EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE claimant UD685/2012
Against
EMPLOYER respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms F. Crawford B.L.
Members: Mr. L. Tobin
Mr. J. Dorney
heard this claim at Dublin on 30th August 2013
Representation:
____________
Claimant(s):
Respondent(s):
The determination of the Tribunal was as follows:-
Dismissal was in dispute in this case
Claimant’s Case
The claimant told the Tribunal that he commenced employment with the respondent in 2008. He was promoted to supervisor in November 2010. He was responsible for packaging goods and managing staff. Morning meetings took place at 9a.m. and he did not get proper breaks. He did not get a full break at lunch time which was supposed to be three quarters of an hour and he usually had a quick smoke. Occasionally delivery staff did not arrive on time and product was not delivered in time for the customers. He requested that the product be delivered on time. On some occasions drivers left without all the products and an e mail was sent to outline the shortfall. Sometimes Mr. M helped him and he was on holidays the week of the 14th February 2012.
He had an informal discussion with the respondent about a disciplinary matter. He received a verbal written warning in January 2012. On the 9th February 2012 he was requested to attend a meeting. He was given an hour’s notice that the meeting was cancelled and he was told that he would be informed when the meeting was taking place. He was given very short notice that a meeting would take place on the 14th February 2012. He was told to bring a witness but the notice was too short. He was not informed that he could lose his job and that it was gross misconduct. He was not given a list of accusations prior to the meeting on the 14th February 2012. He was given a final written warning on the 15th February 2012 in relation to his performance. He was surprised to be informed that his actions amounted to gross misconduct.
On the 17th February 2012 he commenced work at 8a.m. and he went home after 5p.m. He received a call from his manager who asked him about the plan for that night and she wanted to know who was working. She telephoned him again in a half an hour. The plant manager then telephoned him and she asked him what plan he had in place and she told him that employees did not do overtime. The claimant had scheduled an employee Mr. P to do a shift but he had to do overtime. Overtime was not allowed in the respondent. The claimant told the plant manager that he would return to work and he did so between 9.00pm. and 9.30pm. and he was under pressure.
He thought that he would resign, he asked for a resignation form and he then obtained a piece of paper and submitted his resignation. The plant manager told him that she had no forms for him to submit his resignation and he just wanted his resignation documented. He felt under pressure and that the respondent did not want him. He was on a final written warning as well. The plant manager told him to work three weeks’ notice. The claimant told her that that he would work two weeks and she was agreeable to this. He worked the first week of his notice and he then took annual leave.
In cross examination he stated that he did not receive a letter of dismissal. He was familiar with the staff handbook. If employees came to him with problems he would take out the staff handbook. He agreed that he had received a verbal warning during his employment. He did not appeal the verbal warning as his employees made mistakes. He received a final written warning and he did not appeal this. On the 17th February 2012 he received two calls from his manager and two from the plant manager. He returned to work at 9p.m. He asked the plant manager for a resignation form and he wrote out his resignation. He was tired and upset and that was the reason he submitted his resignation. Six days after his resignation he spoke to his wife. He submitted an e mail on Friday 24th February 2012 to the HR manager whereby he outlined that he wished to withdraw his letter of resignation. He sent the e mail at lunch time.
In answer to questions from the Tribunal he stated that he did a hand over on daily basis. It was not permissible for employees to do overtime. He worked until the 24th February 2012 and he then took holidays and the respondent paid him.
He obtained alternative employment two weeks later at a lower rate of pay.
The claimant’s wife told the Tribunal that the claimant finished work around 5pm on the 17th February 2012. He received four calls during a ten to fifteen minute period. The last call was after 8pm. The claimant could not have returned to work earlier than 9p.m.
Respondent’s Case
The HR manager told the Tribunal that the respondent was involved in the agri food business and has 160 employees. The claimant was employed as a chill operator. The chill operators work on the production line. On joining the respondent employees receive induction and are given the company handbook, health and safety procedures and information on hygiene in the factory. The business has grown since 2008. The claimant was promoted to a production supervisor in 2010. The claimant was responsible for the day to day production operations and output on the production line He noticed in February 2012 that seven supervisors had not signed contracts and they were asked to sign contracts.
The employees had to respond to customer needs. At the end of January 2012 there were issues with the claimant’s performance and the claimant was given a verbal warning which he did not challenge. Up until this juncture the claimant was a good worker.
He became aware of the claimant’s resignation on the 17th February 2012 and that there was an issue regarding the claimant’s hand over. The claimant wanted to resign at 7.30pm. The claimant was asked to reflect on his resignation and the witness felt the resignation was a bit rash. He gave the claimant time to revert to him. The claimant was entitled to twenty days annual leave. If he had taken ten days annual leave in January February 2012 he would have taken more than his holiday entitlement.
He did not review the claimant’s e mail that he sent on the 24th February 2012 requesting the withdrawal of his resignation until the following Monday. He was surprised when the claimant did not try to talk to him during that week. The claimant was required to give one weeks’ notice.
In cross examination he stated that for three and a half years the claimant had a good record. He received a verbal warning for a labelling issue. The respondent had a Q.A system which indicated the shelf life of a product. The shelf life of this particular product was fourteen days and in this case it was labelled twenty eight days. The claimant was informed that his job was at risk.
The claimant was given a performance approval plan on the 8th February 2012. The respondent dealt with fresh food and it could not afford to take risks. He disagreed that the respondent bypassed all of its own procedures. He could not recall if the allegations were put to the claimant before the meeting on the 14th February 2012. The claimant was not told his job was at risk. The claimant was offered an opportunity to return to work and he did not feel that he should go after him. During that week the claimant did not make any effort to go to a senior supervisor.
In answer to questions from the Tribunal he stated that on the 17th February 2012 the claimant finished work and he did not do a proper hand over. He had to accept the claimant’s resignation. He had no contact with the claimant during that week. Statements were not provided to the claimant at the meeting and he stated that it was lax on the respondent’s behalf. The claimant received a verbal warning before his disciplinary commenced.
The plant manager told the Tribunal that she was employed with the respondent for nine years and she knew the claimant very well. The claimant reported to his manager Ms. J. She met the claimant daily. On the 17th February 2012 she called the claimant at 6p.m. A boiler was going down which meant that the double oven could not operate. The respondent had to have everything completed before 12 midnight. The claimant had not undertaken a proper hand over of work. The claimant should have ensured that everything was on target, and if not he should have reported the matter to Ms. J to ensure it would have a reduced risk for the respondent. She had notes of her conversation with the claimant. She called the claimant once on the 17th February 2012 and Ms. J contacted him regarding the plan in place for that night and he was to call her back.
Ms. J. then telephoned her and was anxious about the situation. The claimant had no plan. She told the claimant to return to work which he agreed to and he returned to the production office at 6p.m. The claimant told her that he wanted to be dismissed, he was angry and agitated and he felt that he was not wanted. She told the claimant that he would have to give his notice in writing. The claimant then went to the smoking canteen. She then spoke to the HR manager and she had to ensure that employees were getting on with the job. She met the claimant who gave her his resignation notice on a piece of paper. She told the claimant that he should not give his notice. The claimant did not contact her the following week regarding his resignation. The claimant worked the following week and then took holidays that he had pre booked.
In cross examination she stated that the respondent had five or six trolleys of gratin potato which had to go to the oven and this process took 1 to 1.45 hours. Time was running out and the claimant had not informed Ms. J that there was a problem. The boiler was serviced once a year. If the claimant had a problem he could have spoken to Ms. J or the witness. The claimant had not managed his area properly that day and if he had a proper plan in place things would be okay. She was of the opinion that the claimant felt he was under pressure. She did not tell the claimant that he should talk to the HR manager about his resignation.
Determination
The fact of a “Dismissal” is in dispute in this instance and the Respondent claims the Claimant left the employment of his own violation. The claim centers on the question of the reasonableness of the Respondent to accept the Claimants withdrawal of his letter giving notice of resignation dated the 17th February 2012 which was sent on the 24th February 2012 (being the last working day of the notice period that the Claimant was working out) but not received or read by the Respondent until the 27th February 2012 against a background of the Claimant being given a final written warning by way of letter dated the 15th February 2012.
The Tribunal has considered the evidence tendered, the submissions made and the case law provided. The Tribunal has further considered the context of the notice of resignation given and the subsequent withdrawal of same. The Tribunal concludes that the notice of resignation was tainted by reason of the circumstances that existed at the time and in particular the final written warning as had been given in the recent past. The Tribunal also accepts the Claimant had withdrawn his notice of resignation during the currency of his employment albeit that the email went into spam and was not read until the next working day.
The Tribunal takes into account the Respondents’’ HR Managers assertion that the Claimant did not come to discuss the termination of the employment with him in the week from the tendering of the notice of the termination and the final working day and the only documentation during this week was the letter of the 23rd February 2012 acknowledging receipt of the notice of resignation and detailing both holiday and pay entitlements.
The Tribunal concludes that the failure of the Respondent to accept the withdrawal of the notice of resignation is unreasonable in the context of the situation of the Claimant and in particular the existence of the final written warning. It may have been the situation where verbal dialogue during the last week could have saved any misunderstanding, but it had been indicated by the HR Manager that the Claimant had made no effort to communicate with HR during the week from the tendering of the notice of the resignation and the final working day.
The Tribunal is of the view that the Respondent should have considered the request of the Claimant to withdraw his notice of resignation particularly given the reasons set out by the Claimant and the fact the letter was sent during the currency of the employment.
Therefore, the Tribunal find that the claimant was unfairly dismissed. Taking all matters into account, the Tribunal awards the Claimant compensation of €3,000.00 under the Unfair Dismissals Acts, 1977to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)