Complainant

Respondent

Parties

Ademola  Bakare

Eric McQuillan Site Manager

Representatives

  In person

Donna Burke Sherwin O'Riordan

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-00067184-001

06/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00067184-002

06/11/2024

The Complainant commenced his employment with the Respondent on 17th May 2023 as a Food Team Member.

This complaint was received by the Workplace Relations Commission on 6th November 2024.

As per his complaint form the Complainant contends that he has been poorly treated by the Respondent.

The first issue that really affected the complainant was the Respondent’s insistence that he remove his car from the car park. It appears that the complainant’s car was not working, and he did not have the money to have repairs carried out. During the period that it would take for the complainant to save enough to pay for these car repairs he thought it would be ok to keep the car in the car park at the respondent’s premises. The complainant contends that the respondent threatened to have the car towed away.

The second issue for the complainant relates to his dog. While the complainant was in work his neighbour who was minding the dog would arrive at the complainant’s place of work with his dog. The complainant when he was not working would, at times, visit the workplace with his dog and thought there was nothing wrong with this and points out that there was nothing in his contract of employment that stated he could not bring his dog into the workplace.

The complainant points out that he has worked for applgreen for a long time, he has given his  all to this company and has always spoken to the manager with respect and works his  hardest at all times. The Complainant has asked for a raise and never received one. The complainant feels that things are now at a point where his workplace has really affected his life from the mental point of stress and frustration. The Complainant’s college fees have been affected.

The complainant has clearly stated that he couldn’t survive on one day a week while his peers were working fulltime and getting wage increases. He feels his mental health has really been affected from the unfairness at his workplace.

CA – 00067184 – 002.

The Complainant believed that his contract was fulltime but he is only now finding out  it is not, The Complainant had  been working fulltime for the majority of his  time at applegreen.

The complainant is no longer receiving hours and has experienced a reduction in working hours from 5 days a week to 3 then 1 day per week.

The complainant finally points out that he has worked full time hours for the majority of his employment and at times has worked 7 days per week for the respondent.

Background:

·         The Complainant is advancing a claim that he was unfairly dismissed on 29th August 2024, contrary to the Unfair Dismissal Act 1977. A second complaint was lodged by the Complainant under the Protection of Employees (Part-Time Work) Act, 2001 alleging that he has been treated less favourably than a comparable full-time employee.

·         The Complainant commenced his employment with the Respondent on 17th May 2023 as a Food Team Member. The Complainant maintains that he has been unfairly dismissed from his employment. This is denied. The Complainant's employment was not terminated at any point. In fact, the Complainant remains an employee of the Respondent.

·         On 30th August 2024, the Complainant began unpaid leave which he had previously requested in order to accommodate his return to college. The unpaid leave request had been discussed with Eric McQuillan, Manager of the Ml Lusk Northbound Area station. It was agreed that the Complainant would be added to the work roster again upon his request to resume work.

·         On 5th October 2024, the Complainant sent a text message to Mr. McQuillan stating that he hadn't been placed on the roster and hadn't been given a shift "in over a month." Mr. McQuillan responded to the Complainant on 7th October to request a meeting to discuss his return to work. The Complainant responded on 8th October by text message stating "no problem, I'll be there."

·         On 5th November 2024, Mr. McQuillan sent a text message to the Complainant to ascertain whether he planned on returning to work as there had been no contact from the Complainant since 8th October. The Complainant responded the following day 6th November, confirming that he was "in college but I'll be fi'ee Friday to come down."

·         A meeting was arranged for the Complainant to attend with Mr. McQuillan at the Ml Lusk Northbound site, which took place on 8th November 2024. At the meeting, the Complainant confirmed that he was ready to resume work with the Respondent. Frank Delaney, Manager, subsequently arranged for the Complainant's return to work as he scheduled him on the roster for the following week beginning 11th November 2024.

·         The Complainant did not attend work as scheduled during the week beginning 11th November 2024, and he has not been in contact with the Respondent whatsoever since their meeting on 8th November 2024. The Respondent then received notification of the Complainant's WRC Complaint dated 6th November 2024.

·         In order to address the Complainant's absence, Mr. McQuillan sent a letter by email to the Complainant dated 20th November 2024 to schedule a meeting for 22nd November. The purpose of the meeting was outlined in the letter; to discuss the Complainant's unauthorised absence and to address his current work status.

·         The Complainant did not respond to the Respondent's letter dated 20th November 2024 in order to address his return to work, and therefore no meeting could take place on 22nd November. The Respondent's attempts at engaging with the Complainant to facilitate his return to work remained unanswered.

·         The Complainant has not been in any further contact with the Respondent since 8th November 2024 and failed to attend his shift the following week. The employment relationship has not been terminated in any capacity by the Respondent, and the Complainant is technically still an employee of the business. The Complainant has simply not shown any intention to return to work and he has not made any effort to engage for the purpose of facilitating his return.

·         The Complainant states in his complaint form that he was unfairly dismissed on 29th August 2024. However, the Respondent engaged with the Complainant since 29th August, where it was agreed that he would return to work on 8th November, albeit he failed to do so. Therefore, his claim for unfair dismissal is without merit in circumstances where he was never dismissed.

Legal Submission

·         The Complainant has refused to engage with the Respondent regarding his return to work and now claims that the Respondent unfairly dismissed him.

·         The Unfair Dismissals Act, 1977 provides that the dismissal of an employee shall be deemed to be an unfair dismissal unless the employer can show that there were fair and substantive reasons for terminating the employee's contract. However, it is the Respondent's case that the Unfair Dismissals Act, 1977 is not applicable to this matter as the Complainant's employment was not terminated by the Respondent whatsoever.

·         The Complainant maintains that he was dismissed on 29th August 2024, however there was no termination of his employment from the Respondent on this date. Instead, the Complainant took a period of unpaid leave on 30th August 2024 for the purpose of attending college, and the Respondent subsequently contacted him on 7th October 2024 regarding his return to work. The Complainant indicated his intention to resume work at his meeting with the Respondent on 8th November 2024, and therefore no dismissal occurred at all. There has been nothing more than a mere lack of engagement from the Complainant.

CA-00067184-002:

·         The second complaint refers to the Complainant having been treated less favourably than a comparable full-time employee. The Complainant states that he did not receive full-time hours prior to 8th November 2024, and that his hours were reduced from five days per week to three days, and subsequently to one day per week. It is the Respondent's position that less shifts were available at this time due to a decrease in trade levels in the business.

·         In any event, as per paragraph 6 of the Complainant's Contract of Employment, the Respondent reserves the right to change the Complainant's working hours dependent upon business or organisational needs. Therefore, the Complainant is entitled to a minimum of one shift per week in accordance with his contract of employment, which was scheduled for him. The Respondent denies the claim that he has been treated less favourably than a comparable full-time employee.

Conclusion

·         The failure and/or refusal of the Complainant to engage with the Respondent in order to facilitate his return to employment does not constitute a dismissal. The complaint under the Protection of Employees (Part-Time Work) Act, 2001 is without merit as the Complainant has not established any less favourable treatment by the Respondent to a comparable employee.

·         Therefore, both claims in the Respondent's respectful submission, are not well founded.

The complainant was issued with a comprehensive document covering his terms and conditions of employment. This document was read and signed by the complainant on 17th May 2023.

In relation to complaint reference CA – 00067184 – 001, submitted under s.8 of the Unfair Dismissals Act, 1977 I accept the argument presented by the Respondent representative that no dismissal has taken place and that technically the complainant was still an employee of the respondent.

In relation to complaint referenced CA – 00067184 – 002, submitted under s.16 of the Protection of Employees (Part-Time Work) Act, 2001, I find that the hours offered by the respondent to the complainant were within the scope of the terms and conditions of employment offered to and accepted by the Complainant.

I also note that at no time did the complainant make an attempt to utilise the respondent’s internal procedures to highlight any grievance he may have had.

I can only conclude that the complaints as submitted by the complainant are not well found.

I can only conclude that the complaints as submitted by the complainant are not well found.