ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000390

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 18/02/2016

Workplace Relations Commission Adjudication Officer: Ray Flaherty

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The Complainant's representative submitted the following in support of his claim that he was unfairly dismissed:

1. The Complainant was not notified that his employment was terminated prior to 5 June 2015. However, it was contended that the employer behaved internally as if it had been terminated without having informed the Complainant.

2. While accepting that the Respondent may have had various internal emails and phone calls in relation to the Complainant's employment status, nothing had been clearly communicated to him (the Complainant). It was contended on the Complainant's behalf that if the situation in relation to his employment status had been communicated to him, he would have had sufficient notice that his leave was no longer authorised. It was further contended that as he was not given clear communication he was unaware that the consent to his leave had been withdrawn and that his employment was in danger.

3. It was contended on the Complainant's behalf that the Respondent had all times led him to believe his leave was authorised and that the only matter to be resolved was to agree a final return date. It was contended that this was a reasonable belief on the Complainant's behalf because he had been previously allowed leave on the death of his father. It was further contended that, in agreeing a final return date, the Respondent should have given the Complainant reasonable time to organise a flight back to Ireland. It was submitted that a weekend was not sufficient notice in this regard.

4. It was submitted on behalf of the Complainant that, he had on 28 May 2015, which was prior to the termination of his contract, given notice of his return and had volunteered to book flights. However, it is contended on his behalf, that he was prevented from doing so by the Respondent, who waited until 5 June 2015 and then only gave the Complainant a weekend to organise flights.

5. It was contended that the Complainant was not notified of his right to appeal the termination of his contract. It was further contended that this was a serious breach of his constitutional right to a fair hearing and breach by the Respondents of their own disciplinary procedures.

Respondent’s Submission and Presentation:

In submissions on behalf of the Respondent, it was claimed that they had been both fair and reasonable with the Complainant at all times during his employment. Between July 2012 and September 2013, the Respondent provided the Complainant with more than six months leave, despite the operational difficulties it posed for the Respondent.

The Respondent contended that the Complainant left his place of work in December 2014, without notice, knowing that he would not be granted any further leave as such a request had been denied some 12 weeks earlier. The Respondent submitted that Complainant's sudden and lengthy absence caused significant difficulties for the Respondent as he (the Complainant) had committed to work additional hours over the Christmas period. The Respondent submitted that it was extremely difficult to find another member of staff to cover the hours at such short notice, given the time of year.

The Respondent submitted that the Complainant undertook to return to work on 5 January 2015 and 1 April 2015. However, he failed to do so on both occasions. The Respondent further contended that, despite being requested, the Complainant failed to maintain contact with the Respondent from February 2015 to May 2015. The Respondent contended that during this period the Complainant was elusive, uncontactable and remained on unauthorised leave. The Respondent contended that it was they who contacted the Complainant in order to determine his return to work date.

The Respondent contended that they were more than reasonable when they contacted the Complainant on 1 May 2015 and requested that he confirm a return to work date. The Respondent submitted that this was one month after the Complainant had originally informed the Respondent that he would return to work on 1 April 2015.

The Respondent submitted that the Complainant was given a week to provide a return to work date. However, the Respondent claimed that this turned into two weeks as the Complainant did not answer their calls. The Respondent further submitted that when contact was eventually made with the Complainant, he advised that he could not provide a return to work date and that he would need a further 3 to 4 months.

The Respondent submitted that at this stage the Complainant was advised that failure to return to work or to provide a reasonable return to work date would be viewed as him having abandoned his position. The Respondent further submitted that despite been advised in this regard, the Complainant did not offer an alternative return to work date. The Respondent submitted that this position was confirmed in writing to the Complainant after several unsuccessful attempts to contact him.

The Respondent stated in evidence that the Complainant eventually returned to Ireland in July 2015, some three months after he originally told the Respondent he would return and nearly 2 months after he had been advised that his contract was terminated. The Respondent submitted that the Complainant's role has been filled at this stage and they were no longer in a position to allow him to return to work.

The Respondent submitted that no dismissal took place in this case. They claimed that the Complainant abandoned his position by failing to return to work on a planned date order to provide a foreseeable return to work date. The Respondent further submitted that the Complainant was not in a position to fulfil the duties of his contract and, as such, it was the Complainant's unreasonable actions which resulted in the termination of his contract.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 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.

Issues for Decision:

The issue for decision was whether or not the termination of the Complainant’s contract of employment by the Respondent constituted an unfair dismissal.

Legislation involved and requirements of legislation:

The Unfair Dismissals Act, 1977

Decision:

Having carefully considered the evidence adduced at the Hearing, I find that the following are the key dates and events in relation to this case:

• 18 December 2014: the Complainant left his workplace and advised the Respondent, by text from the airport, that he was going to Lanzarote to visit his mother who had become ill and that he would be returning on 5 January 2015.

• 7 and 9 January 2015: the Complainant sent a text to the Respondent advising that his mother was still ill and that he was taking her back to the Philippines.

• 12 January 2015: the Complainant sent a text to the Respondent advising that his mother had died.

• 13 January 2015: the Respondent sent a text to the Complainant advising that they had been trying to contact him without success and requested him to return the call.

• 27 January 2015: the Respondent received a text from the Complainant that he would not be returning to work until 1 April 2015.

• 1 May 2015: the Respondent tried four different mobile phone numbers before eventually establishing contact with the Complainant. During this phone call, the Complainant advised the Respondent that he did not know when he was coming back to work and that he could not provide a return to work date.

At this point the Respondent advised the Complainant that his position could not be held open indefinitely. This phone conversation concluded with the Respondent making arrangements to contact the Complainant on 6 May 2015, on which date he (the Complainant) was required to be in a position to advise a return to work date and to confirm that flights had been booked.

• 6 May 2015: the Respondent tried to contact the Complainant as arranged during phone call on 1 May 2015. However, the Respondent received no reply from the number which the Complainant had provided to them on 1 May 2015.

• 14 May 2015: the Respondent telephoned the Complainant again and managed to establish contact on this occasion. The Complainant was not in a position to provide a return to work date and informed the Respondent that he would require a further 3 to 4 months unpaid leave.

In response to this request the Respondent advised that they were not in a position to leave his role open indefinitely and that they could not facilitate him with any further unpaid leave.

The Respondent advised the Complainant that by failing to return to work or to provide a foreseeable return to work date they considered him to have abandoned his job. The Respondent requested the Complainant to provide an email address to which correspondence confirming this position could be sent.

• 5 June 2015: the Respondent communicated with the Complainant via email and confirmed the details are set out in the telephone conversation of 14 May 2015.

• 2 July 2015: the Complainant sent a text to his shift leader advising that he was at Shannon Airport and was seeking a meeting with the Respondent.

• 6 July 2015: the Respondent's HR Manager contacted the Complainant and arranged a meeting for the following day.

• 7 July 2015: representatives from the Respondent's HR Department met with the Complainant and reaffirmed the position, as set out in the telephone conversation of 14 May 2015 and the follow-up email of 5 June 2015, that, by his failure to return to work or to provide a return to work date following an absence of six months, the Complainant had abandoned his employment. The evidence of the Respondent is that the Complainant accepted that he had been at fault in abandoning his role.

Based on the findings, as set out above, I find that:

1. The Complainant absented himself from his place of work on 18 December 2014 without proper advice to his employer and/or without having this leave authorised.

2. The Complainant's leave was never authorised by the Respondent. In effect, the Complainant took unauthorised leave and left the Respondent with no option but to tolerate his absence. However, I am satisfied that this tolerance cannot, in any way, be construed as "authorisation" of the leave. Consequently, I do not accept the Complainant's contention that the Respondent led him to believe his leave was authorised.

3. The Complainant made little or no effort to keep in contact with the Respondent during his absence. On the contrary, it was the Respondent who engaged in the vast majority the attempts to establish and/or maintain contact and, in this regard, encountered significant difficulties.

4. The Respondent made it clear to the Complainant during the telephone conversation of 1 May 2015 that they required him to have an agreed return to work date and confirmation of the flight booking when they next communicated, as agreed, on 6 May. However, when the Respondent eventually managed to establish contact with the Complainant on 14 May 2015, he was not in a position to provide a return to work date but, instead, requested another 3/4 months of leave.

5. The telephone conversation between the Respondent in the Complainant which took place on 14 May 2015 and the subsequent follow-up email of 5 June 2015 contained a clear and unambiguous statement of the Respondent's position in relation to the Complainant's contract of employment.

Taking all the above into consideration, I am satisfied that the Respondent acted more than reasonably in holding the Complainant's position open during six months of absence. I am further satisfied that the Respondent made more than what might be considered reasonable effort in trying to establish and maintain contact with the Complainant during his absence and that this effort was not reciprocated by the Complainant.

Consequently, I find that the Respondent's termination of the Complainant's contract of employment was, in the circumstances, fair and reasonable. Therefore, the Complainant's complaint of unfair dismissal is rejected.

Dated:   30/3/2016