Payment in Lieu of Notice during Probation

Background

The case of Eric Bentley v Carcharger EV Limited (ADJ00050468) examines the circumstances under which an employee will be entitled to a payment in lieu of notice if dismissed during their probationary period. This is a very interesting case, as it was brought under the payment of wages provisions, but decided upon under notice legislation.

Mr Bentley (the Complainant) brought a complaint under Section 6 of the Payment of Wages Act, 1991 against Carcharter EV Limited (the Respondent) to the Workplace Relations Commission (WRC), alleging that, although he did not successfully pass his probationary period, he was entitled, according to his contract of employment, to notice of thirty days. He claimed that the Respondent only paid him one week’s notice, arguing that the reason for this was that he was dismissed during the probationary period.

Legislation and Case Law

While this was a complaint under the Payment of Wages Act 1991, it should be noted that the entitlement to payment for notice is set out under the Minimum Notice and Terms of Employment Act 1973, as amended (the Act). Section 4 of the Act provides as follows:

4. Minimum period of notice

(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.

It is clear from the above, that in order to come within the protections of the Act, an employee is required to have thirteen weeks or more continuous service with an employer before filing a complaint under this legislation.

Decision

Ultimately, the Adjudication Officer decided that they did not have the jurisdiction to hear the complaint as the Complainant did not have sufficient service with the Respondent to come within the ambit of the Minimum Notice and Terms of Employment Act 1973.

The Adjudication Officer determined that:

“In this case, there is no dispute that the Complainant commenced his employment with the Respondent on 2 January 2024. There is also no dispute that, initially, the Complainant’s last date of employment was recorded as 29 February 2024 to include one week’s notice pay. However, the Complainant’s contract of employment provided a notice period of one month. Therefore, in accordance with the provisions of his contract of employment, the Complainant’s last day of employment was, in fact, 21 March 2024, to include one month’s notice pay. Accordingly, I find that the Complainant was employed by the Respondent for a period of 79 days or 11.29 weeks (79/7).”

Takeaway

This case raises certain questions as to the enforcement of a contractual provision that provided additional benefits to the employee, above the statutory requirements. Ordinarily, wages need to be ‘properly payable’ for a successful claim and if both parties expressly agreed that no minimum period would apply to an extended notice period, it is difficult to conceive why such a clause wouldn’t be enforced by the WRC.

The takeaway for employees considering bringing a complaint under the Payment of Wages Act, 1991, on foot of a payment in lieu of notice issue, is to consider whether they have the requisite service to bring such a claim and clarify the basis upon which any statutory or contractual payment is owed.

For employers, it will be necessary to demonstrate that they either made the requisite payment in lieu of notice or that such a payment was not legally due.

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.