Kinziger v Marketo Emea Ltd
| Jurisdiction | Ireland |
| Judgment Date | 28 June 2016 |
| Judgment citation (vLex) | [2016] 6 JIEC 2801 |
| Docket Number | CASE NO. UD876/2015 |
| Date | 28 June 2016 |
| Court | Employment Appeal Tribunal (Ireland) |
EMPLOYMENT APPEALS TRIBUNAL
CASE NO. UD876/2015
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. T. Ryan
Members: Mr. A. O'Mara
Mr. J. Dorney
heard this claim at Dublin on 28th June 2016
It was the respondent's case that the claimant did not have the requisite 52 weeks continuous service to bring the claim under the Acts.
It was agreed between the parties that the claimant's employment commenced on the 7th July 2014. It was the respondent's case that the claimant was dismissed on the 19th June 2015 on grounds of gross misconduct and therefore was not entitled to notice however in the spirit of generosity and goodwill the respondent paid the claimant minimum notice according to the provisions of the contract of employment. The contract provided for the giving of four weeks notice by either party to the contract at clause 18.1. Clause 18.3 stated that the company reserved the right to make payment in lieu of notice and when exercised the employment would terminate with immediate effect. It was the claimant's case that the period of contractual notice should be considered as service despite the company paying him in lieu of notice thus brining his service beyond the 52 weeks required.
The Tribunal received submissions from both parties surrounding the issues outlined.
Section 1 of the Unfair Dismissals Acts 1977 to 2007 defines the date of dismissal -
(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 claimant's contract of employment stipulates at clause 18.3 that:
Any notice to be given pursuant to this clause shall be in writing. The Company reserves the right to make payment of salary in lieu of such period of notice. Where the Company exercises its right to pay you in lieu of notice, your employment will terminate with immediate effect and you will not be entitled to any further payments or benefits from the Company. The Company also reserves the right to require you, and you hereby agree if so required, not to attend work during any such period of notice.
The Tribunal considered the respondent's submission that the part of this...
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Action Health Enterprises Ltd (Represented by William Fry) v Michael D'Arcy (Represented by Reddy Charlton Sols)
...21 Mr Dowling referred to the Employment Appeals Tribunal case relied upon by the Complainant, Kinziger v Marketo Emea Limited [2016] 6 JIEC 2801, which Mr Dowling said does not properly engage with the relevant statutory provisions. In Kinziger, the employee was dismissed for gross miscond......
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Date Of Dismissal ' A Complex Issue
...determined that the date of dismissal was the date on which the notice would have expired. In Kinzinger v Marketo Emea Limited [2016] 6 JIEC 2801 there was a clause in the contract of employment which stated that once the employer exercised its right to pay the employee in lieu of notice, t......