ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023348
Food & Beverage Assistant
Denis A. Linehan & Co.
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 15/10/2019
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant commenced her employment with the Respondent on 2nd September 2016.
She referred her complaint to the Director General of the WRC on 25th July 2019 claiming that she was unfairly dismissed.
The Respondent claims that the Complainant was not dismissed but resigned her position.
Summary of Respondent’s Case:
The Respondent submits that it was surprised to receive the notification of the Complainant’s claim.
The Respondent submits that the Complainant was not dismissed by the Respondent. She walked out from her employment on 6th April 2019 and has admitted same in her statement as submitted by her solicitor to the WRC. She confirmed her resignation by email to the Respondent on 10th April 2019 and she requested a copy of her P45.
The Respondent argues that the Complainant received a copy of the Grievance Procedure with her contract. At no stage during her three years’ employment with the Respondent did the Complainant raise any grievances through the Respondent’s Grievance Procedures.
The Respondent submits that the HR were not made aware of the circumstances of the Complainant’s departure. The Respondent noted that the Complainant did not include HR in her email of 10th April 2019 sent at 1.07pm. However, she included JW, HR and another person in her email of 4.07pm requesting her P45. In this email she did not make any reference to the circumstances.
The Respondent noted that the Complainant also requested her P45 in her text to JW on 6th April 2019.
The Respondent submits that, if the Complainant regrets her decision to resign her position, the Respondent would be happy to discuss the option of her returning to work if she would like to consider same.
Summary of Complainant’s Case:
The Complainant submits as follows:
She has worked for the Respondent for the past 3 years as a casual employee.
She claims that in the last couple of months of her employment things had changed significantly, especially after a new supervisor, SA was appointed. The Complainant expressed her concerns about SA’s professionalism and skills.
The Complainant submits that after an incident with SA, she was told by an Assistant Manager, AB in a briefing in front of all staff that “If you don't listen and you don't like it, you know where the door is, we can find people who will work here". The Complainant submits that AB did not know what exactly had happened as he was away, but she felt blamed without having her opinion heard. The Complainant confirmed that there were some six participants at the meeting in question and AB did not name her when he said that, but he looked at her and she believed that it was directed to her.
The Complainant submits that SA and another employee, a waitress (SL), have given the Complainant a very hard time using every opportunity to make her life in the restaurant very difficult and sabotage her job in order for her to have problems with the management. The Complainant felt bullied, neglected and assaulted by their constant pushy behaviour. The Complainant argues that she has told them to stop a few times with no result. The Complainant says that she has disclosed this in a personal conversation with one of the members of the management, but she was not sure if it has been discussed with others.
Two weeks after the incident with SA, on 6th April 2019, the Complainant went to work and started to perform her duties. She was helping another member of staff as well. SA several times made bad comments and refused to help them. In the meantime, the Complainant was rushing to clean the section of another member of staff who was just wandering around and taking it easy. SL picked up two plates from a table, smiling, and asked the Complainant to give dessert menus to the customers. The Complainant said ‘no’ and few minutes later told her that the least she could do when she sees the Complainant rushing and cleaning after her is to give the customers menus. The Assistant Manager, AB stood right beside the Complainant and told her that they are supposed to work as a team. The Complainant claims that she said that they do the easy bits and leave her to clean after them all the time and this is not fair. AB replied: “Oh, you clean after them?”. The Complainant said to SL that she said what she had to say and for her the conversation was over. The Complainant walked back to her section. AB called her back and told her again that they are supposed to work as a team. The Complainant answered that she did not care because he did not even ask what had happened. The Complainant said that it was not acceptable that she was doing SL’s job and SL was not willing to help the Complainant. She told AB that he does not understand that she works with them, but they don't work with her.
The Complainant claims that AB stood up by the fridge door, looked at her and said, "Thank you very much" and his look and the tone left her with no doubt that he would like her to leave. She took her bag and her jacket. They were all just looking at her, she said ‘bye’ and went home.
The Complainant argues that if they thought she was walking out of the job they could have asked her what she was doing. She understood that she was sent home.
The Complainant submits that at the time the Restaurant Manager, JW was not there. When she went home, she texted him "Hi [JW], you were not there and don't know what happened but I was send home today. I guess this means that you have to take me off the roster tomorrow, and I will email on mode you and accounts for me p45" (sic).
JW answered, "l have covered your shift for tomorrow and will ring you when I am in".
She understood that her shift would be covered on the next day and things would be clarified then. From Saturday to Wednesday, the Complainant waited for JW to ring her.
On Wednesday she received an email with a roster. There were no hours on the roster for her and, as a consequence, she wrote two emails to the Respondent.
Email 1 sent on 10th April 2019 at 1.07pm to JW:
I was expecting you to call as discussed before I proceed with request. I received the roster and am officialy proceeding my query. I just tought is it a bit unfair that after 3 years nobody heared my side of the story in order to have an objective opinion and make reasonable decision on the circumstances. I wish you all the best in future, I will send the email requsting my p54 shortly.” (sic)
Email 2 sent on 10th April 2019 at 4.02pm to HR Department and JE:
“Dear [named HR person] and Management,
As am no longer part of the team in the [Respondent], I would like to request my P45 when appropriate. If there is any Hols payment left, please proceed them respectively. I would kindly ask for a letter stating that they are no longer hours for me with the restaurant in order to register with Social Welfare. I will bring back my uniforms as soon as I get a chance.
P.S. [named HR person] I have some casual dockets that you may need to fill until then, I will leave them at reception if that’s ok with you.
Thank you all for everything.
The Complainant claims that she received no letter to provide to the Department of Employment Affairs and Social Protection to register for unemployment benefit. At the time she was on casual dockets filled in for the days she was not working on. Inability to provide such letter leads to payment penalties from 9 to 12 weeks. Because of the delay and no further reply from the management, she delayed her registration for a week, which caused further problems for her. Moreover, a person from Accounts Department of the Respondent wrote on her dockets to the DEASP that the Respondent had hours available for her after she had received an empty roster, but she no longer wished to work for the Respondent causing further complications.
The Complainant submits that this is not the first time when hours have been reduced without prior notice. There have been occasions where she had to ask how long would that continue so she could register with the DEASP. It is the Complainant’s view that the management was not concerned how the staff pay their bills and raise their children.
The Complainant claims that other members of staff have also been sent home when a problem arose. However, the problems would have been solved and they would have returned to work on the next day. She also claims that there have been cases when staff did not appear at work for a day or a few days, without even ringing and after that they were taken back.
The Complainant claims that two weeks later she went to return her uniforms and JW informed her that he was advised by a superior to let her go.
The Complainant submits that the situation and the stress at work led to many health problems. She had suffered from a high blood pressure, heart problems and anxiety as well as nerves inflammation and carpal tunnel syndrome, which she claims were developed suddenly as a result of stress and physical breakdown. She is continuing her consultation with her doctor.
The Complainant listed a number of matters which she felt the management allegedly chose to neglect. These, however do not relate to the herein complaint.
The Complainant submits that she secured a new employment on 29th April 2019 with a higher salary. However, she resigned her position due to ill health. She travelled abroad to see her medical advisers on 16th June 2019. As of 21st June 2019, she is in receipt of illness benefit and is not available for work.
Findings and Conclusions:
It appears to me there are a number of aspects that I must consider in coming to a decision on this case. Firstly, I must determine whether there was a dismissal or not, and secondly, should I find that there was a dismissal, was this unfair in the context of Section 6 the Unfair Dismissals Act 1977.
The fact of the dismissal was very much in dispute between the parties in the present case.
For a claim to be properly brought under Section 8 of the Unfair Dismissals Act 1977, an employee has to have been ‘dismissed’ on a particular date within the meaning of Section 1 of the Act as follows:
“dismissal”, in relation to an employee, means—
(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,
(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or
(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;”
Section 6 of the Unfair Dismissals Act, 1977 provides:
“(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) the conduct of the employee
(c) the redundancy of the employee, and
(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.
(6) In determining for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal.
The Complainant was an employee of the Respondent for over two and a half years. The parties confirmed that the Complainant worked average of 19 hours weekly and her weekly wage was €193.70.
From the evidence adduced, it would appear that there were no major issues until the day in question when the Complainant and her work colleague had a disagreement. The consequence of the incident of 6th April 2019 is that the Complainant has not returned to her employment with the Respondent following that day and there was a breakdown in communication.
The Complainant submitted that she assumed that she was sent home when, following an incident with a work colleague, the Assistant Manager told her “thank you very much”. Based on the tone of his voice she was of the opinion that she was dismissed. She sent a text message to her Manager, JW and communicated that opinion to him (I was sent home today) and noted that she would send an email to request her P45. JW undertook to contact the Complainant in that regard when he is back to work. The Complainant said that she thought that JW would resolve the matter and she would return to work. The Complainant’s evidence is that subsequently there were no hours of work allocated to her on the roster going into the future. She also said that no one from the Respondent made contact with her to explain the matter. As a result, she requested her P45.
The Respondent’s position is that the Complainant was never dismissed from her position. The Respondent’s understanding was that the Complainant walked out as she no longer wished to work for the Respondent. I note that the Respondent informed the DEASP of same on 25th April 2019 when stating: “employee handed in her notice & no longer wishes for shift in the hotel”. The Complainant has never raised a grievance and did not inform HR of the circumstances of her departure. The Respondent argued that the hours are available to her should she consider returning to work when she is medically fit to do so.
In reaching my decision, I am guided by “Redmond on Dismissal Law” (Third Edition) [22.13] page 493 which states as follows:
“In general a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt that dismissal was intended or it may reasonably be inferred as having been intended.”
Ideally, the Respondent in the herein case should have either spoken to the Complainant about her future after the incident of 6th April 2019 or, at the very least, should have phoned her, particularly after the Manager, JW undertook to do so. Regrettably, the Respondent did not see fit to embark on either course of action. In the absence of “clear and unequivocal” information from the Respondent, I am of the view that the Complainant should either have gone to work or phoned the Respondent with a view to engaging in a meaningful discussion with the Respondent in an effort to clarify the matter with regard to her employment status. She did not do so. Either option would have enabled the parties to engage in meaningful discussion and would have clarified for the Complainant her employment status with the Respondent.
I note that the Complainant clearly communicated to JW that she was sent home and, as a result she would request her P45. The Respondent undertook to contact her in that regard. There was no further communication from the Respondent and subsequently, the Complainant received a roster confirming that there were no hours of work allocated to her going forward. In the circumstance, I find that it was reasonable for the Complainant to assume that she had been dismissed.
While the decision of the Complainant to view the comment made by the Assistant Manager (“thank you very much”) as a dismissal was precipitous, the following lack of communication and the removal from the roster suggests that the Complainant was in fact dismissed.
I note that the Respondent argued that the Complainant walked out of her job. The Complainant rejected this assertion. She did not consider herself constructively dismissed.
In Millett v Shinkwin DEE 4/2004 (reported at  E.L.R. 319), the Labour Court stated the “general rule” as follows:
“A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by a subsequent unilateral withdrawal of the resignation. Where adequate notice is given, the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract.”
In that regard, “Redmond on Dismissal Law” [22.22] p. 495 states:
“Where unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, generally it is safe to conclude the employee has resigned.”
It is my view that the Complainant did not express in unambiguous and unconditional terms her intention to resign her position. While she did not turn up for work, this was due to her understanding that she was dismissed. She communicated her view to the Respondent via text where she clearly said that she was sent home and would require P45. Her understanding of the situation was reinforced by the fact that no contact was made by the Respondent even though JW took upon himself to clarify the matter.
I find that, on balance of the probabilities, the facts in this case suggest that the Complainant was dismissed by the Respondent and the dismissal was unfair in the circumstances. However, as noted above it is my view that, in the circumstances, the Complainant was obligated to seek clarification in that regard.
I find that re-instatement is not appropriate given the breakdown in the relationship that has occurred and the Complainant’s long-term illness. Accordingly, I find that compensation is the more appropriate remedy.
The Complainant did not adduce any evidence of her attempts to mitigate her loss. She confirmed that she secured new employment from 29th April 2019 on a higher salary. She resigned her position on 6th June 2019 due to ill health. She travelled abroad to consult her medical advisers and from 21st June 2019 she has been in receipt of illness benefit from the Department of Employment Affairs and Social Protection and is not available for work.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I find this complaint under Section 8 of the Unfair Dismissals Act 1977 to be well founded.
I direct the Respondent to pay the Complainant the sum €500 as just and equitable having regard to all the circumstances.
Dated: 4th December 2019
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Unfair dismissal – dismissal in dispute