FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : ARGOS DISTRIBUTORS (IRELAND) LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - PADRAIC DUNNE (REPRESENTED BY ANNE HICKEY SOLICITORS) DIVISION : Chairman: Mr Haugh Employer Member: Ms Connolly Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer Decision No.ADJ-00002195.
BACKGROUND:
2.
The Employer appealed the Decision of the Adjudication Officerto the Labour Court on the 5th October, 2016 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on the 11th October, 2017. The following is the Determination of the Court:
DETERMINATION:
Background to the Appeal
This is an appeal brought on behalf of Argos Distributors (Ireland) Limited (‘the Respondent’) against a decision of an Adjudication Officer (ADJ-00002195, dated 29 August 2016) wherein the Adjudication Officer held that Mr Dunne’s (‘the Complainant’) claims under the Unfair Dismissals Act 1977 and the Minimum Notice and Terms of Employment Act 1973 (but not under the Redundancy Payments Act 1967) were well-founded. The Notice of Appeal was received by the Court on 5 October 2016. The Court heard the appeal on 11 October 2017 in Donegal. In the course of the appeal, the Court heard evidence from the Complainant himself and from Mr George Leetch, on behalf of the Respondent.
It is common case that the Complainant was continuously employed on a part-time basis at the Respondent’s Sligo store from 16 October 2010 until 16 September 2015. With effect from 19 July 2014, the contractual arrangement between the Complainant and the Respondent provided for a minimum of 15 hours’ work per week. Sample rosters (covering a 12-week period) submitted by the Respondent indicated that the Complainant worked on average approximately 20 hours per week. In the weeks in which he worked in excess of his contractual minimum hours, the overtime hours were worked most frequently on a Saturday and occasionally on a Sunday but his basic 15 hours were worked between Monday and Friday.
In Spring 2015, the Complainant applied to return to third-level education as a mature student to pursue a degree in accountancy. He submits that he informed his line manager, Mr George Leetch, in March 2015 that he had made this application and that he had asked him at that time if the Company would facilitate him with weekend hours from September 2015 should his application be successful. It is not disputed that Mr Leetch advised him that there should be no difficulty with this. It appears that Mr Leetch, in fact, assisted the Complainant in his preparations for the interview process with the college. The Complainant received confirmation in early July 2015 that his application for a college place had been successful and that his course would be commencing the following September. There is a dispute between the parties as to when the Complainant communicated this to the Respondent: he says he did so on the first occasion he was at work following receipt of the offer from the college (i.e. in July); the Respondent submits he didn’t inform his line manager until late August 2015.
A meeting subsequently took place between Mr Leetch and the Complainant during which Mr Leetch informed the Complainant that management had carried out a review of the staff mix and headcount in the store and had determined that it would not be possible to accede to the request the Complainant had made informally in March 2015 to be permitted to complete his 15 hours’ work on Saturdays and Sundays following the commencement of his college course. The Complainant submitted that this meeting took place on 4 September 2015; Mr Leetch’s evidence is that it took place on 2 September 2015 as he wasn’t working on 4 September. Mr Leetch told the Court that he was in the store on 4 September shopping and he had a brief conversation with the Complainant, lasting no more than 30 seconds. (The Court regards the evidence of Mr Leetch with regard to the date of the meeting as being more reliable than the Complainant’s.) Mr Leetch further told the Court that he made two proposals to the Complainant at the meeting on 2 September 2015: (i) that the Complainant take a few weeks of unpaid leave of absence until such time his college timetable had been definitively settled with a view to the Company and the Complainant reviewing the situation then to see if he could be given hours during the week that were compatible with his college timetable; or (ii) that the Complainant waited until ‘the peak’ pre-Christmas period at which time the Company could give him weekend work which might then be continued thereafter.
The Complainant submits that only the second proposal was made to him and that had the first one been made he would have readily accepted it. He also says that he rejected the second proposal because he assumed that it would require him to quit his contract and recommence employment some months later on minimum wage. In response to questions put to him by the Court, the Complainant admitted he had not enquired about the terms that would apply were he to accept the second proposal and that he had simply made an assumption in this regard. Mr Leetch’s evidence is that the Complainant would not have had to forego his contractual rate of pay of €11.84 per hour and nor would he have had to break his service if he had accepted the second proposal.
According to Mr Leetch, the Complainant became very irate at the meeting on 2 September and told him that he wasn’t going to accept his proposal. The Complainant’s evidence to the Court is that he regarded himself as having been dismissed at this meeting. Mr Leetch, on the other hand, told the Court that he did not dismiss the Complainant. He also made the point that both he and the Company held the Complainant in very high regard as a worker and did not want to lose him, particularly coming up to the busiest period of the year; they wanted to retain him in employment and that was the reason why he had made the two proposals to him. Mr Leetch gave evidence that he was very familiar with college life as he had been President of the Students’ Union and a member of the college’s Governing Body. He knew that it would take a number of weeks before the Complainant’s timetable would be settled. He had rostered the Complainant for work at that stage for the weeks beginning 6, 13 and 20 September 2015.
In any event, on 4 September 2015 the Complainant sent an email to the HR Queries Team in which he took exception to the fact that the Company had left it so late in the day to communicate to him its decision that it could not accommodate him with 15 hours’ work at the weekend from mid-September onwards. He also referred to the fact that a number of part-time weekend positions had been filled in August. He told the Court he hadn’t applied for any of those positions because he hadn’t known that they had been advertised until he saw applicants attending for interview. The Complainant received an email from HR on 7 September 2015 in reply to his of 4 September 2015 in which a member of the Respondent’s HR team advised him as follows: “You would’ve had to put in a Flexible Working request to reduce your hours, in turn the management would have up to three months to see if they’re able to implement this into the business or not. However, there is no obligation in adhering to this (sic). Have you looked at the possibility of a transfer to another store?”
The Complainant sent an email to the incoming store manager, Ms Niamh Heaney, on 9 September 2015. In that email, the Complainant stated that he had received a letter on September from Mr Leetch stating that he (the Complainant) was leaving his employment and asking Ms Heaney to provide him with a letter stating that he was, in fact, being dismissed. Ms Heaney replied by email on 10 September 2015 (which transpired to be the last day on which the Complainant attended for work at the Respondent’s Sligo store) and said that her understanding was that the Complainant was no longer available to fulfil his contract as he was returning to college. The Complainant in turn replied to Ms Heaney (also on 10 September) and stated that he didn’t wish to “leave work” and had been under the impression that his contract could be changed to weekend hours. At this point – and for the first time – the Complainant communicated the following information to the Respondent: “I’m still available from 1 on Monday, 4 on Thursday and all day Friday, Saturday and Sunday.”
It is accepted that the Respondent did not reply to this email and that the Complainant was sent his P45 some two weeks later. However, Mr Leetch gave evidence of a further conversation he had with the Complainant on 10 September 2015, on the back Ms Heaney’s email of earlier that day, in which he reiterated to the Complainant that he was not being dismissed and in which he made it very clear that the Company did not want to lose him as an employee. Following this conversation with the Complainant, Mr Leetch sent an email to Ms Heaney in which he outlined the position as follows:
- “Padraic was working today when I was in the store. I discussed with him the fact that he is not being dismissed and that he is more than welcome to stay with us on his current contract, (15hrs weekday).
I explained that as he is commencing college and his timetable for college is Monday to Thursday, we are not able to facilitate the provision of 15 hours due to the contractual demands of his colleagues and the needs of the business.
Padraic explained he is available to work Friday, Saturday and Sunday, however, we have 7 weekend contracts already and 11 other colleagues who are available to work on Friday, Saturday and Sunday.
Padraic indicated that his issue was with the wording of the letter which stated that he was leaving due to the commencement of a third level course, as is the case, I offered to re-word the letter for him but indicated that I could not give him a letter saying he was being ‘dismissed’ as that is not the case.”
The Complainant had no subsequent communication with the Respondent other than phoning in on 11 September 2015 to inform his manager that he wouldn’t be attending for work on that date for personal reasons. In particular, the Complainant chose not to avail himself of the Respondent’s Grievance Procedure, a copy of which was displayed on the staff notice board at all material times.
Discussion and Decision
As dismissal was denied by the Respondent – and was, therefore, in dispute – the onus was on the Complainant to establish that he had, in fact, been dismissed. Having considered the evidence adduced in this regard, the Court determines that a reasonable person in the Complainant’s circumstances would not have regarded himself as having been dismissed. It is clear to the Court that the Respondent regarded the Complainant as an excellent worker and that through Mr Leetch it made a number of perfectly reasonable proposals to him whereby he could be retained in employment and ultimately be facilitated with part-time weekend hours. The Complainant should have been more proactive in engaging formally with his employer once he received confirmation of his college place in July 2015 so as to give the Respondent as much time as possible to consider how his request for a change to his contractual hours could be accommodated having regard to the needs of the business.
In all of the circumstances, the Court finds that no dismissal occurred. The Respondent employer’s appeal, therefore, succeeds and the decision of the Adjudication Officer is set aside.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
1st November, 2017______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.