 9th of July due to medical conditions and on the advice of my cardiologist and team. reviewing my contract of employment I had to give one months notice. upon receiving my final payment I did not receive my notice period amount which my employer statement I'm not entitled to as I was out sick. Please note I was unable to work my months notice as i was certified sick during this time period. I was advised by my employer that I was not entitled to my notice period payment as I resigned and did not work the months notice due to illness”

As the employee was not available to work during the period of notice he has no entitlement to payment.

I find that the complaint is not well founded.

Unavailable to work-Employee Notice-Claim for Payment