Complainant

Respondent

Anonymised Parties

An Employee

A Service Station

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00008616-001

06/12/2016

The Complainant contends that she was unfairly dismissed when the Respondent told her not to come to work after she refused to work on a weekend shift.   Dismissal was disputed by the Respondent.

The Complainant worked for the Respondent as a Deli Assistant from 20^th September 2012 to 10^th June 2016. In or around July 2015 she took maternity leave and was to return to work in February 2016. Prior to returning to work she informed the Manager that she would be unable to work weekends. She was informed that the employee who had replaced her whilst she was on maternity leave was now covering the 8am to 4pm shifts, Monday to Friday. In light of this, the Complainant handed in her notice. However, subsequently agreement was reached that she could work the 8am to 4pm Monday to Friday shifts, this being necessary for the Complainant to share the childcare arrangements with her partner who worked weekends. On 10^thJune 2016, the Complainant was asked by the Manager to work over the coming weekend as there was a festival on and she was required to work in a chip van away from her normal workplace.   The Complainant was told on no uncertain terms that she was working that Sunday morning. (The telephone call was recorded by the Complainant, with, she contends the agreement of the Manager).     During the call, the Complainant stated that she could not “point blank, do Sunday”.   The Manager told the Complainant not to come to work on the following Monday and that “I’ll sort out your paperwork there for next week”.   Thereafter, correspondence was exchanged between the Complainant’s solicitor and the Respondent, in which, at first the Respondent refused to recognise the solicitor as a representative of the Complainant, and then stated that the Complainant remained an employee and the Respondent was attempting to get in touch with her (letter dated 25^th July 2016). On 16^th January 2017, the Respondent wrote to the Complainant and furnished her P45, stating that as no formal resignation had been received the Complainant’s contract of employment was only terminated on receipt of the notification of the Complainant’s complaint to the WRC.   This was done, it is submitted, despite the clear verbal termination of the Complainant’s employment during the telephone call of 10^th June 2016 and the fact that the Complainant had been furnished with her outstanding holiday pay on 24^th June 2016, shortly after her termination.

It is submitted that the Complainant was unfairly and summarily dismissed by the Respondent during a telephone call, which constituted not only a complete lack of procedural fairness but also a wholly disproportionate response when viewed in the light of the circumstances in this case.

When the Complainant tendered her resignation following her maternity leave in early 2016, the Respondent met with her and offered her an alternative. He was in the process of opening a new deli at a different site and was in the position of offering her set hours during the week.   As part of this arrangement the Complainant was informed that she would still be required, on occasion, and with notice, to work at outside events on the weekend. The Complainant agreed to this proposal and commenced working on this basis in February 2016.   She was due to work at one such event on Sunday 12^th June 2016 and she was notified in advance.   On Tuesday 7^th June 2016 the Complainant sent a text message to the Manager asking what hours she was due to work on the following Sunday and she was informed that her hours would be 8 am to 12.   On Friday when the Complainant finished her shift at 16.00 it was understood that she would work on the Sunday and no issue was raised in respect of same. At 16.55 on that date, the Complainant sent a text message to her Manager stating that her agreed hours were from Monday to Friday and that she would not, under any circumstances work on the coming Sunday. On receipt of this message the Manager called the Complainant and advised that she had agreed to work on Sunday and that her refusal to do so would cause him difficulty. While it is agreed that the conversation was heated it is denied that the Complainant was dismissed during the course of the conversation. Following this exchange the Complainant did not attend for work. The Respondent made many attempts to contact her but there was no response.   The Respondent wrote to the Complainant requesting a meeting to resolve the issues but received no reply except Solicitors letters.

It is argued that while an argument occurred on 10^th June 2016, no dismissal occurred.   Legal cases cited in support include Devaney v DNT Distribution Company Ltd 412/1993, Walsh v Sweeney UD 751/1992 and Mansoor v Romansa Limited UD 360/2004.

It is submitted that every effort was made to contact the Complainant and that as in Walsh v Sweeney the Complainant cannot simply refuse to attend work and must take reasonable steps to verify the dismissal.

The Respondent disputes the fact that the Complainant was dismissed. I accept the evidence that the Respondent tried to contact the Complainant after the telephone call on 10^th June 2016.   However the Complainant considered herself dismissed by the words of the Manager in that call on 10^th June when he stated that she should not come into work the following week and that he would get her paperwork ready. Shortly thereafter she was paid her outstanding holiday pay and taken off the viber system, used for roster information.   There was a conflict of evidence around the requirement to work some Sundays and I note from the evidence that the Complainant indicated in some text messages that she would have been willing to work some weekends if given a few weeks notice.   However, on the occasion she was unable to work that Sunday.   Having reviewed the evidence and submissions in this case, I find that the Complainant was dismissed by phone call on 10^th June 2016 without due process or procedure. I find that the dismissal was unfair. The remedies of re-engagement or re-instatement are not suitable in the circumstances where the employment relationship has been sundered.     As compensation for the unfair dismissal, I award the Complainant the sum of €6,000.