Irish Shipping Ltd (in Liq.) v Byrne
Jurisdiction | Ireland |
Judge | Mr. Justice Lardner |
Judgment Date | 01 January 1987 |
Neutral Citation | 1987 WJSC-HC 1791 |
Docket Number | [1985 No. 901 Sp] |
Court | High Court |
Date | 01 January 1987 |
1987 WJSC-HC 1791
THE HIGH COURT
AND
Citations:
MINIMUM NOTICE & TERMS OF EMPLOYMENT ACT 1973 S12(1)
MINIMUM NOTICE & TERMS OF EMPLOYMENT ACT 1973 S11
MINIMUM NOTICE & TERMS OF EMPLOYMENT ACT 1973 S42
MINIMUM NOTICE & TERMS OF EMPLOYMENT ACT 1973 S4
MINIMUM NOTICE & TERMS OF EMPLOYMENT ACT 1973 S7
MINIMUN NOTICE & TERMS OF EMPLOYMENT ACT 1973 S12
MINIMUM NOTICE & TERMS OF EMPLOYMENT ACT 1973 S5
MINIMUM NOTICE & TERMS OF EMPLOYMENT ACT 1973 S5(1)
MINIMUM NOTICE & TERMS OF EMPLOYMENT ACT 1973 S13
COMPANIES ACT 1963 S285
Synopsis:
EMPLOYMENT
Termination
Notice - Absence - Employment continued - Continuation terminated - Employee's entitlement to compensation - Liquidator of company purported to terminate contract of employment of an employee of the company when the company was ordered to be wound up - The employee was not given the minimum period of notice of that termination as required by s.4 of the Act of 1973 - That section states that an employer shall, in order to terminate the contract of employment of an employee, give to the employee a minimum period of notice - Despite that termination the liquidator continued to employ the employee at his former wages for a period of eight weeks on a daily basis - Compensation was awarded to the employee by the Employment Appeals Tribunal on the basis that the employee had not been paid his wages during the appropriate period of notice as required by s.5 and the second schedule of the Act of 1973 - Appeal by the company to the High Court - Held, in allowing the appeal, that s.12 of the Act empowered the Tribunal to award an employee compensation "for any loss sustained by him" by reason of the default of his employer - Held that the employee had not sustained any loss since the continued period of employment, during which the employee had received his wages, exceeded the period of notice which was applicable pursuant to s.4 when the liquidator first terminated the employment before its continuation - Held that the employee's employment had not continued unbroken until the termination of the eight-week extension - Minimum Notice and Terms of Employment Act, 1973, ss.4, 5, 12 - (1985/901 Sp - Lardner J. - 8/7/86) [1987] IR 468
|Irish Shipping v. Byrne|
Judgment of Mr. Justice Lardner delivered the 8th day of July 1986.
These Appeals are brought under Section 11 of the Minimum Notice and Terms of Employment Act 1973against a decision of the Appeals Tribunal awarding sums of compensation to the Respondents (other than the Minister) whom I will refer to as the Respondents and who were the Master of a ship called Irish Ceder, the property of Irish Shipping Limited and certain shore based employees of Irish Shipping Limited. The claim arises under Section 12 (1) and originates in the purported termination by the Liquidator of Irish Shipping Limited of the employment of the Respondents as a result of a winding up Order and the authorised decision of the Liquidator communicated to the Respondents by letters of the 4th of December 1984 and it is not disputed that there was a failure by the employer to give the Respondents as employees the notice required by Section 42 of the Act. In such circumstances Section 12 (1) provides that:
"The employee may refer the matter to the Tribunal for arbitration and the Tribunal may award to the employee compensation for any loss sustained by him by reason of the default of the employer."
In the present case awards having been made by the Tribunal, which were disputed by the Liquidator who is the present Applicant, the matters were appealed to this Court by the Liquidator.
It is common case that until the 4th of April following, that is for a continuous period of more than eight weeks after the 4th of December when their employments were terminated each of the Respondents was re-employed by the Liquidator on a day to day basis at the same wages and as I understand it on substantially the same terms as his original employments. I understand these facts were in evidence before the Tribunal which nonetheless made the awards to which I have referred. Counsel for the Minister has submitted that these awards are correct because Section 5, Clause 1 and Clause 1 of the Second Schedule when read together confer on the Respondent employees in the circumstances of this case a statutory entitlement to the...
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