Minimum Notice
Case Law
Waterford Multiport Limited (In Liquidation) v. Fagan
[1999] IEHC 158
Mrs. Justice Macken
“14. The issue of law which arises for consideration is whether, in giving the above notices of the 5th and 6th May, 1997, the requirement of Section 4 of the Act of 1973 were complied with. Section 4 of the Act reads as follows:-
“S.4. An employer shall, in order to terminate the contract of employment of an employee, who has continuous service of 13 weeks or more, give to that employee the minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.”
15. The statutory periods in question are from one week to eight weeks depending on the length of service of the individual employee. There is no complaint in this case that the actual notices given did not accord with the time scales provided for under the Act.
16. It has been contended for on the part of the Plaintiffs that the purpose and the basis for the section have been considered in detail by The Supreme Court in the case of
Bolands Limited (in receivership) v Ward (1988) ILRM 382. At p.389 of the judgment Henchy, J. stated:-
“The Act is concerned only with the period referred to the notice, and it matters not what form the notice takes so long as it conveys to the employee that it is proposed that he will lose his employment at the end of a period which is expressed or necessarily implied in that notice. There is nothing in the Act to suggest that the notice should be stringently or technically construed as if it were analogous to a notice to quit. If the notice actually given – whether orally or in writing, in one document or in a number of documents – conveys to the employee that at the end of the period expressly or impliedly referred to in the notice or notices it is proposed to terminate his or her employment, the only question normally arising under the Act is whether the period of notice is less than the statutory minimum.” (emphasis added)
17. Further, in the judgment of McCarthy, J. it is stated:-
“It is not in dispute that as of 10th August 1984 or immediately thereafter the employer did give each employee the appropriate minimum period of notice so calculated. The subsequent weekly extension or postponement of such notice coming into effect did not negate the compliance by the employer with the requirements of s.4. The employer had given the minimum period of notice; the series of weekly postponements had the effect of giving significantly longer than the minimum period of notice. It did not introduce a degree of uncertainty; I do not accept such a proposition as being true on its face; it would require evidence to support it”.
18. There is one further passage of importance. Having quoted from the decision of the learned High Court judge who had found that if the employer did not move on the notice at the termination date, he must be seen to have waived the original notice or re-employed the employees (with the consequences which that brings), McCarthy J. stated:-
“I do not read the statute as making it a statutory requirement other than to include in the notice of termination, however long it may be, the minimum period. Such a minimum period was correctly stated in each case; where the postponement from week to week affected, however marginally, the entitlement of any particular employee, the appropriate adjustment was made. In my view, the issue before the High Court became clouded because of references to waiver and estoppel.
The simple issue of law was whether or not the notice given complied with the requirements of S.4. In my judgment it did.” (emphasis added).
19. It seems to me that this last paragraph is a reference to the fact that in the High Court there were arguments about a claimed waiver by the employer of its rights under the notice because the employees were not fired immediately upon the expiry of the notices. If that is a correct assessment of the meaning of the words used by McCarthy, J., then it seems to me that the Supreme Court has clearly stated that what is required under the Act is that the length of notice given is what must be specific, that it is not necessary that the actual termination date be included, but that in no case should the words used not be clear and certain. In the case of the letters used here, the length of time given – all other things being equal – was wholly lawful. Moreover, the actual date of termination in the notice was certain, namely the 20th June on the one hand and the 7th November on the other hand.
…36. In the circumstances I am bound to find that the notices were not invalidated by virtue of the employer not ensuring that the employees left on the due date, being a certain date for the purposes of the Act, nor by virtue of the Defendant’s claim that the employees at the expiry of the notice term, and not having left or been fired, became re-employed. It was submitted on behalf of counsel for Mary Clohisey, the fifth defendant in the Maria Boyle case, that the legal consequence of the failure to ensure that the employees who were given notice which expired on the 20th June, 1997 actually left, was that the employees became re-employed or had their contracts renewed.
37. It seems to me, having regard to the findings in the Boland case, supra, that the contention put forward on behalf of Ms. Closihey is not well founded. And this notwithstanding the provisions of Rule 6 of the Rules comprised in the First Schedule to the Act of 1973. The Rule states as follows:-
“The continuous service of an employee in his employment shall not be broken by the dismissal of the employee by his employer followed by the
immediate re-employment of the employee.”
38. Having regard to the remaining matters found in the First Schedule to the Act of 1973, the purpose of this Rule is to ensure that an employer does not seek to avoid continuous service by an employee, so as to evade the provisions of the Act, by artificially dismissing an employee and immediately re-employing or re-instating him. Moreover, it seems to me that the use of the word “re-employment” in this Rule means an actual re-employment of the employee. That is not what occurred here, and the Rule does not cover the mere failure of the employer to ensure that the employee no longer continued in employment after a minimum notice period had expired. It is argued by the Plaintiffs that Rule 6 cannot apply because, in fact, the dismissal did not take place until the liquidator was actually appointed.