Industrial Yarns Ltd v Greene

• Jurisdiction: Ireland
• Judge: MR. JUSTICE COSTELLO
• Judgment Date: 01 January 1984
• Neutral Citation: 1983 WJSC-HC 526
• Court: High Court
• Date: 01 January 1984

1983 WJSC-HC 526

THE HIGH COURT

467SP/1981

INDUSTRIAL YARNS v. GREENE

IN THE MATTER OP THE MINIMUM NOTICE

AND TERMS OF EMPLOYMENT ACT 1973

APPEAL PROM EMPLOYMENT APPEALS TRIBUNAL

BETWEEN:

INDUSTRIAL YARNS LTD.

Plaintiff

and

LEO GREENE AND ARTHUR MANLEY

Defendants

Subject Headings:

CONTRACT: terms

EMPLOYMENT: termination

EVIDENCE: estoppel

WAIVER: rights

1 JUDGMENT OF MR. JUSTICE COSTELLO Delivered the 2nd day of February 1983

2 A number of former employees of Industrial Yarns Ltd., a company carrying on a textile business in Bray, Co. Wicklow, made claims to the Employment Appeals Tribunal that, pursuant to the provisions of the Minimum Notice and Terms of Employment Act 1973, they were entitled to compensation for loss which they had suffered arising from the failure of the Company to give them notice of intention to terminate their contracts of employment to which they claimed they were entitled under the Act. Having heard submissions on behalf of the parties the Tribunal in a Decision of the 5th May 1981 decided that in respect of 46 cases named in the First Schedule to its order compensation was payable by the Company and indicated that it would resume the hearing at a later date and then receive evidence of loss. The Company, however, appealed the Tribunal'sion pursuant to Section 11 of the Act and challenged its legal validity. The dispute before the Tribunal and now before this Court turns on the legal effect of events which happened in the middle of July 1980; the Company says that as a matter of law it did not terminate their employees" contracts of employment (as the Tribunal decided that it had done) and so it is submitted that the Company was not required to give the notices referred to in the Act of 1973.

3 Before turning to the facts of this case I should refer to the 1973 Act under which these claims have been brought. I can do so briefly. It is accepted that the Claimants were in employment to which the Act referred. Section 4 provides:-

"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 sub-section (2) of this Section."

4 Section 5 makes provision (by reference to the Second Schedule) for the rights (including the right to wages) of an employee during the period of notice required by the Act, and Section 7 makes it clear that an employee can waive his right to the notice referred to in Section 4 or accept payment in lieu of notice. I think it is important to bear in mind that the employee's 1973 Act rights arise in relation to the termination of his contract of employment and that an employer may break the contract without necessarily terminatingit. The issue raised in these proceedings is, in fact, a net one - but it is far from being a simple one depending as it does4 not only on a consideration of the Act of 1973 but also the construction of the Redundancy Payments Acts 1967– 1979, some of whose provisions v/ere applied in this case.

5 This appeal is brought on a point of law only. The facts relating to it are to be found in the Tribunal's findings (by which I am bound) and in those undisputed parts of the affidavits filed on this appeal which supplement the Tribunal's decision by exhibiting certain documentary evidence which the Tribunal had before it. These facts can be summarised as follows.

6 A strike took place at the Company's Bray premises on the 26th February 1980 which lasted until the 19th July 1980. It was settled following discussions which took place at the Labour Court on the 17th July between representatives of the Company and representatives of the Employees" Union. As a result of thses discussions a letter was written by Mr. Egan, the Company's Secretary, to Mr. Gannon, the national group secretary of the Irish Transport and General Workers" Union and this letter was the basis on which the employees voted to end their strike and return to work. As it is central to the dispute which subsequently arose I think I should set out the terms of this letter in full. It is dated the 17th July 1980 and reads as follows:-

"Dear Mr. Gannon,"

7 I wish to confirm to you the points made by me on behalf of the Company during the discussions with Mr. Paddy Lynch in the Labour Court today:-

8 (1) The claims made by your members were ruled by the Labour Court to be in excess of the terms of the National Understanding.

9 (2) Since the strike started, the trading position of the textile industry has deteriorated to an alarming degree and the Company cannot afford to offer higher gross pay than has already been offered i.e., it was proposed to increase the bonus from IR£12.50 to IR£13.86 per week for Operatives and this would bring the earnings of a 4 Group Shift Operator at full bonus to IR£101.9O per week, after the second phase of the National Understanding.

10 (3) We are faced with a serious redundancy situation and understand that a number of your members would prefer to be made redundant rather than work for the rates which we are offering. For this reason we propose that you provide us with a list of those people and, when work is resumed, we will lay them off and they automatically after four weeks can apply to be made redundant. As mentioned to Mr. Lynch we anticipate a very low level of activity for at least three months after resumption.

11 Faithfully yours,"

12 When work at the factory resumed on the 19th July only a small number of the pre-strike labour force of 188 employees were employed, the remainder, including the present Claimants, being "laid-off". Shortly afterwards the number employed reached 30 and at the date of the hearing before the Tribunal, on the 31at December 1980, the number employed had only reached 50.

13 The proposal in the letter of the 17th July was that (a) the Union would forward to the Company a list of those if its members who would prefer to be made redundant rather than work for the rates the Company was able to offer and (b) that the Company would lay off those employees who were on the list and they could subsequently apply to be made redundant. This proposal was accepted and a list of approximately 60 employees was sent to the Company on the 26th July, a list headed "List of People who do not wish to return". All these employees were laid off by the Company and subsequently after a four-week period of lay-off made claims for redundancy payments. Each subsequently received redundancy payments under the Redundancy Acts 1967– 1979.

14 As the terms of the claims made by the employees for redundancy payments are highly relevant for the determination of the Issues in this case I should refer to the nature of the claims which were made in some detail. Bach of the employees used a printed form which was headed "Form RP9 (issued by the Department of Labour) (revised three)". The printed form of notice contained two parts, one comprising a notice of intention to terminate employment and the second a notice of intention to claim redundancy payment. The form contained an advice that the employee was to complete one or other, but not both parts of the form. The form exhibited in these proceedings is signed by one Laurence Crowe and it is accepted that this form is representative of all the forms used by the present Claimants. It is of significance to note that Mr. Crowe only filled in that part of the Form which constituted a notice of intention to claim redundancy payment. In signing the form, which he did on the 29th August 1980, he stated:-

"I give you notice of my intention to claim redundancy payment in respect of lay-off and/or short-time during the period 19.7.80 to 29.8.80".

15 Mr. Crowe left blank that part of the printed form to be used when an employee wishes to give notice to terminate his employment. Accordingly I must approach this case on the basis that the employees gave notice of intention to claim redundancy payments and none gave notice of intention to terminate their employment. Mr. Crowe made a claim under the 1973 Act to the Tribunal dated the 16th October 1980. In the form used by him he stated that his employment had begun on the 1. 4.1968, that dismissal notice was received on the 19.7.1980 and that his employment ended on the 20.7.1980. Mr. Crowe was one of those mentioned in the Second Schedule to the Tribunal's order as a person whose lay-off the Tribunal considered to be genuine and whose claim that he had received no notice under the 1973 Act failed. But it is accepted by the parties that the claim form which he used is representative of all cases now before the Court. Some discrepancy also exists between the dates given in Mr. Crowe's form and the finding of the Tribunal that the date of the "lay-off" was the 22nd July, but nothing turns on this point and I will approach the case on the basis that the lay-off of all the present Claimants began on the 22nd July 1980. These Claimants have alleged in their present claims under the Act of 1973 that their employment ended on the date on which they were laid-off.

16 Because of the Tribunal's construction of the Redundancy Payments Acts it concluded...