Complainant

Respondent

Parties

Szilagyi  Gabor

Darlex Risk Management Security Ltd (amended on consent at the hearing)

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00067175-001

05/11/2024

The Complainant referred his complaint under the Unfair Dismissals Act to the Workplace Relations Commission on 25 September 2024.

The Respondent was represented by the General Manager, Paul Byrne with Keith Donnellan, Operations Manager and Dave Kavanagh Operations Manager, all giving evidence on affirmation.

The Respondent’s correct legal name was amended at the outset of the hearing.

Both parties were invited to make closing submissions but declined.

The Complainant was employed as a Security Guard with the Respondent, working 35 hours per week and earning €12.70 per hour until his dismissal on 25 September 2024.

The Complainant commenced employment with another employer in October 2017, with his employment transferring to the Respondent in July 2023. He outlined his experience as an employee with the Respondent, stating in particular that he was not given an opportunity to respond to any of the complaints made against him.

On 25 September 2024, Mr Donnellan contacted him by telephone and informed him that the Respondent no longer had a job for him. The Complainant’s evidence that this amounted to unfair dismissal. It was his evidence that Mr Donnellan was not interested in hearing his version of events and instead forced him out of work.

The Complainant further stated that, due to a serious illness in his immediate family, this was a particularly difficult time for him. While he accepted that this did not excuse his behaviour, he had hoped that the Respondent would have shown understanding.

Under cross-examination, the Complainant accepted that he was moved from one site for his own safety.

Financial Loss

The Complainant stated he lost confidence in the security sector. It was his evidence that he “applied for a few jobs” and sought employment with a previous employer. However, he was unsuccessful. He suffered personal and family difficulties and illness in the months following his dismissal.

The Complainant outlined being self-employed at present earning approximately €30 a month from his business as a composed for video games.

No documentary evidence was presented by the Complainant.

The Complainant was cross examined on his mitigation of loss and in particular his failure to obtain employment since his termination of his employment. It was put to him that he could have secured alternative employment but chose not to.

The transfer of the Complainant’s employment to the Respondent in July 2023 was accepted by Mr Byrne at the outset.

Keith Donnellan

It was Mr Donnellan’s evidence that the Complainant was assigned to work on a student village site managed by the Respondent. He stated that concerns were raised in September 2024 regarding the Complainant’s behaviour, which were raised via email from the client. Following this, the management of the student village (the client) directed that the Complainant no longer be assigned to these locations. Mr Donnellan removed him from the site on 24 September 2024. He further stated that, after consulting with the client, he spoke with the Complainant on 30 September 2024.

Mr Donnellan gave evidence that he explored alternative placements but did not offer the nearest available role in Sligo, considering its distance from the Complainant. He stated that as no immediate work was available, the Complainant was advised that he could resign if he did not wish to wait for another assignment. to Mr Donnellan, the Complainant subsequently chose to resign and was provided with a letter of reference.

Under cross-examination, Mr Donnellan denied that the Complainant was required to train a successor. It was put to him that the Complainant was not given an opportunity to defend himself. In response, Mr Donnellan stated that the complaints came from the client and had to be dealt with accordingly. He added that the Respondent could not directly investigate incidents involving the residents of the student village as this was a third-party matter.

Mr Donnellan confirmed that no internal investigation or disciplinary sanction was carried out in relation to the Complainant. He said he had investigated the matter with the client but there were no records or notes of this.

Dave Kavanagh

It was the evidence of Mr Kavanagh that he received an email from the Complainant on 1 October 2024 addressed to payroll, in which the Complainant stated his intention to resign but sought to avail of his annual leave entitlement beforehand. Mr Kavanagh stated that he replied to confirm the Complainant would be paid for accrued leave “if and when he sent a letter of resignation,” which was subsequently received on 10 October 2024.

Mr Kavanagh was asked whether the Complainant had been paid between 30 September 2024 and 24 October 2024, to which he replied that he had not. When asked why payment of accrued annual leave of 2.56 days was made conditional upon receipt of a resignation letter, Mr Kavanagh stated that any outstanding leave would ordinarily be processed in the final payslip, which he believed issued in mid-October 2024.

Date of Dismissal

The Respondent raised the issue that the Complainant referred the complaint to the Workplace Relations Commission on 5 November 2024, prior to his date of dismissal.

Section 1 of the Act defines “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 1 also defines “date of dismissal” as:-

“(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973,

(c) where a contract of employment for a fixed term expires 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), there is a cesser of the purpose, the date of the expiry or cesser;”

The EAT inNeeson v John O’Rourke & Sean O'Rourke Chartered Accountants UD2049/2011considered this question in light of the amendment to Section 8 (2) by the Workplace Relations Act 2015:

“(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) the Director General—

(a)    within the period of 6 months beginning on the date of the relevant dismissal”

Having considered the facts of this complaint, I note that the Complainant was placed on unpaid suspension from work on 24 September 2024 and was advised by Mr Donnellan on that date, and again on 30 September 2024 following discussions with the client, that he should resign. On 1 October 2024 the Complainant submitted a request for annual leave, indicating his intention to resign. It appears that this leave was paid in or around mid-October 2024.

On 10 October 2024, the Complainant sent a letter of resignation by email. The attached letter was post-dated to 10 November 2024, providing two weeks’ notice and specifying a termination date of 24 November 2024. The Complaint Form was referred to the Workplace Relations Commission on 5 November 2024, while the Complainant remained an employee of the Respondent. It is further noted that no payments were made to the Complainant between 24 September and 24 November 2024 other than accrued annual leave, and this was not disputed in evidence.

The issue is whether I have jurisdiction to hear this complaint where the referral was made while the Complainant was still employed. While the Complainant was incorrectly advised to resign on 24 and 30 September 2024, he nevertheless submitted a resignation letter, post-dating his termination to 24 November 2024. In the interim, on 5 November 2024, the complaint was lodged with the Workplace Relations Commission.

In these circumstances, I find that I have no jurisdiction in this matter.

For the reasons set out above, I find I have no jurisdiction in this complaint.

Unfair dismissal – date of dismissal