Supreme Court

Bolands Limited (In Receivership)
(Plaintiff)

v.

Josephine Ward and Others
(Defendants)

No. 613sp of 1986 & No. 101 of 1987
[30th of October, 1987]

Status: Reported at [1988] ILRM 382

Henchy J. (Hederman J concurring)
	 Bolands Ltd were well-known Dublin bakers. In 1984 the company found itself in financial difficulties and appointed a receiver. It was then losing about £50,000 a week, so the hope that it could continue to trade was faint. The receiver, having consulted with the trade unions involved, decided that he would continue trading for the time being, in the hope that he would be able to sell the company and its assets as a going concern. Also, after informing the trade union representatives, he decided to serve on each of the affected members of the labour force of 380 a notice of termination of employment, for the purposes of the Minimum Notice and Terms of Employment Act 1973 (‘the Act’).
The Act provides that every employee who has been in the continuous service of an employer for a period of 13 weeks or more is entitled to a minimum period of notice, varying from one week to eight weeks according to the length of service.
On Friday 10 August 1984 the receiver gave notice in writing to each employee terminating his or her employment on a date specified, which in each case was not earlier than the end of the minimum period required by the Act. On Thursday 16 August 1984 (or, at latest, before the end of work on Friday 17 August 1984), that is, within the period of each original notice, each employee got a written notice extending the original notice by one week. Similar extensions were given on each succeeding week up to and including Thursday 4 October 1984.
Meanwhile the receiver was trying to sell the bakery as a going concern. Despite his best efforts he was unsuccessful. On 2 October 1984 he met the shop stewards and the trade union representatives and told them that he would extend the period of each employee’s notice of dismissal for one further week only and that the business would close down on 12 October. There seems to have been at the time no complaint from the employees or their representatives that the extended notices given were inadequate for the purposes of the Act. In fact, on termination of the employment on 12 October each employee signed a form entitled ‘Employee Entitlement Sheet’ acknowledging that no money was due in lieu of notice. It appears to have been about a year later that a complaint of inadequate notice was first made.
The complaints of inadequate notice crystallised into a reference under the Act to the Employment Appeals Tribunal (‘the Tribunal’). The Tribunal held in favour of the employees on the ground that, as the first notice of termination of employment was not acted on by the company, each employee was entitled to a further notice of dismissal following the expiry of the first notice, and that the Act was thereby breached.
The present proceedings were begun in the High Court by a special summons issued by the receiver against all the employees, by way of appeal on a point of law against the decision of the Tribunal. The relief asked for in the summons makes clear that the point of law being raised was whether the extended notices given were a sufficient compliance with the Act. In the High Court it was held, affirming the Tribunal, that they were not, so the receiver has carried the matter to this Court by way of appeal against the order of the High Court.
Before the passing of the Act, the law as to notice of termination of employment was not governed by any statute. The position was covered by the common law rule that employment was generally required to be terminated according to the express or implied terms of the contract of employment. The law to this effect was obviously considered to be unfair, for it allowed lengthy employment to be brought to an end in many cases by means of a short and unfair notice to the employee. The primary change effected by the Act was to provide that, regardless of the contract of employment, every employee with at least 13 weeks of continuous employment with the employer would be entitled to a notice of termination which must be of a period not less than the minimum period fixed by the Act for an employee with the relevant length of service. During the period of the notice, the employee is entitled under the Act to be paid according to the terms of the contract of employment and to have the same rights to sick pay or holidays with pay as if the notice of termination had not been given.
It has been submitted in argument in this appeal that the notice of termination, to satisfy the Act, must be specific. It has to be pointed out, however, that the form of the notice is not dealt with at all by the Act. The Act does not even require the notice to be in writing. What the Act is primarily concerned with is the length of the notice. When in a case such as this (where a notice of termination has actually been given) a reference under the Act is made to the Tribunal, the jurisdiction of the Tribunal is to determine whether the notice given complies with s. 4(2) of the Act, i.e. whether it is shorter than the statutory minimum, and if it is, to award the employee compensation for any resulting loss: see s. 12(1) of the Act.
It is conceded in this case that the first notice of termination was not, in the case of any employee, of less than the statutory minimum. It follows, therefore, that if those notices had been allowed to run their course, and the receiver had then dismissed the employees on foot of them, he would not have breached the Act.
What happened, however, is that before the original notices expired, the receiver extended the periods of the notices by one week. Seven further extensions by one week were notified by the receiver, each further extension being within the period of the then existing amended notice, so that when employment ceased on 12 October 1984 the original notice of termination had been extended eight times. This meant that each employee got a notice of termination which was eight weeks longer than the period in the original notice, so in each case it was at least eight weeks longer than the statutory minimum. So far from seeking to shrink the minimum period laid down by the Act, the receiver accorded each employee a period of notice well in excess of the statutory entitlement.
It is argued on behalf of the defendants that the receiver should not be allowed to rely on the cumulative periods created by the extensions of the original notices; that he should have either acted on the original notices or, if he did not wish to do so, served a fresh notice in lieu of each purported extension; and that the notice referred to in the Act should be construed as necessarily a precise one terminating on a specified date.
I cannot agree. As I have pointed out, the Act is silent as to the form of the notice of termination. The Act is concerned only with the period referred to in 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 the notice. There is nothing in the Act to suggest that the notice given should be stringently or technically construed as if it were analagous 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 will be whether the period of notice is less than the statutory minimum.
It is conceded in this case that the receiver acted in good faith in granting the extensions of the period of the first notice. The legal position would be different if a plurality of notices were used to mislead an employee or to subvert the proper operation of the Act. However, in this case it is clear that, from the time the first notice of determination of employment was given until employment ceased, each employee knew that he or she was under notice and that he or she was benefiting from the repeated extensions of the period of notice. If the minimum periods of notice fixed by the Act were being breached, one would have expected that at least some of the employees, or at any rate the skilled and experienced trade union officials who represented them, would at the time have questioned the validity of the dismissals. Instead of which, we find that on the closing down of the bakery each employee signed a form acknowledging in effect that the dismissals were valid.
I would allow this appeal and set aside the ruling of the Tribunal that the notices of termination relied upon by the receiver were inadequate. I would declare that those notices satisfied the requirements of the Act and, accordingly, that none of the defendants is entitled to compensation under the Act.

McCarthy J. 
 I agree that this appeal should be allowed.
The Employment Appeals Tribunal, in its determination of 24 January 1986, was ‘satisfied that the appellants (defendants in the instant case) received one week’s notice of the termination of their employment and that they are entitled to compensation in respect of their failure to receive their statutory minimum entitlement.’ The kernel of the decision was the finding that the defendants had not received their statutory minimum entitlement, provided for by the Act of 1973. The special summons, shorn of extraneous material concerning the method of calculation, is reduced to a claim that each of the defendants was on 10 August 1984 or on the days immediately thereafter given the relevant minimum notice. The notices as appropriate terminated on various dates between 17 August and 5 October 1984.
The issue as to the adequacy under the Act of the notice given constituted a dispute arising under the Act and, accordingly, was referred in the prescribed manner to the Tribunal. The decision of the Tribunal is final and conclusive, save that any person dissatisfied with the decision may appeal therefrom to the High Court on a question of law. (S. 11 .(2)). The procedure by way of special summons is brought under Order 3 Rule 22 of the Rules of the Superior Courts, seeking, inter alia, an order permitting the claim to be brought by special summons, although this is not reflected in the order of the High Court.
S.	4(1) of the 1973 Act provides:-

an employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of 13 weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of sub-section (2) of this section.

It is not in dispute that as of 10 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 introduce, it is said a degree of uncertainty; I do not accept such a proposition as being true on its face; it would require evidence to support it.
If it were shown, there being no possible ground for such a suggestion in this case, none such being made, that an employer was improperly or fraudulently manipulating contracts of employment and, consequently, the Act itself, so as to evade the requirements of the Act, by a series of such postponements, quite different considerations would apply. There is no suggestion of any impropriety on the part of the receiver, whose purpose was for the benefit of both the employer, whose business he was seeking to promote and whose role he held, and of the employees, whose jobs he was seeking to save. It may be that, even in such a case, the number of postponements and the overall time involved would be such as to create a different situation; such is not the case here.
The Tribunal commented that the notice of termination of employment must be specified; this is a question of law and, no doubt, the Tribunal was correct in its conclusion, if, by the term ‘specific’, it meant that the notice of termination must be certain. It was certain; the learned trial judge stated:-

the statutory notice to constitute a statutory notice must nominate at the outset a date on which the employment is to terminate and if the employer does not on the expiration of the notice act thereon, by bringing the employment to an end, the employer must be seen as either having waived the original notice or re-employed the employee so to render the employment continuous as a result of Rule 5 of the Rules comprised in the First Schedule to the 1973 Act.

The requirement that a notice of termination of employment must expire on a given date comes from the common law; the employment is from week to week or from month to month or whatever. The requirement of giving a minimum period of notice derives from s. 4 and is a gloss on the common law requirement. 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 somewhat 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.
I would allow the appeal accordingly, and make the order in the form suggested by Henchy J.