UDD1730

This is Ms Untea’s (“the Complainant”) appeal from a decision of an Adjudication Officer (ADJ-00000426) dated 23 March 2016. The Complainant’s Notice of Appeal was received by the Court on 19 April 2016. The Court heard the appeal in Cork on 22 February 2017. The Adjudication Officer found that the complaint under the Unfair Dismissals Act 1977 (“the Act”) was well founded and awarded the Complainant compensation of €3,000.00. Coalquay Leisure Limited T/A Gold Rush Casino (“the Respondent”) was represented at the appeal by Mr Eoin Clifford BL (instructed by Murphy Condon Solicitors); the Complainant was represented by Mr Marius Marosan.

The Complainant commenced employment with the Respondent on 12 March 2012. Her employment terminated on 31 October 2015. The fact of dismissal is in dispute between the parties: the Complainant submits she was dismissed; the Respondent contends that she resigned her employment. The Complainant’s husband also worked for the Respondent.

Complainant’s Evidence

The Complainant was due to attend work at 5.00 p.m. on 31 October 2015. Before leaving for work that afternoon, she got her children ready to participate in ‘Trick-‘n-Treat’ activities. She told them that their father would be taking them out that evening. As the children were disappointed that she would be unable to accompany them, she asked her husband to call the colleague who was responsible for managing the roster to enquire if he could work her shift that evening in her place and she would then take a shift that he was rostered to work the following week. Shortly afterwards the Complainant’s husband received a call from the proprietor of the business, Mr Murphy. He was on his way to Dublin at the time, and – according to the Complainant – he was very annoyed that she was looking for a day off at short notice. The Complainant then telephoned Mr Murphy to explain the position and to clarify that she wasn’t looking for a day off but only to exchange shifts with her husband. She submits that she told Mr Murphy that she would attend for work that afternoon if permission for the exchange was not forthcoming. The Complainant attended at her place of work at 4.50 p.m. that evening. She had the children with her as her husband had been working and she handed the children over to him. When she went into the office, she met Mr Murphy whom she says told her that she didn’t need to be there and that she should go home again and enjoy the Halloween party. She submits that she told him that he was overreacting and that he had no right to send her home.

The Complainant believed that she was due to work again on 1, 2 and 3 November 2015. However, on 1 November 2015 she received a copy of the roster from her husband which indicated that she wasn’t rostered at all. She attempted to contact the office by telephone early on the following Tuesday (after the Public Holiday). Later that morning she received a return telephone call from Mr Murphy’s sister-in-law who informed her that Mr Murphy had told staff generally that she (the Complainant) had resigned her employment. She was also told that her P45 had been put in the post to her.

Under cross-examination, Mr Clifford BL asked the Complainant - if it was the case that she hadn’t resigned on 31 October 2015 - why hadn’t she reported for her shift the following day (Sunday) as per the original roster. The Complainant replied that she had wanted to allow Mr Murphy ‘time to calm down’. Counsel also put it to the Complainant that a co-worker, CV, would give evidence that the Complainant told her (CV) over the telephone 31 October 2015 that she (the Complainant) would not be returning to work for the Respondent. The Complainant replied she couldn’t recollect the content of that telephone call.

Respondent’s Evidence

Mr Murphy – the proprietor of the Respondent company – told the Court that he informed the Complainant during their telephone conversation on 31 October 2015 that he couldn’t allow the Complainant’s husband to work her shift that evening because this would result in the husband working a greater number of hours than was permitted under the Organisation of Working Time Act 1997. For this reason, Mr Murphy undertook to get a substitute to cover the Complainant’s shift on the evening of 31 October and if necessary he would work it himself. He went on to tell the Court that he discontinued his planned journey to Dublin and returned to the office in Mallow. While he was there, the Complainant came into the office at about 5.00 p.m. or 5.05 p.m. and became irate when she learned that substitute cover had been arranged. She asked Mr Murphy if she would be paid for her shift. According to Mr Murphy, the Complainant did not indicate that she was available to work the shift. If she had, he would willingly have allowed her to do so and would also have paid the substitute worker. According to Mr Murphy, the Complainant then took out her key to the office and said to him “I am out of here and am not coming back again.” Mr Murphy’s evidence to the Court was that he took this as a resignation and therefore instructed payroll to amend the roster for the following week and to issue the Complainant’s P45. He did not receive any further contact from the Complainant. Neither did he attempt to contact the Complainant. He told the Court that he has some 70 employees in total and he can’t be “running after them”.

A co-worker, CV, also gave evidence for the Respondent. Her evidence was that sometime on the evening of 31 October 2015 she had noticed a missed call on her phone from Mr Murphy. She, therefore, telephoned Mr Murphy who told her that the Complainant had resigned. Thereafter, the witness telephoned the Complainant to find out what had happened. The witness told the Court that she asked the Complainant had Mr Murphy told her (the Complainant) that she had been dismissed. The Complainant replied that Mr Murphy hadn’t dismissed her but that she “couldn’t work like this and wasn’t coming back.”

Definition of Dismissal for the Purposes of the Act

Section 1 of the 1977 Act defines ‘dismissal’ 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’.

Discussion and Decision

The Complainant disputes that she had resigned her employment on 31 October 2015 or at all. Equally, the Respondent denies that it dismissed the Complainant on that date or all. It follows that the Court must determine whether or not a dismissal within the meaning of the Act occurred.

On the basis of the evidence adduced, the Court is of the view that the Respondent genuinely could not accommodate the Complainant’s request to allow her husband work her shift in her place on 31 October 2015 as he had worked up to 60 hours per week over the course of a number of weeks immediately preceding that date. The Court fully accepts that Mr Murphy, although understandably annoyed at having to make a last-minute change to his plans to travel to Dublin, clearly communicated to the Complainant that he would arrange for substitute cover for her or cover the shift himself if necessary. This being the case, it would appear that the only explanation for the Complainant’s attendance at the office at 5.00 p.m. on 31 October 2015 was to enquire of Mr Murphy if she would be paid for the shift notwithstanding her decision not to work it. It would appear that she lost her temper with Mr Murphy when he told her that she wouldn’t be paid in the circumstances and that she then took it upon herself to resign her employment. The Complainant clearly confirmed the fact of her resignation to her co-worker, CV, in a telephone conversation later that evening. Had she had second thoughts about her intention to resign, the Complainant could have telephoned Mr Murphy later on the Saturday evening or she could have attended for work as per the roster the following day. She did neither. The Court finds, therefore, that the Complainant resigned of her own free will and made no effort to indicate to her employer that this was a decision taken in the heat of the moment which she regretted.

The complaint of unfair dismissal fails and the decision of the Adjudication Officer is overturned.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
13 June 2017.______________________
MNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.