ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001740

Complaint for Resolution:

Date of Adjudication Hearing: 17/10/2016

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

Following referral to me by the Director General, I inquired into this complaint of unfair dismissal pursuant to Section 8 of the Unfair Dismissals Act 1977, received by the Workplace Relations Commission (hereinafter ‘WRC’) on 1^st February 2016 and gave the Parties an opportunity to be heard and to present any relevant evidence. I proceeded to hearing on 17^th October 2016. The Complainant confirmed that he was no longer represented by his Trade Union Representative in relation to this matter and represented himself. The Respondent was represented by an Employment Consultant, and his former Manager gave evidence on its behalf. I outlined the legal requirements for a claim of unfair dismissal in lay terms. I also indicated that I would be relying upon the relevant statutory provisions and case law on the area. All oral evidence, written submissions and supporting documentation presented by both Parties have been taken into consideration when coming to this decision.

Background to Claim:

The Respondent is a security services company providing security services to various outlets around Ireland on a contractual basis. The Complainant was employed by the Respondent as a full-time Security Officer at a shopping centre in City A working night-time hours. He commenced his employment on 7^th June 2008 which was uneventful until June 2013, when he went on certified sick leave owing to a heart condition. Whilst off work, he moved from where he was living in City A to a village in County B (approximately 180km away). During his sick leave, the Complainant was on Illness Benefit. Upon confirming that he had been declared fit to work on 13^th May 2015, he requested the Respondent to find him work in his new location within the County B area as he was unavailable to return to his position in City A. The Complainant rejected the Respondent’s offers of alternative part-time work within the County B area as they did not meet his requirements. On 27^th November 2015, he requested his P45 and a P45 dated 7^th February 2014 issued. The Complainant submitted this complaint to the WRC on 1^st February 2016 and whilst there was some further communication between the Parties regarding his request for alternative employment, nothing could be mutually agreed. The Complainant contends that he was unfairly dismissed and seeks compensation as he has since commenced work with another employer. The Respondent contends that there was no dismissal and in fact his full-time position in City A is still open to him on the original contractual terms. There is no issue that the Complainant had the requisite 12 months service to bring a claim of unfair dismissal.

Preliminary Issue – ‘Fact of Dismissal’ in Dispute

Before examining the fairness or unfairness of an alleged dismissal, I must firstly be satisfied that the Complainant has been ‘dismissed’ by the Respondent as defined by Section 1 of the Unfair Dismissals Act 1977. In this respect, I took the following evidence and submissions from the Parties:

Complainant’s Position & Presentation

The Complainant gave evidence confirming that he had been employed by the Respondent since 7^th June 2008, in a full-time position as a Security Officer, working night-time hours and had been assigned to a shopping centre in City A for that period. He was on sick leave on Illness Benefit from June 2013 until he was declared fit to return to work from 13^th May 2015 after undergoing surgery. During his sick leave, he moved from where he lived in City A to County B (approximately 180km away) with his family. He explained that because his rental accommodation in City A had burnt down and the cost of living was too high whilst on Illness Benefit, he had moved to County B for practical and economic reasons. As a large employer, he had expected the Respondent to accommodate him with either a full-time day-time position within the County B area or alternatively regular part-time hours that were compatible with his social welfare entitlements in the circumstances but it had refused to do so.

The Complainant confirmed that upon being declared fit to return to work, he had contacted the Respondent in writing seeking alternative employment within the County B area. A welfare meeting was held with his Manager, Mr AB on 13^th May 2015 where they had discussed the possibility of such a transfer. However, he was unhappy with the part-time hours subsequently offered to him under cover of letter from Mr AB dated 25^th May 2015 and containing an amendment to the terms and conditions of employment for him to sign. He stated in his complaint form: “I did not agree to change the contract because it was action against me. I sent back letter with my disagreement.” He confirmed that he had also rejected two further offers of part-time hours from the Respondent as they were not guaranteed, required travel and he had not received appropriate induction training or a uniform.

The Complainant further confirmed that he had not received a subsequent written invitation to meet with Mr AB until 16^th June 2015, some six days after the proposed meeting. On the same date, he sent a text to Mr AB which he referred to as a request to “…to stop all disciplinary action linked to my absent on meeting” in his submission. He expected further communication from the Respondent but he received no response despite emailing HR on 13^th October 2015 seeking confirmation of his employment status. In that email he stated: “I would like to add to my record that, I’m still looking for full-time security position (in the County B area).” Having received no reply, he rang HR to enquire about his employment status on 27^th November 2015 and was informed that his employment with the Respondent had finished on 7^th February 2014. He then asked for his P45 which he received a few days later and in his complaint states: “I was very surprised why I was informed until 22 months after the fact.” He sent an email to his Union Representative dated 2^nd December 2015 as reproduced in his complaint form (which was forwarded to the Respondent’s HR), enquiring: “1. Why I got my P45 from 07/02/2014 on 27/11/2015 – many months later and on my request?, 2. Why company didn’t inform me about P45 was issued?, 3. Why the company was holding my belief that I am an employee after inform Revenue about stop my work on 07/02/2014?”, 4. Why was stop my employment?, 5. Why P45 was issued without my knowledge?, 6. Why company didn’t provide correct process to inform me about P45 and finished work relation?, 7. Could you explain me what happened with my job in (the Respondent)?, 8. Why my finish employment was taken when I was on Sick Leave and sent regularly my doctor’s certificate without my knowledge about this?” He also queried why the Respondent had confirmed his employment on an application for Rent Supplement in December 2014 if it had already ended. He construed the P45 dated some 22 months previously as evidence that the Respondent had no intention of offering him a return to work. Before submitting this complaint, the Complainant had followed up with his Union Representative by phone and email in late December and early 2016 querying his employment status. Overall, he complains that the Respondent failed to act reasonably by not providing him with alternative employment on the terms sought in his new location. As he had since commenced employment with another company, he sought compensation as a remedy.

When questioned, the Complainant was unclear as to the date on which he considered himself dismissed by the Respondent. In his complaint form, he stated that his date of dismissal was 7^th February 2014 being the date on his P45 (which was clearly outside of the 6 month time limit including any possible extension of time to 12 months for reasonable cause). At the hearing, he contended that his date of dismissal was 27^th November 2015, being the date that he had rung HR to enquire about his employment status and had requested his P45. From his evidence and submissions, he appeared to consider himself constructively dismissed as the Respondent would not offer him work on the terms sought within the area of his new location. In particular, he stated: “There is no doubt that the dismissal from work occurred. The company does not want to offer me return to work, although I very have enriched my qualifications.” and “I never leave work. I want only to require them in terms of hours and location. The company did not effectively show its willingness to try and create employment for me. Lack of contact, no answer on my willing to work, gave physically unacceptable work.” He could not give any health related reason as to why he should have been accommodated in the new location by the Respondent, confirming that the move had been for practical and economic reasons.

Respondent’s Position & Presentation

The Respondent contends that no dismissal has taken place as the Complainant’s position at the shopping centre in City A remains open to him on the same terms and conditions as existed on the date that he went on sick leave. His Manager, Mr AB gave evidence confirming that as at the date of the hearing, the position remained open to him on either night-time or day-time hours. Further to the Complainant contacting the Respondent confirming his fitness to return to work and requesting a transfer to County B, he had held a welfare meeting with him on 13^th May 2015. At the meeting, the Complainant confirmed his move to County B and repeated his request for a day-time position in that area. He explained that on his doctor’s advice, it was preferable that he did not work night shifts and also that the job was not too stressful. Mr AB explained to him that whilst full-time day-time hours may be available City A, there was not the same volume of work within the area of his new location and therefore it was only possible to offer him part-time day-time hours. By letter dated 25^th May 2015, Mr AB wrote to the Complainant noting his request for day-time hours on his doctor’s advice and confirming that day-time hours were available in his existing position in City A. In relation to his request for a transfer to his new location in County B, it stated that the Respondent would always try to accommodate such requests but “…where hours cannot be found the employee would be deemed to have resigned…”. However on assessing the available shifts within the area of his new location, Mr AB could offer the Complainant part-time day-time hours (approximately 20 hours per week) in the area and enclosed an amendment to his terms and conditions of employment for signing. The Complainant returned the amended terms and conditions confirming that he did not accept the proposed changes. By letter dated 5^th June 2015, Mr AB invited the Complainant to a further meeting on 10^th June 2015 to discuss the matter but it appears that he did not receive the letter until 16^th June 2015 when he texted Mr AB requesting: “Could you stop all action until my answer (I need to get some advice) Please.” As he had indicated he wanted no action until he had obtained advice, he did not pursue the matter.

Mr AB also confirmed his understanding of what occurred on 27^th November 2015, when the Complainant rang the Respondent seeking to confirm his status. He said that he must have spoken to someone in payroll who advised that he no longer appeared to be on the payroll system and had been removed on 7^th February 2014. As the Respondent has to pay a licence fee for each active employee on the payroll system, inactive employees are removed for administrative purposes. Apparently the Complainant had then requested his P45 which was sent to him. By email dated 17^th December 2015 to HR, the Complainant’s Union Representative had forwarded his email of 2^nd December 2015 querying why a P45 dated 7^th February 2014 had issued on 27^th November 2015 on his request and seeking clarification of his employment status. HR responded to his Union Representative indicating that they would be happy to look into the matter and sought clarification of whether the Complainant: “is looking to return to work now or is he saying he is still off work sick but just wants clarification on his employment status?” HR heard nothing further from the Complainant’s Union Representative or the Complainant who did not raise any grievance in relation to this matter with the Respondent. The next time that the Respondent became aware that there was a difficulty with the Complainant was when it was notified by the WRC on 8^th February 2016 in relation to this complaint of unfair dismissal submitted on 1^st February 2016. There was a further exchange of emails between the Complainant’s Union Representative, the Complainant and Respondent’s HR. By email dated 29^th February 2016, HR contacted the Complainant’s Union Representative on foot of receipt of notice of this complaint to the WRC confirming: “From what I can see, this gentleman was out on long term sick leave, when he wished to return he specified that he only wanted to work in (County B) which his manager did not have availability in the role he was currently working. He then refused the shifts offered to him. Can you please let me know if he is wishing to return to work and I will discuss with his manager?” By email dated 11^th March 2016, the Union Representative forwarded this response onto the Complainant. On foot of same, the Complainant contacted the Respondent directly by email dated 4^th April 2016 confirming that he wished to return to work in the County B area on either a full-time basis, 38 hours fortnightly (which would be in keeping with his Social Welfare payments), not less than 19 hours weekly or not more than 3 days per week. He also provided details of further training he had received whilst on sick leave, stating: “I think that keeping a good employee is chosen the great benefit for company.” That appears to be the final communication between the Parties before this hearing.

In summary, the Respondent’s position is that the Complainant was never dismissed from his full-time position in City A which remains open to him to date. Furthermore, it had no difficulty with facilitating his return to work in City A on day-time hours when he was declared fit in May 2015 as offered to him. However, the Respondent could only offer him part-time day-time work within the area of his new location as work opportunities are limited in the area but this had been rejected. In his complaint form, the Complainant had made reference to his employment ending on 17^th February 2014, being the date on his P45 but on this had been the date of removal from the payroll system as an active employee. It was submitted a P45 is not solely an indication of termination of employment and can be issued for taxation reasons and in any event, had issued at the Complainant’s request. It was submitted that he could not reasonably have construed the issuing of this P45 as dismissing him on 17^th February 2014 or at all, given that in May/June 2015, his position was confirmed as being open to him and he had been offered part-time work in his new location. By moving to County B, he had made himself unavailable for work in City A and upon rejecting the offers of part-time work in the County B area, had ended the employment relationship at his own volition by moving to a new employer.

Reasons & Findings:

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;”

Firstly, I am satisfied that Paragraph (a) does not apply to the instant case in circumstances where there was no explicit verbal or written termination of the Complainant’s employment by the Respondent. In so finding, I am not satisfied that the issuing of the Complainant’s P45 dated 7^th February 2014 at his request on 27^th November 2015 could constitute a termination. Whilst the date on the P45 (some 22 month earlier) undoubtedly caused him to question his employment status, he could not have reasonably construed the issuing of this P45 as a termination of his employment in circumstances where (1) by his own admission he had requested his P45, (2) since early 2015 there had been ongoing communications between the Complainant and/or his Union Representative and the Respondent regarding his employment situation where return to his existing position or alternative part-time work in the County B area had been offered to him and (3) the Respondent has provided a reasonable explanation for the date on the P45, being the date that he was removed as an active employee from the payroll. In Farrell -v- Farcourt Foods Ltd UD610/1989, it was held that an employee on lay-off had not had his contract of employment terminated by the issuing of a P45 and in such circumstances the issuing of a P45 does not necessarily constitute a termination. Likewise in the instant case, I am satisfied that the issuing of the Complainant’s P45 did not constitute termination of his employment. For reasons (2) and (3), I am also satisfied that he could not have reasonably interpreted his conversation on 27^th November 2015 as constituting termination of his employment.

Secondly, Paragraph (b) refers to what is more commonly known as ‘constructive dismissal’ and perhaps best relates to the Complainant’s position that the Respondent failed to act reasonably by not providing him with alternative employment on the terms sought in his new location. Most complaints of this nature arise because the employer has unilaterally imposed a change of location of employment on the employee but the converse is the position in the instant case.

In constructive dismissal cases, the onus/burden of proof rests with the Complainant to show that s/he was justified in considering themselves dismissed and resigning/leaving their employment. Generally this requires the employee to exhaust all avenues of dispute resolution such as internal grievance procedures before leaving or resigning. Claims for constructive dismissals are generally assessed using two tests: (1) the contract test, and (2) the reasonableness test. The contract test ascertains whether the employee’s resignation arose as a consequence of a breach or repudiation of contract by the employer. The reasonableness test assesses whether the actions of the employer were so unreasonable that the employee was left with no option but to resign/leave. I will therefore examine the factual matrix presented in light of both tests to determine whether the Complainant is entitled to consider himself dismissed. In this respect and based upon the evidence and documentation submitted on behalf of bother Parties, I find the following on the balance of probabilities:

At all material times, the Complainant was employed by the Respondent as a full-time Security Officer in a shopping centre in City A working night-time hours. It is accepted by both Parties that this was his contracted position before he went on sick leave. There was no evidence of any contractual terms providing for such transfers of employment. Nor is it in issue that at all material times, the Complainant’s position in City A remained open to him on night-time hours and upon confirmation of his fitness to return to work, on day-time hours in the same role, based upon his medical advice that he should not work night-time hours. However, it appears that the Complainant held a belief that the Respondent had a legal obligation to transfer his employment from City A to the County B area on the terms sought. Absent any health or disability related reasons, there was no legal obligation upon the Respondent to provide the Complainant with alternative employment or a light work alternative and by his own admission, he had moved to County B for practical and economic reasons. Therefore his belief in this respect is misconceived. If he had remained residing in City A, there is no reason as to why he could not have undertaken his original position on the day-time hours offered. However, he was unavailable to do so because he had moved from City A to live in a new location in County B some 180km away whilst on sick leave. In those circumstances and applying the contract test, I am satisfied that there has been no repudiatory breach of the Complainant’s contract of employment such that he is entitled to accept that repudiation and consider himself dismissed. Applying the reasonableness test, I am further satisfied that the Respondent in fact went above and beyond its legal obligations in attempting to find the Complainant alternative employment within the area of his new location. Therefore, there can be absolutely no question of the Respondent’s actions being so unreasonable that he was left with no option but to leave and take up employment with another employer.

Finally, Paragraph (c) relates to the non-renewal of fixed term and specified purpose contracts and as the Complainant was not subject to either type of contract, is not relevant to the instant case.

Whilst I have sympathy with the difficult circumstances the Complainant found himself in, I am satisfied that he left his employment with the Respondent at his own volition when it could not accommodate him with a position on the terms sought within the area of his new location. For the aforesaid reasons, I am satisfied that no dismissal took place within the meaning of the Act.

Decision:

I therefore find this complaint under Section 8 of the Unfair Dismissals Act 1977 to be unfounded on the preliminary basis that no dismissal of the Complainant took place and accordingly, dismiss same.

Dated: 16^th December 2016