FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : EXPD8 IRELAND T/A TRADEWINS - AND - BRIAN MC GOVERN DIVISION : Chairman: Mr Foley Employer Member: Ms Cryan Worker Member: Ms O'Donnell |
1. Appeal of Adjudication Officer's Recommendation No r-158580-ud-15/JT.
BACKGROUND:
2. The Worker appealed the Recommendation of the Adjudication Officer to the Labour Court in accordance with Section 9(1) of the Unfair Dismissals Act, 1977 to 2015 on 5 April 2016. A Labour Court hearing took place on 21 July 2016. The following is the Determination of the Court:
DETERMINATION:
This matter came before the Court by way of an appeal of a decision of an Adjudication Officer made in relation to a complaint made under the Unfair Dismissals Act 1977(the Act) by Brian McGovern (the Appellant) against his former employer EXPD8 Ireland t/a Tradewins (the Respondent).
The Appellant was employed as a field merchandiser with the Respondent from October 2012 until the contended termination of his employment in 2015.
Background
It is common case that the Appellant was a merchandiser on specific products in a store in Nutgrove Shopping Centre. The Appellant merchandised goods as an employee of the Respondent for two clients of the Respondent in that store for 8 to 10 hours per week. A client of the Respondent raised issues as regards the work of the Appellant in late January / early February 2015. As a result the Respondent asked the Appellant not to return to the Nutgrove store.
The Appellant contends that he wrote to the Respondent over succeeding weeks and received no reply. The Respondent asserted that it had not received the correspondence from the Appellant and stated that it moved offices during the period.
The Appellant made a complaint under another employment statute on 10thApril 2015 and the senior management of the Respondent made telephone contact with the Appellant on 22ndApril. A meeting took place on 30thApril. The Appellant contends that the Respondent stated at the meeting that the Respondent accepted that the failure to maintain contact was ‘unforgivable’. The Respondent stated to the Court that it conceded at the meeting that the matter had been mishandled and that there had been a breakdown in communication.
In any event the parties agreed at the meeting of 30thApril that they would meet again to deal with the question of work assignment to the Appellant. The Respondent wrote to the Appellant on 5thMay confirming the outcome of the meeting of 30thApril 2015 and stating
- ‘for the avoidance of any doubt, I can confirm that you are still an employee of the Company and Dave Doonan will revert at our next meeting with both a view of where and how the communication broke down and a proposal on your future calls with the company’
The Respondent contacted the Appellant by phone on 8thJune and the Appellant confirmed to the Respondent that he would not take up the offered schedule of work.
The within complaint was made to the Workplace Relations Commission in May 2015. Neither party could confirm the exact date on which the complaint was made and neither could confirm whether the complaint was made before or after the meeting of 20thMay 2015.
The fact of dismissal was in dispute between the parties.
Position of the Appellant
The Appellant contended that he was dismissed. The Appellant stated to the Court that he regarded himself as having been dismissed in February 2015. The Appellant could not identify an individual representative of the Respondent who had advised him of his dismissal.
The Appellant contended that it was unacceptable that the Respondent had asked him not to return to the Nutgrove store in February and subsequently did not make contact further contact with him until 22ndApril. The Appellant stated that the senior management of the Respondent acknowledged to him on 30thApril that the events between February and April 2015 were a breakdown in communication and were mishandled. He confirmed to the Court that the Respondent agreed to make payment of any monies due to the Appellant and to make work available to him.
The Appellant acknowledged to the Court that the Respondent confirmed to him on 5thMay that he was still an employee of the Respondent and confirmed that the Respondent offered him specific employment on 20thMay 2015. The Appellant confirmed that he remained engaged with the Respondent up until 8thJune 2015 at which point he had confirmed that he did not, for stated reasons, wish to take up the employment which had been offered to him.
Position of the Respondent
The Respondent contended that no dismissal of the Appellant had taken place. The Respondent acknowledged to the Court that the events of February to April 2015 were mishandled and represented a breakdown in communication. The Respondent stated to the Court that when the senior management of the Respondent became aware of the situation in April 2015 they acknowledged the unsatisfactory nature of the events since February, confirmed that any monies due would be paid, confirmed that the Appellant remained an employee of the Respondent and set about making work available to the Appellant.
The Respondent asserted to the Court that offers of employment were made to the Appellant but that in a telephone conversation with the Appellant on 8thJune 2015 the Appellant indicated that he did not wish to avail of employment with the Respondent. The Respondent stated to the court that no issues were raised with the Respondent on 8thJune as regards the location of the work offered and no other difficulties were raised as related to the specific offer of work which had been made to the Appellant.
Discussion and Conclusions
The fact of dismissal is in dispute in this case. The Appellant, as confirmed by him to the Court, made no complaint of Unfair Dismissal until May 2015 by which time he had received confirmation from the Respondent that he was still an employee, had received an acknowledgement that events between February and April were mishandled and was engaged in a process of discussion with the Respondent designed to secure the assignment of work to him.
The Court must acknowledge that the Respondent is responsible for the unacceptable treatment of the Appellant between February and April 2015. The parties however, by common submission to the Court, addressed those matters in engagement between them from 22nd April 2015 onwards. In the latter stages of that engagement the parties were focussed on finalising details of the work to be assigned to the Appellant. It was only in those latter stages, when the Respondent had confirmed the employment status of the Appellant and a specific offer of work was under discussion, that the Appellant made a complaint of Unfair Dismissal.
The Appellant states that the work offered to him was unacceptable because of its location. He confirmed however that the majority of the work offered to him would be in locations at least as near to his home as his previous location in Nutgrove. The Respondent stated to the Court that the Appellant had not raised any issue in discussion on 20thMay 2015 or on 8thJune 2015 as regards the location of the work which had been offered.
The Court has not been presented with any evidence of a dismissal in this case. It is certainly the case that a period of lack of communication occurred between February and April 2015. It is common case however that the parties engaged to address that matter and that the engagement between them moved to the issue of work assignment. That process included a specific offer of employment being made to the Appellant. No complaint of Unfair Dismissal was made by the Appellant prior to the engagement between the parties beginning on 22ndApril and no conduct of the Respondent subsequent to that date has been contended by the Appellant to have been unreasonable. In fact the Appellant contended to the Court that engagements between the parties should have continued after the telephone conversation on 8thJune 2015. The Appellant has made no submission to the Court that the Respondent in any way contributed to the cessation of engagement between them after 8thJune 2015.
The Court cannot accept that the sequence of events as described constitute a dismissal of the Appellant by the Respondent.
The Court has considered in the alternative whether the events as described could be interpreted as the constructive dismissal of the Appellant. The Court cannot accept that the conduct of the Respondent from 22ndApril 2015 onwards could be regarded as being such as to leave the Appellant no alternative to the termination of his employment. In any event the Appellant has made no submission to the Court that his employment terminated by way of dismissal on any date after 22ndApril 2015.
There is an onus on an employee contending that they have been constructively dismissed to demonstrate that they have made efforts to resolve the matter other than by termination of employment. In particular there is an onus on the employee to utilise all available procedures to address the issue with the employer.
The Court finds that the Appellant in the within case has not established that he utilised available procedures and in particular the Court has had no clear explanation as to why the Appellant ceased the engagement the commencement of which pre-dated his complaint in the within case and which continued after the making of that complaint until his final engagement with the Respondent on 8thJune 2015.
For the reasons stated above the Court finds that the Appellant was not unfairly dismissed.
Determination
The Court determines, for the reasons stated above, that the Appellant was not unfairly dismissed and the decision of the Adjudication Officer is affirmed.
Signed on behalf of the Labour Court
Kevin Foley
26th July 2016______________________
MNChairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.