Dispute over notice period

Faith · 21-08-2023 12:01pm #1

Hi,

I'm asking on behalf of someone else. This person has worked for a company for 2.5 years on a series of short-term contracts (each 6-12 months). The notice period stated in the contract is 4 weeks. The person has been offered a new job and approached their manager last week to discuss a mutually agreeable end date, aiming for 2.5 weeks later rather than 4. The manager wouldn't meet with the person for a few more days, then refused to be flexible with notice periods, stating basically "Either give us the 4 weeks or get out of here [in 2 days]."

Am I correct in thinking companies owe their employees a minimum notice period? From what I can tell, the company is still required to give 2 week's notice, with pay, in this case and can't simply terminate employment because they are annoyed. I'd appreciate guidance from others though, because this is far from my area of expertise.

21-08-2023 12:28pm

Notice periods can be waived by mutual consent. A company can't unilaterally ignore notice periods, but that's not what's happening here. The employee is being given an option - either work the notice period as per their contract or they can agree to end in two days

Faith · 21-08-2023 1:43pm

https://www.boards.ie/discussion/comment/121007044#Comment_121007044

Sorry, perhaps I worded things incorrectly and I wasn't obviously privy to the conversation so that may impact how I'm relaying things. My understanding is that the employee was told to work the full notice period, or have their contract terminated in two days. They don't agree to either of the options - they proposed a reduced notice period but that was rejected by the employer, and they certainly didn't want to leave the role on bad terms before their work was wrapped up and handed over.

From the Workplace Relations Commission:

Waiving Right to Notice or Accepting Pay in Lieu

Any provision in a contract of employment for shorter periods of notice than the minimum periods stipulated in the Acts has no effect. The Acts do not, however, prevent an employer or employee from waiving his/her right to notice or accepting payment in lieu of notice. If the employer does not require the employee to work out any part of their notice, the employer is obliged to pay the employee for that period.

The employee has a minimum statutory notice period of two weeks, which they offered to work. The employer rejected that, so surely the part in bold applies?

Tomw86 · 21-08-2023 1:53pm

The Acts do not, however, prevent an employer or employee from waiving his/her right to notice or accepting payment in lieu of notice.

This is the part that would be the case here if the employee is in breach of contract. The employee would waive their payment as they are not working the notice period contained within the contract which they signed (assuming it wasn't under duress).

Retr0gamer · 21-08-2023 2:04pm

Agree to the 4 weeks. Get covid for the last week and a half.

21-08-2023 2:14pm

https://www.boards.ie/discussion/comment/121007597#Comment_121007597

There are two (non-contract) proposals on the table:

Proposal by employee: finish in 2.5 weeks - Employer does not agree to this
Proposal by employer: finish in 2 days - Employee does not agree to this

No mutual agreement has been reached, therefore the contract terms are what apply

Faith · 21-08-2023 3:14pm

Thanks folks. I'm struggling to understand then in what situations the bolded section would apply? Would it be the case if the employee gave their notice and the employer elected to tell them to finish straight away, without the employee asking to reduce a notice period?

It seems quite unclear to my unfamiliar brain! The person in question since contacted the WRC directly who verbally told them that they were entitled to two weeks pay in this situation, so I remain confused 🤷.

21-08-2023 3:34pm

https://www.boards.ie/discussion/comment/121008054#Comment_121008054

Would it be the case if the employee gave their notice and the employer elected to tell them to finish straight away, without the employee asking to reduce a notice period?

That's my understanding.

caviardreams · 21-08-2023 6:25pm

https://www.boards.ie/discussion/comment/121008145#Comment_121008145

Exactly - as it stands the employer is perfectly happy and wants the employee to work the contracted 4 week notice. It is the employee who doesn't and was seeking an alternative not the employer

Faith · 21-08-2023 6:50pm

https://www.boards.ie/discussion/comment/121008868#Comment_121008868

Thanks. So out of curiosity, what would happen if the employee went back to employer and offered to work the full notice period and the employer refused to allow that?

caviardreams · 21-08-2023 6:55pm

https://www.boards.ie/discussion/comment/121008966#Comment_121008966

Then they would have to pay them for the 4 weeks

callaway92 · 21-08-2023 6:56pm

https://www.boards.ie/discussion/comment/121008966#Comment_121008966

They would have to pay the employee for the full contracted notice period.

Faith · 21-08-2023 7:06pm

Thanks everyone, really useful responses.

Faith · 22-08-2023 8:26am

Hi again, there has been an update so I'm just clarifying again to know how best to proceed.

As a result of better understanding the situation, the employee wrote to the employer apologising for poor communication and agreeing to work out the full notice period. They wrote the date that they would finish, which was 4 weeks from the date they handed in their notice. The employer replied, by writing, saying they want them finished next Monday regardless.

As far as I can tell from your helpful responses above, the employer must now pay for the full contracted notice period as the employee indictated their complete willingness, in writing, to see out their full notice period and this was rejected by the employer.

If my understanding is now correct, any advice on how the employee should proceed?

22-08-2023 8:47am

https://www.boards.ie/discussion/comment/121010705#Comment_121010705

"If you don't want me to work my notice period, that's fine, but you still need to pay me for the full period, as set out in the Minimum Notice and Terms of Employment Act"

However, the employee needs to be aware that if they do that, there's every possibility that the employer says "Fine, but we do need you in work for the full notice period". If that's going to impact on their new job, they'll have to decide whether the extra 4 weeks pay is worth it.

Peregrinus · 22-08-2023 8:49am

https://www.boards.ie/discussion/comment/121010705#Comment_121010705

They should confirm that they will not come to work from next Monday, as instructed, but that they expect to be paid for their contracted notice period, which they were (and still are) happy to work if required. Then wait until the appropriate pay date has passed, ask once more, then commence claim in Workplace Relations Commission.

skallywag · 30-08-2023 11:28am

https://www.boards.ie/discussion/comment/121008966#Comment_121008966

This situation is actually quite common, in that the employer requests that the employee leave immediately, and not work out their notice. It is usually a lucrative situation for the employee, as you must then be paid for the full notice period in any case. So can be a v nice windfall in the case say that you have a 2-3 month notice period, and you have a new gig lined up to move right into.

Faith · 30-08-2023 12:24pm

Thanks again everyone, the outcome was that the employee finished up as instructed and got written confirmation that they will be paid for the full notice period. Your advice here was invaluable, particularly understanding the distinction around being willing to work the full notice period. Honestly, the manager was an idiot who cost the company 4 weeks of pay with no labour, when he could have had two weeks of labour and saved the company two weeks of pay but it worked out in my friend's favour (apart from the unnecessary stress and tension).

Buffman · 30-08-2023 3:07pm

Nice outcome for them. That situation is more commonly known as 'Gardening leave' and is a bit more common in MNCs.

Dispute over notice period

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Waiving Right to Notice or Accepting Pay in Lieu