Complainant

Respondent

Anonymised Parties

An Employee

A Retail Shop

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-00011243-001

10/05/2017

The Complainant commenced work in the Respondent’s retail shop in or about the third week of March 2016.

The Complainant stated that she was told, on 7 March 2017, that her hours were to be cut to one day per week. The Complainant further stated that, when she queried why no other staff member was having their hours reduced, she did not receive a satisfactory response from the Respondent.

According to the Complainant, she worked the reduced hours until 21 March 2017, when she was advised that she was not required for a few weeks and that the Respondent would be in contact with her in relation to her future hour/work schedule.

The Complainant filed a complaint with the WRC on 12 March 2017. This complaint consisted of three complaints requiring adjudication under the Terms of Employment (Information) Act, 1994 and the Protection of Employees (Part time Work) Act, 2001. In addition, the complaint contained a request for eight workplace investigations by the WRC, covering issues of pay and hours of work.

The Complainant stated that she wrote to the Respondent on 22 March 2017 requesting details in relation to her reduced hours. In this correspondence the Complainant also stated her objection to the reduction in hours and requested an explanation in this regard. The Complainant stated that she did not receive a response to her correspondence.

According to the Complainant, she did not receive any contact from the Respondent until 19 April 2017, when she received a phone call advising that she was due €961.00, arising from the WRC workplace inspections that were taking place at that time. The Complainant stated that the Respondent requested her to call to collect the money and sign for its receipt. She further stated that she declined the offer, as she wished to speak with the WRC Inspector who was carrying out the workplace investigations.

The Complainant stated that she spoke with the WRC Inspector on 10 May 2017, in an effort to establish if she had been dismissed or not. According to the Complainant the Inspector informed her that this was outside her (the Inspector’s) area of responsibility.   The Complainant stated that she felt she was in limbo and that she had been unfairly treated due to having requested her entitlements.

Consequently, the Complainant submitted her complaint for constructive dismissal under the Unfair Dismissals Act on 10 May 2017.

The Respondent raised two preliminary points in response to the complaint.

Firstly, the Respondent suggested that the Complainant did not have the requisite length of service in order to seek the protection of the Unfair Dismissals Act. According to the Respondent, the Complainant commenced employment on 18 April 2016. It was stated that their contention in this regard was further supported by Social Welfare documentation, acquired as part of a data access request, which identified the Complainant’s first day of employment as 24 April 2016.

In their second preliminary point, the Respondent contended that there was no dismissal at the time the Complainant lodged her complaint. The Respondent contends that the Complainant was not dismissed. In support of this contention, the Respondent referred to the Complainant’s WRC complaint form in which she described herself as being “in limbo” at that time.

Consequently, the Respondent asserts that there was no active dismissal at the time the Complainant lodged her complaint of constructive dismissal. According to the Respondent, the Complainant was laid-off for two/three weeks and it was intended that she would then resume working in line with business requirements. The Respondent further asserts that there must be an actual dismissal and that this cannot be inferred from an action.

In addition, the Respondent stated that they did not receive any formal notice of resignation. According to the Respondent, a request to issue the Complainant with her P45 was received, via the WRC Inspector. The Respondent stated that this request was duly complied with and the Complainant was issued with her P45.

Based on all of the above, the Respondent contends that there is no dismissal and that the Complainant’s claim in this regard must fail.

Preliminary Point - Length of Service:

Section 2 (1) (a) of the Unfair Dismissals Act, 1977, states that:

“this Act shall not apply in relation to any of the following:

In considering this aspect of the Respondent’s submission it is clear that there is a conflict of evidence between the parties with regard to the Complainant’s actual date of commencement of employment.

According to the Respondent, the earliest date of commencement was 18 April 2017. In further submission the Respondent refers to a possible commencement date of 24 April 2014.

The Complainant states in her complaint form that she commenced employment on 21 March 2016. This date differs slightly from that stated in her previous WRC complaint (submitted 12 March 2017) where she indicates the date of commencement was 18 March 2016. In her oral evidence at the Hearing, the Complainant indicated that she was unsure of the actual date of commencement but is satisfied that it was in the third week of March 2016.

The Complainant’s complaint under the Unfair Dismissal’s Act was lodged on 10 May 2017. Therefore, to comply with Section 2 (1) of the Act, the Complainant’s employment must have commenced on or before 10 May 2016. Notwithstanding the confusion that exists in relation to the Complainant’s exact date of commencement, I am satisfied that it was prior to 10 May 2016 and, therefore, complies with the length of service requirement of the Act.

Based on the above, I find that the Respondent’s first preliminary point is not well founded and is, therefore, rejected.

Preliminary Point - No Dismissal or Resignation:

Having carefully reviewed all of the evidence submitted on the Respondent’s second preliminary point, I am satisfied that the Complainant was not dismissed. This is clearly accepted by the Complainant in that her complaint is one of constructive dismissal.

Constructive dismissal relates to a situation where an employee terminates their contract of employment. In this case, I can find no evidence that the Complainant actively terminated her contract of employment. She did not submit a notice of resignation or advise the Respondent in any way that she intended to resign.

In her own evidence, the Complainant describes herself as being in a limbo situation and was obviously unclear as to what her employment status. Arising from this it would appear that she concluded she had been dismissed and, therefore, sought her P45 from the Respondent.

While I have some sympathy for the Complainant with regard to the circumstances which led to the culmination of her employment with the Respondent, I can only conclude that she was not dismissed and had not resigned at the point in time when she submitted her complaint of constructive dismissal.

Consequently, taking all of the above into consideration, I find that the Respondent’s preliminary point in relation to there being no dismissal is well founded and, therefore, reject the Complainant’s claim for constructive dismissal.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s complaint is rejected.

Unfair Dismissal

Constructive Dismissal