ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002840

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

Date of Adjudication Hearing: 06/02/2017

Workplace Relations Commission Adjudication Officer: Emile Daly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or 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).

Attendance at Hearing:

A Delicatessen Worker v. An Employer

Complainant’s Submission and Presentation:

Evidence on behalf of the Complainant at the hearing was as follows:

1. The Respondent operates a petrol supply business and a deli/shop located in a town in the midlands

2. I started work as a deli assistant in October 2014

3. I was happy in my work

4. In mid March 2016 I had to go into hospital to get a colonoscopy procedure done, for this I took two days of annual leave. I went into hospital on 15 March and was discharged on 16March

5. When in hospital I caught a bug and could not return to work as planned.

6. I took Thursday 17 and Fri 18 March off due to this bug.

7. I returned to work on 20 March which was a Sunday

8. I was not myself on that day and I became upset while working in the shop/deli. I accept that a customer saw me upset.

9. My co-workers on duty that day were Mc and Ma. They offered to cover for my shift but I told them that I was fine and I worked my shift as normal until 7.30pm

10. I worked the following two days Monday and Tuesday and went into work as usual on Wednesday 24 March.

11. At approximately 12.30 pm I was working at the deli counter when I was approached by MM, the manager of the deli. I was told to go into the office when I was ready.

12. I finished with the customer that I was serving and I went into the office

13. In the office was my boss, NM, MM and me.

14. NM told me that a customer had seen me upset on the shop floor on the previous Sunday and that another employee, Ma corroborated this fact.

15. He asked me “what was going on?”

16. I said that I was not feeling well and I apologised.

17. NM said that I clearly had issues that were beyond what they as an employer were equipped to deal with.

18. He said that he was not happy with my work and my attitude and that it was best if I left my job.

19. I got upset but, after collecting myself, I went out to re join my shift.

20. After returning to my work station at about 2.45pm the manger, MM told me that I would be finishing up the next Thursday, 31 March.

21. I said that’s fine.

22. I finished up my work that day and I did my shifts up to 31 March, when I left the employment

23. Before I finished work I asked NM for a letter to allow me make an application to the Department of Social Welfare, which he furnished me with. The letter states that “my contract had come to an end.” It does not state that I left voluntarily.

24. I deny that I had any intention to leave work voluntarily.

25. I accept that I was struggling in February and that I texted my friend, G, a co worker, that I was considering going on a 3 day week because of this.

26. I accept that I texted, as a joke, that I was going to hand in my notice in a text to G but I clarified in the immediately following text that it was a joke and that I needed the job to pay the bills.

27. The conversation in the office seemed more that it was not acceptable to be upset in front of a customer, rather than concern for me.

28. I am sure that they said they were not happy with my work and that they gave me a week’s notice

29. After the meeting I told G that I was finishing work on the following Thursday. I accept that I did not tell G that I had been fired.

Respondent’s Submission and Presentation:

1. The Complainant was not dismissed

2. She voluntarily resigned her position during the meeting on 24 March 2016.

3. A preliminary ruling is sought on whether there is jurisdiction to hear the claim in light of the Respondent’s application that a dismissal did not occur, as a matter of fact.

Mc gave the following evidence

1. I was working alongside the Complainant and Ma, on Sunday 20 March when I noticed that the Complainant was visibly upset on the shop floor

2. I tried to convince her to go home and that I would cover for her but she refused

3. Ma gave the Complainant her telephone number

4. I went home but felt bad for her as she was so upset.

5. NM spoke to me the following week and asked had I seen the Complainant upset the previous Sunday. I said that I had.

6. I don’t know anything about what happened or what was said, at the meeting on 24 March as I wasn’t there.

7. The following week I found out that the Complainant was finishing up her job

    

Ma gave the following evidence:

1. I was working alongside the Complainant and Mc, on Sunday 20 March when I noticed that the Complainant was visibly upset on the shop floor

2. I tried to convince her to go home and that I would cover for her but she refused

3. I gave the Complainant her telephone number but she didn’t ring me

4. I didn’t contact management because she said that she would be okay

G gave the following evidence

1. I was and am a friend of the Complainant

2. I have been working for the Respondent for around three and a half years.

3. The Complainant was not well for a while and I used to go for walks with her

4. She was particularly unwell in February 2016, a month or so before this all came up.

5. At that time she discussed with me the possibility of going on a three day week.

6. She asked would I talk to the manager on her behalf but I told her that she should talk to the manager herself about that

7. She discussed with me her personal problems and I tried to help her.

8. She sent me a text saying that she was handing in her notice.

9. I did not receive a follow up text saying that she was only joking. All I got was the text about handing in her notice, which did not surprise me at the time, because she was very low at that time.

10. I was not on the shop/deli premises until after the meeting on 24 March. Later that day the Complainant told me that she had handed in her notice and that she was finishing up the following Thursday.

11. The reason that I showed NM the texts, received from the Complainant, was I couldn’t believe it when I heard that she was making a claim. I thought that this was unfair because I knew that she had considered going on a reduced working week the previous month, I knew that her form was low and she told me on the 24 March that she was the one who had handed in her notice.

12. I have nothing but praise for the Complainant, in both her work and in every way but I don’t believe that this is right, what she is doing against NM and I don’t believe that it is good for her.

13. On her last day in work I was very concerned for the Complainant and made numerous attempts to contact her by phone, but she did not pick up my calls.

14. NM has been a very good employer and has helped me with a number of issues. I owe him for that, but I would not cover for him unless it were true. What I have said is the truth.

15. I was not surprised when the Complainant told me that she had handed in her notice. I thought that it would be good for her to recover from her illness.

NM gave the following evidence:

1. A customer approached me on Wednesday 23 March in the shop and gave me a dig. He asked in a joking way “what sort of regime are you running here. One of your staff were crying at work last Sunday. “I took this seriously even if he did not intend it as such.

2. I checked the rotas to see who had been working on Sunday. I spoke to some staff and discovered that the Complainant was the employee who had been upset the previous Sunday.

3. I decided to have a quiet chat with the Complainant to see how she was. It arose out of concern for her. The meeting was on Thursday 24 March 2016.

4. I have a contemporaneous note taken on the meeting of 24 March.

5. Those present were MM and the Complainant and I

6. The meeting was not a formal one.

7. The note records as follows:

8. I asked the Complainant to attend/come to the office for a quiet word following a customer reporting that a staff members had been visibly upset on the previous Sunday

9. The Complainant’s response was that “she has a lot going on” that “she has issues to deal with” and “that she is leaving.” She said that “she has been thinking about this for a while.”

10. I asked her not to rush into anything and suggested that she settle down before making that kind of decision. She said that she was certain. “That was no problem with us!”

11. I asked her for a note in writing and she was happy to work a week’s notice

12. That was the extent of the conversation apart from a mention that MM would draw up the roster.

13. The meeting ended.

14. Prior to the meeting I was not aware that the Complainant had any issues to deal with, she was always a good and reliable worker. I would have taken her back if a different approach had been taken to this case.

15. We needed a Deli worker. Her departure caused difficulties for us.

16. In the days following the Complainant asked for a letter for the Department of Social Welfare.

17. I instructed my secretary to issue the letter. I told her to keep it vague, for the benefit of the Complainant, because I knew that if the letter stated that she had left voluntarily that she would not be able to claim social welfare. That is why it was expressed in a neutral way, that “her contract had come to an end.” However the letter does not accept that she was fired, because she was not.

MM gave the following evidence

1. NM approached me and told me that a customer had said that a staff member was visibly upset on the shop floor the previous Sunday. He told that that he had established that this was the Complainant and that he wanted to bring her into the office for a chat.

2. This was around 11.30 a.m.

3. I waited until the Complainant was not busy and then I asked her to come into the office for a quick chat.

4. We went into the office and NM said that a customer had seen her upset the previous Sunday and was she alright, was there anything that she wanted to talk about.

5. She said that “her head was not in a right place and that there was a lot going on in her personal life” I had not known of anything untoward or at all about her personal life.

6. The Complainant got upset and so I tried to change the subject.

7. I said that “going forward we did not want any changes to the rota” I said this because there had been a lot of changes recently with the rota and that this was causing difficulties.

8. She then said that she was handing in her notice anyway, so there would be no problem.

9. NM tried to settle her and suggested that she think it over before she hand in her notice

10. She said that she had her mind made up and that she had been thinking about it for a while

11. She was happy to give a week’s notice

12. I was surprised because I hadn’t seen this coming.

13. In response to a question as to why I had mentioned that difficulties that were being created by last minute rota changes; in light of my knowledge that the Complainant had been of medical leave the previous week, had been visibly upset the previous Sunday and was upset in the office, I answered that I was trying to change the subject to distract her as she was upset. Her departure hadn’t been mentioned at this stage.

14. No one at the meeting said that they were not happy with the Complainants work or attitude or that it would be best if she left. She is the one that raised the point about leaving, no one else.

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.

When the fact of a dismissal is in dispute, the onus falls upon the Complainant to prove on the balance of probabilities that the dismissal occurred as a matter of fact.

A dismissal is a clear communication by action or by word that the employer is terminating the employment of the employee. The question that needs to be answered is: Was it reasonable for the Complainant to believe that her employment was being terminated?

In this case there is a dispute over whether the dismissal occurred, as a matter of fact.

In light of this conflict of evidence what is to be determined is whose evidence is more credible on the issue of whether a dismissal occurred or did not.

I find on the balance of probabilities that the Respondent did not dismiss the Complainant on 24 March 2016. The fact that they were willing to accept her resignation is not an act of dismissal.

Reasons for the Decision-

1. I find that there is an inconsistency in the Complainant’s evidence at the hearing with the contents of the WRC complaint form. In the complaint form there is no suggestion that at the meeting she was told that she was dismissed, rather she states that the manager and the director made complaints about her taking time off and not pulling her weight. In her complaint form, she states that it was the later conversation with MM in telling her that she would be finished the following Thursday, that her employment was actually terminated.

    

2. The Complainant accepted that a month prior to the alleged dismissal she considered reducing her hours to a three day week and asked a co-worker to talk to management about this on her behalf. This is not evidence of resignation but it is evidence that in her own view, a month before the alleged dismissal, she found a full working week to be too much to manage.

    

3. I have discounted the evidence of the text messaging because it was inconclusive and therefore unreliable. And regardless of the contents of the texts, the Complainant accepts that mid February she found a full working week to be too much. This supports the Respondent’s evidence that the Complainant said on 24 March, that she had been considering handing in her notice for some time.

    

4. The fact that the Complainant did not tell G that she was dismissed on the day that it occurred, is material. There was no reason not to tell her friend at this point, when they had a close relationship and the fact that she told G instead that she was “finishing up on Thursday” as opposed to telling her that she had been dismissed, supports the Respondent’s version of events.

    

5. Taking into account all the evidence, both oral and documentary, I find that the evidence of the Respondent to be more credible than that of the Complainant

    

6. I accept the evidence of the Respondent that the Complainant was hard working, assiduous and capable employee and I am satisfied that she has a full and successful career in front of her.

    

7. The claim under the Unfair Dismissals Act 1977, as amended, fails

    

8. As no evidence was given by the Respondent to counter the claim under Terms of Employment (Information) Act, I find that on the balance of probabilities, that no contract in writing, was provided to the Complainant and that this claim succeeds. I award the Complainant €200.00 under this heading.

Dated:   25 April 2017