Complainant

Respondent

Anonymised Parties

Deli Assistant

Supermarket

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-00008708-001

11/12/2016

The Complainant was employed with the Respondent from 25^th November 2006 until the employment terminated on 29^th July 2016 as asserted by the Complainant and 26^th August 2016 as asserted by the Respondent. The Complainant was paid €400.00 gross per week and she worked 40 hours a week. The Complainant was provided with a written statement of her Terms and Conditions of Employment, including the Grievance and Disciplinary Procedures of the Company. The Complainant referred a complaint to the Workplace Relations Commission on 11^th December 2016 alleging she had been unfairly dismissed by the Respondent on 29^th July 2016. The fact of dismissal is in dispute.

The Complainant stated that she took six weeks annual leave commencing on 20^th June 2016 and to return on 3^rd August 2016. She stated that she was travelling to China and that the annual leave was sanctioned by the Respondent. She stated that she phoned the Respondent on 5^th August 2016. She phoned again one week later concerning a return to work. The Complainant stated that while she was on annual leave the Respondent recruited another employee to replace her. The Complainant confirmed that she was offered an alternative position as a cashier on her return but she was not prepared to accept this. The Complainant also confirmed that this offer would mean no loss of earnings. The Complainant stated that she had been dismissed by the Respondent on 29^th July 2016 and this is also stated on her complaint form. The Complainant stated that she had commenced new employment on 13^th September 2016 where she works 33 hours a week and is paid €9.25 an hour. The Complainant stated that she did not seek Jobseekers Benefit from the Department of Social Protection.

The Respondent stated that the Complainant commenced employment on 25^th November 2006 as the number 2 deli person. The Respondent stated the Complainant was a very good employee. In March 2016 the Complainant applied for 3 weeks annual leave as she wished to return to China and this was agreed. She was to commence her annual leave for 3 weeks on 20^th June 2016 and the annual leave roster was supplied to the Hearing. However some days later the Respondent’s Deli Manager informed the Respondent that the Complainant had informed her that she was taking 6 weeks to go to China. The Respondent had a meeting with the Complainant and informed her that 6 weeks was not sanctioned as it was not possible. She was also informed that if she did not return after the 3 weeks annual leave sanctioned she would have to be replaced as a Deli Assistant and also informed her that her Contract provides that the Employer must sanction annual leave.

The Complainant was due to return to work on 4^th July 2016 but did not do so. The Complainant phoned the Respondent and a meeting was arranged for 3^rd August 2016. The Respondent explained that the Deli Position was occupied for the moment and she was advised that she could work on the checkout at no loss of earnings. The Complainant refused this offer. The Respondent sought to contact the Complainant on a number of occasions but the Complainant refused to engage with the Respondent. The Complainant attended the office on 26^th August 2016, requested her P 45 which she signed for on the same date – evidence provided to the Hearing.

The Complainant was not dismissed by the Respondent and she was assured that her hours and terms and conditions of employment would not change with the change of role on the checkout. However the Complainant refused and it was the Complainant who resigned when she requested her P 45.

On the basis of the evidence from both Parties I find as follows-

The complainant form submitted by the Complainant states that her employment terminated on 29^th July 2016 when at this time the Complainant was in fact in China on 6 weeks leave which had not been sanctioned by the Respondent. In direct evidence at the Hearing the Complainant stated that she commenced annual leave on 20^th June 2016 and she returned from China on 3^rd August 2016. Therefore the Complainant could not have been dismissed by the Respondent on 29^th July 2016.

The Complainant and the Respondent confirmed that on the Complainant’s return from China early August 2016 she contacted the Respondent and was informed that as she had taken unauthorised annual leave of 6 weeks rather than the 3 weeks sanctioned, that she had been replaced as Deli Assistant.

The Complainant confirmed at the Hearing that yes she had been offered a position at the Checkout on the same terms and conditions of employment and both Parties confirmed that the Complainant had refused this alternative position.

Both Parties confirmed at the Hearing that there had been contact between them in August 2016 in relation to the offer of alternative position but that on 26^th August 2016 the Complainant attended the office e of the Respondent and requested her P45. The Complainant confirmed that she had signed receipt of the P45 on 26^th August 2016 – evidence provided.

Dismissal – Not well founded as Complainant fails to establish evidence of a dismissal by the Respondent.