Panel Duct Ltd (Walsh Group) v Brian Mulhare (Represented by Hg Carpendale & Company Solicitors)

• Jurisdiction: Ireland
• Judgment Date: 21 March 2018
• Judgment citation (vLex): [2018] 3 JIEC 2102
• Date: 21 March 2018
• Docket Number: FULL RECOMMENDATION DETERMINATION NO.PWD1814 ADJ-00010540 CA-00012952-001
• Court: Labour Court (Ireland)

Labour Court (Ireland)

FULL RECOMMENDATION

PW/18/5

DETERMINATION NO.PWD1814

ADJ-00010540 CA-00012952-001

PARTIES:

Panel Duct Ltd (Walsh Group)

and

Brian Mulhare (Represented by Hg Carpendale & Co Solicitors)

DIVISION:

Chairman: Mr Hayes

Employer Member: Ms Doyle

Worker Member: Ms Treacy

SECTION 7(1), PAYMENT OF WAGES ACT, 1991

SUBJECT:

1 1. Appeal Of Adjudication Officer Decision No: ADJ-00010540 CA-00012952-001

BACKGROUND:

2 2. This is an appeal of an Adjudication Officer's Decision made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 16 March 2018 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:

DETERMINATION:

3 Mr Brian Mulhare (the Complainant) was employed as a Sales Director by Panel Duct Limited (Walsh Group) (the Respondent) with effect from 4 September 2015.

4 The Respondent experienced trading difficulties in 2016 as a result of which it placed the Complainant on a period of lay-off with effect from 6 January 2017.

5 The Complainant contested the lay off by way of an email to Mr Sean Fitzpatrick dated 9 January 2017. In it he stated “I would comment that there is absolutely no temporary shortage of work from a sales perspective as I endeavour to secure contracts many of which have been months in negotiations and are very close to closing.”

6 He then proceeded to list a number of projects that were under negotiation that had a total combined value of €11,838,803.

7 Ms Susan Mallon, Office Manager, responded to that email by letter dated 12 January 2017 on behalf of the Respondent. In it she states I write to confirm that the content of our letter issued to you on 6 ^th January 2017 stands and you will be temporarily laid off in accordance with your Statement of Main Terms of Employment with effect from Friday, 13 ^th January 2017. This means you should not present yourself for work on Monday, 16 ^th January 2017.

8 By way of letter received on 19 January 2017 the Complainant wrote to the Respondent in the following terms I wish to invoke the employee Notice of Termination 1 Month Clause in my Contract of Employment with immediate effect.

9 I am available to work this time period from now however should you prefer that I should not conduct further company business then I would request you to do the following:

• 1. Issue my P45 and one month's salary in line with the contract

2. Pay a small outstanding expense claim which I have not yer submitted but will do so before the end of this week

3. Confirm that the company pension contributions are up-to-date and will be paid until the day of termination

I confirm that all items of comapy property including the mobile phone and sim card have been returned to Gary Corbett in Castlebar and Susan Mallon in Ballinrobe.

Please advise immediately of your decision about whether or not I should carry out my work duties during the Notice of Termination 1 Month time period.”

10 The Respondent replied in the following terms by letter of 24 January

“…. Your resignation is accepted. Please not that I would expect you to offer to remain in employment for the period of your notice. During that time you are likely to continue on lay-off for the next couple of weeks. That being the case, we are prepared to waive your contractual obligation to give a month's notice. You should note that the company is not required to pay a month's notice in such a case. Should you decide not to leave before the expiry of your notice, you should know that we are in an ever-changing situation and the continuation of your lay-off will be monitored on a weekly basis to determine whether it will be possible to return to work prior to the termination of your employment. Your P45 will be issued on your termination date…….”

11 By further letter of 31 January the Respondent instructed the Complainant as follows

“Please be advised that during your temporary layoff period...