ADJ-00002671

Complainant

Respondent

Anonymised Parties

An employee

A Service Provider

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-00003702-001

06/04/2016

The complainant contends that he was unfairly dismissed after he refused to stay overnight as part of his duties in a new position with the respondent which he states did not require staying overnights.

The complainant rejects the argument that he had only 3 days service and was disbarred from making his claim.   It is argued that the complainant did not voluntarily resign from his employment, rather he was instructed to do so by the respondent when the complainant sought a different position with the respondent, one that did not entail living in. Further, it is argued that should the resignation be found to have been given freely, the onus would be on the respondent to enquire into the circumstance which led to him sending the email of resignation of 6^th November 2016. It is submitted that the complainant worked for the organisation continuously from 5^th January 2015 to 3^rd February 2016.   A resignation cannot be unilaterally withdrawn by an employee (or refused by an employer).   However, both parties can mutually agree to withdraw the resignation.   In this case, the complainant submits there was a mutual understanding from the outset that the complainant would be given another role in the company, and as such there was no resignation. If the complainant had resigned and if that resignation was accepted by the respondent then there should be two P45s. (Further submissions were made post hearing with case law supporting the complainant’s arguments).

It is submitted that the dismissal of the complainant was an unfair dismissal. It is argued that it was clear that the complainant could not or did not wish to work overnights and this was the very reason he changed jobs. The principle of ‘on call’ means that an employee is called in and the complainant offered to be called in from his home if required. The day after the complainant declined to stay overnight or late in the shift, he was called in to the M.D.’s office and suspended .   Noonan J. in O’Reilly v Bank of Ireland found the act of suspension in itself is punitive and should only be exercised in the gravest of situations.   It is argued that the complainant was called in on 1^st February, put on suspension, the disciplinary meeting was held on the 2^nd February and on 3^rd February he was dismissed. It is argued that the process was flawed, that the complainant did not receive an adequate or fair hearing and that the penalty imposed was disproportionate.

Preliminary Issue

A reading of the complainant’s resignation email stating : “I would like to officially hand in my notice from today…I just feel now that my time here has come to an end…” would indicate that the complainant had officially resigned from his employment.     I find that the Labour Court Determination (FTD1317) which is relied upon by the respondent to support the case that the complainant resigned his employment voluntarily and therefore has not the required service, to be not ‘on all fours’ with this instant case.   In FTD1317 the claimant resigned his employment from one County Council and then went to work for another.       In this instant case, the respondent offered the complainant another position in the same company and there was no actual break in service and no P45 issued .   I find that in these circumstances the complainant had the required service to bring his complaint under the Acts and I therefore deem the complaint to be properly before me.

Dismissal

The complainant was dismissed for what appears to be substantial reasons. However, the speed at which the complainant was processed through procedures is notable. I also find that mitigating factors such as the complainant having completed a year of overnights and his family circumstances were not taken into account.   While the refusal of the complainant to follow management instructions was a serious failure on his part, another penalty was not considered such as written warning or final written warning. I find that the penalty of dismissal was disproportionate, and I therefore find that the complainant was unfairly dismissed.   In considering remedy, I find that there is a complete breakdown of trust and relationships between the parties and re-instatement or re-engagement are not appropriate.   In considering compensation, I find that the complainant contributed 90% to the situation in which he found himself, and the preferable action on his part would have been to report for the duty required ‘under protest’ until some agreement could be reached between the parties.  I require the respondent to pay the sum of €1,900 to the complainant.