What Notice Period is an employee entitled to at the end of the employment ?.
The first step is to review the contract of employment to assess what is the notice period clause previously agreed to by the parties.
If the contract of employment states the employee is entitled to a one month notice period before the employment ends, then an Employee is entitled to rely on this contract provision and request the employer complies with same, failing which, the employee can have the matter referred to Workplace Relations Commission.
Sometimes it can happen when parties relationships break down, that an Employee is not afforded a notice period or not paid for the notice period timeframe.
The Minimum Notice & Terms of Employment Act 1973(as amended) directs that employers must give employees notice when terminating employment contracts. The notice period varies depending on length of service.
The legislation provides for the minimum notice periods that an employer must give.
This is set out in S.4
The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—
(a) if the employee has been in the continuous service of his employer for less than two years, one week,
( b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,
( c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,
( d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,
( e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.
There is an exception to the above rule regarding mandatory minimum notice periods an employer or employee must give to the other, in circumstances where there is misconduct by either the employer or employee.
There can be a lot of confusion as to what constitutes gross misconduct regarding employee behaviour, but it has been described in one case as:
‘’Very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer’’. This could be an assault or theft, for example.
Complaint to the Workplace Relations Commission
If an employee has not received their notice entitlement, they can seek a resolution of the matter by making a complaint under S. 12 of the Minimum Notice & Terms of Employment Act.
An adjudication officer in the Workplace Relations Commission can make a decision directing the employer comply with a notice period obligation and pay compensation to the employee for the loss sustained.
Payment of Wages Act 1991
The Payment of Wages Act 1991 also gives a legal protection to employees regarding wage deductions activated by employers.
S. 5 of the above act states that an employer must not make a deduction to an employees wages without either prior consent of the employee in writing, or without permission from the employment contract or arising from legislation, unless the deduction was fair and reasonable.
If an employer considers that the deduction was made because of some act or omission of the employee, importantly the employer should have provided to the employee notice in writing one week before the wage deduction was made, with information about the act or omission of the employee and the amount of the deduction.
Sometimes when workplace industrial relations break down, it can be prudent and practical for an employer to pay an employee their notice period entitlement, salary, and then not require them to work for the notice period to avoid any unnecessary conflicts, in our opinion.
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