For many employers it has always been accepted that, if an employee resigns or is terminated from their employment, the date on which the notice was given becomes the first day of the contractual notice period. A recent decision from the Employment Relations Authority may make you rethink this.
Ms Sheridan was employed by Pact Group within the role of a Community Support Worker. Following a period off work on ACC, and the failure of a suitable return to work arrangement to be put in place, Pact terminated Ms Sheridan’s employment.
Sheridan was unhappy with this decision and therefore raised a personal grievance for unjustified dismissal through her Union. The grievance was not resolved at mediation with the union then filing the matter in the Employment Relations Authority (ERA).
Pact’s defense included a claim that the grievance had not been raised within the statutory 90-day period following the event that had given rise to the grievance, in this case this being the notice of dismissal.
The ERA was therefore required to assess the validity of the 90-day period and specifically the date on which this commenced.
As the argument around the commencement of the 90-day trial involved dispute over a single day (i.e. was the grievance filed by the Union received on the 90th day or the 91st day) the ERA investigation required careful analysis related to whether the date the notice was given was in fact day one (1) of the 90 day period, or did day one (1) commence on the day following the provision of the notice.
In undertaking their investigation into this matter, the ERA look at the contractual notice period stated within Ms Sheridan’s terms and conditions of employment. This confirmed that Pact were required to provide her with two weeks’ notice meaning that the end of her employment was to be 14 days later – this then being the first day of the statuary 90-day period for her to raise a valid personal grievance.
Pact’s argument centered on the claim that the day on which Ms Sheridan was given notice is deemed to be day one of the notice period however the Union claimed that, for a full two weeks’ notice to be provided, the two-week period must commence on the day following the provision of the termination notice.
Within its determination on the matter, the ERA stated that an employer cannot seek to shorten the contractual notice period by including the day on which the notice was given. The union’s agreement was therefore upheld in favour of Pact’s position with the raising of the personal grievance within the statuary 90-day period then being deemed valid.
This case raises valuable insights, not just for the raising of personal grievances, but also for the calculation of final leave payment based on resignations and terminations. The conclusion being that any notice period to be given or received takes effect (commences the countdown) from the day following the given or receiving of the notice – not from the date on which the notice is received/given.
Importantly, the working of any termination notice, or acknowledgement of resignation, should be carefully written to ensure that all parties are clear as to what date will constitute the employee’s final day of employment.
If you have any questions about providing notice or with respect to the calculation of final payment entitlements, please feel free to give us a call.
From an employer’s perspective, this could make the difference between whether a full day’s additional pay is to be required or not, over the traditional position that the notice period commences on the day the notification occurs.