ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00056036

Parties:

Complaint:

Date of Adjudication Hearing:  25/02/2026

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, and/or 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.

Background:

The Complainant contends that he was unfairly dismissed on 30/11/2024.  He submitted his complaint on 19/12/2024 and resigned from his employment on 18/01/2025.

Summary of Complainant’s Case:

The Complainant stated that he commenced work with the Respondent in August 2023 and signed a Contract of 48 hours a week (Night Shifts). He stated that for the first couple of months they were giving him proper hours and then in December 2023 they removed his whole December roster and brought a new employee on Night Security.

He was changed to morning shifts which did not suit him as it meant he could not take his children to school and had to send them to school in a taxi.  

In May Year 2024 the Respondent gave him work in another Centre. He requested to be given 48 hrs one week and another Security officer another week 48 hrs for balance, not just one person doing continuously 48 hours.   He was doing just 36 hours a week that he contended is unfair. But they refused this and never gave him 48 hours in a whole year . The new Centre was one hour drive from his home (2 hours each day) and cost 80 euro for petrol for his car each week.  He contended that he was unfairly dismissed by not having work in December 2024 and he eventually resigned on 18 January 2025 as he had to find another job.

Summary of Respondent’s Case:

The Respondent did not dismiss the Complainant.  He submitted a letter of resignation on 13 January 2025 to take effect from 18 January 2025.  It is noted that he sent a complaint that he was unfairly dismissed to the WRC on 19 December 2024.

The Complainant’s employment was transferred to the Respondent under the Transfer of Undertakings Regulations (TUPE).  Despite best efforts, no employment contract was ever received/transferred with him.    

He was removed from the site in which he was working on 21 November 2024 following a complaint from a resident and due to the fact that he was not doing fire drills for which he had received training.

Following an investigation he was assigned to another site on 30/11/2024, which he refused.  His manager could not make contact with him so no verbal or other warnings were issued as he was not contactable.  The original site to which he was assigned closed and all staff had to be reassigned.

It is submitted that the Complainant resigned and was not dismissed.  If he is claiming constructive dismissal, there is an onus on him to prove that his resignation was not voluntary and was given in the circumstances where the employer’s behaviour was intolerable and breached the relationship of trust and confidence.  Further, if the Complainant is contending that the relationship of trust and confidence was broken by the employer not giving him shifts in December he did not utilise the grievance procedure to submit his grievance to the Respondent.  He was emailed by the Roster Team on 5 December 2024 to come in on 6 December 2024 and he did not turn up for his shift on 6 December 2024.

On receipt of the complaint form from the WRC on 13 January 2025, the HR & Legal Manager noted that the Complainant  was actually rostered and he contacted the Complainant to try and resolve the issues.  The Complainant refused his offer and said he was going to another job.

Case law was submitted in support of the Respondent’s position. 

Findings and Conclusions:

The Complainant in his complaint form states that he was unfairly dismissed on 30/11/2024.  However, he was still in the employment up to 18 January 2025. 

The Respondent made the point of ‘premature application’ in its submission.

I address the matter of the timing of the complaint briefly by reference to the High Court Judgement in Brady -v- Employment Appeals Tribunal (2015) ELR 1where Mr Justice Barrett held that (1) prescribed time limits are normally intended to “thwart the tardy, not punish the prompt”, (2) there is a longstanding equitable principle that “Equity aids the vigilant, not the indolent” and (3) just because a person (EAT) was first given notice before the commencement of the statutory period, it does not mean that it did not have notice during the period and “Moreover, the court considers that in reaching this conclusion no violence is done to the language of the Act.  Section 8(2) requires that notice be given within the period of six months from the date of dismissal.  It appears that in the circumstances of this case, giving notice to the Tribunal on one date such that it has notice on another date, is within the scope of the legislation.”  Likewise, in this case, I find that it would be wholly unfair to dismiss the Complainant’s complaint of Unfair Dismissal for being premature.

In relation to the substantive issue, the Complainant’s grievances include that he was not properly rostered for work in December 2024.   At the heart of his grievance is that he stated that he was contracted to work 48 hours a week and he had a number of grievances about not being rostered for 48 hours and being moved to a site which was a long distance from his home.

There are a number of elements to this complaint.  Was the Complainant unfairly dismissed without warning or disciplinary procedures?   Or in the alternative, did the Complainant leave his employment due to the unreasonable behaviour of the Respondent?

In respect to the first question:

I note the Respondent effectively removed him from site in or around end of November 2024 on foot of a complaint provided to it by the Client / Contractor.

I note no evidence of a disciplinary procedure invoked by the Respondent.  I do not accept that the Respondent could not make contact with him.  The postal address could have been used to call him in for an investigation and /or disciplinary meeting.

There appears to have been no contact from the respondent until the Roster Team emailed him to report for work on 6 December 2024.  The file states he refused that shift.

I note that the Respondent did not invoke the disciplinary procedures which they were entitled to do given (a) there was a complaint made about the Complainant and (b) he did not turn up for work on 6 December 2024.  However, the Respondent did not dismiss the Complainant and he was rostered to work shifts on 6 December 2024 and in January 2025.

In relation to the second question - the alternative, if the Complainant is contending that he was constructively dismissed as the Respondent failed to provide him with a 48 hour weekly work, and no work in December 2024, I find the following:

The definition of constructive dismissal contained in the Act is:

“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”

The Complainant refused to work the 6 December 2024 shift.

He worked some shifts in January 2025.

On receipt of the complaint form from the WRC on 13 January 2025, the HR & Legal Manager noted that the Complainant  was actually rostered and he contacted the Complainant to try and resolve the issues.  The Complainant refused his offer and said he was going to another job.

This is a critical element of this case.  If the Complainant resigned his employment because of the unreasonable behaviour of the Respondent, the onus is on him to prove that the behaviour of the Respondent was such that it would have been reasonable for him to leave his employment.

In this case, I find no such evidence especially as the Respondent made an effort to resolve the Complainant’s grievance and he refused saying he was going to another job.

I find the complaint to be not well founded. 

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

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.

Based on the findings and reasons above I have decided that the complaint is not well founded.

Dated:   20-04-26

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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