UDD183

The Complainant appealed against that decision to this Court.

The Complaint was filed with the Workplace Relations Commission on 27 January 2016. The Adjudication Officer issued his decision on 9 November 2016. The Complainant filed her appeal with the Labour Court on 19 December 2016. The case came on for hearing before the Court on 11 October 2017.

The Law

Section 6 of the Act states

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

The Respondent claims that the Complainant resigned and that no dismissal took place in this case.

Background

The Respondent first employed the Complainant on a fixed term contract for a period of 1 year commencing on 17 June 2014.

On 25 April 2015, in anticipation of the expiry of the fixed term contract of employment, Mr Jonathan Wright, the Company Managing Director, offered the Complainant a further fixed term contract for a further period of 1 year. The Complainant refused that contract stating that the atmosphere in the workplace was stressful and unpleasant.

The Complainant states that she informed Mr Wright that she would assess the situation again in August to coincide with her scheduled annual leave. She said that she hoped that the atmosphere would have improved by then. She expected that it would do so if new employees were hired cope with the workload.

Mr Wright submits that at a meeting with her on the 27th April the Complainant informed him that she would not accept a second fixed term contract but would continue to work in the company until the end of August 2015 to help cover the holiday period and to train her replacement into the post.

He stated taht she also informed him that as of September 2015 her child-minding arrangements would cease and that she would not continue working after that date in any event. He submits that he thanked the Complainant for her co-operation and informed her that if he got someone to replace her sooner she could go before her holidays.

The Complainant in evidence disputed this version of events stating that she never stated that she intended giving up work for child-minding or any other reasons. She said that her only concern related to the poor atmosphere in the office, the pressure of work and the stress that under which that put her.

A new person was employed after that meeting. Mr Wright submits that the new employee was employed to replace the Complainant as discussed between them. The Complainant states that she was employed to replace other staff members who had left the employment and whose positions had not been filled.

There the matter rested until 21 July 2015 when Mr Wright called the Complainant into his office and advised her that as she had trained in her replacement she was free finish up and to leave the employment.

Mr Wright states that the Complainant told him she was not leaving until the end of August. He states that he was surprised at this response as they had agreed in April that she would leave when her replacement was fully trained.

He further stated that he had formed the view that the Complainant was anxious to leave as soon as possible as he was being told by other members of staff that the Complainant was going for interviews for other jobs and was anxious to move on.

He states that having reflected on the exchange overnight he arranged a second meeting with the Complainant for 22 July 2015.

At that meeting he says he told the Complainant that notice of the termination of her employment would formally commence with effect from 11 August 2015. He says he chose that date as it coincided with the date on which the Complainant was due to return from her summer holidays. He said that in accordance with her statutory entitlement her employment would terminate on 29 August 2015.

He said that following the meeting of 27 April he had employed another person to replace the Complainant. He said that in accordance with their agreement of 27 April the Complainant was training in her replacement.

He said that he would not have employed that person had he not had an agreement with the Complainant to terminate her employment after she had trained in her replacement.

The Complainant states that she was taken by surprise by the exchange she had with Mr Wright on 21 July as she had no agreement with him to terminate her employment at any time. She said she had refused to sign the new fixed term contract in April as the conditions under which she was working were stressful. She said that she was seeking an increase in the staffing level to relieve that stress.

She said that in the interim Mr Wright had employed another employee whom she was training to assist her with the volume of work. She said that as a result of the employment of additional staff the stress levels in the workplace had diminished considerably.

She said that the conversation she had with Mr Wright on 21 July 2015 came as a shock to her. She denied there was an agreement between them that her employment would terminate at that or at any other time. She said that the conversation she had on 21 July was followed by a further meeting on 22 July at which she was served with notice of termination of employment with effect from 29 August 2015.

She said that she was thereby dismissed from her employment.

On 15 August 2015 the Complainant returned from her summer holidays and filed a complaint under the Respondent's grievance procedure. She says that the complaint was not properly processed through the procedure and that she has not been formally notified of the outcome of an investigation that took place into her complaints.

Ms Nicole Culligan, an employee of the Respondent, told the Court that she was employed to replace the Complainant and was trained by her into the job. She said that she was introduced to the Complainant by Mr Wright as her replacement. She said that the Complainant continually told her that she would be leaving the Company later that year. She said that as part of the training she initially sat beside the Complainant shadowing her work. As time passed she replaced the Complainant at her desk and started to undertake her work under supervision. She said that finally she took over the Complainant’s work entirely and referred to her on rare occasions for advice or direction on issues as they arose.

She said that the Complainant handed over her work-related keys to her as her training progressed. She said that when she was fully trained she took over her work and her job.

She said that the Complainant told her she was applying for and attending interviews for jobs during that time. She said that the Complainant took time off work to do so. She said that she had a clear understanding from the Complainant that she was leaving her employment when she had trained Ms Culligan to replace her in that role.

Issues for the Court

Dismissal or Resignation

The Court must decide whether the Complainant was dismissed or resigned her position with the Respondent.

The Complainant submits that she was dismissed from her employment by way of notice of termination of her employment served on her on 22 July 2015.

The Respondent submits that the Complainant gave notice of termination of her employment at the meeting that took place on 27 April 2015 when she refused the renewal of the fixed term contract of employment for a further year and during which she indicated she would continue working until her scheduled annual leave in August 2015.

Findings of the Court

Based on the evidence before it the Court finds as a matter of fact that the Complainant rejected the second fixed term contract of employment when it was offered to her on 25 April 2015. The Court further finds that the Complainant over the course of two meetings gave notice to the Respondent that she would not accept a further fixed term contract but would continue to work for the Respondent to facilitate the recruitment and training of her replacement. She anticipated that would be completed to coincide with the commencement of her annual leave in August of that year. However a loose arrangement was entered into whereby she could finish up at an earlier date if that could be accommodated and her replacement was trained.

The Court finds that the Respondent acted on that agreement and employed Ms Nicole Culligan as the Complainant's replacement. The Court accepts the evidence of both Mr Wright and Ms Culligan that she was introduced to the Complainant as her replacement. The Court further finds that the Complainant then proceeded to train Ms Culligan into the duties of her post in the clear knowledge that she was her replacement.

The Court finds that Ms Culligan's evidence that the Complainant progressively gave up her desk, her duties and her keys to her as she became familiar with the duties of the post is persuasive. The Complainant did not offer a convincing explanation to the Court for her co-operation with these developments.

Accordingly the Court finds that the most likely explanation for the Complainant's behaviour is that she had a clear understanding that her employment was terminating and that Ms Culligan was replacing her.

The Court finds that the Complainant attended a number of interviews between April and August 2015 seeking alternative employment.

The Court further finds that time ran away on the Complainant and that she had not found suitable alternative employment before her scheduled holidays in August 2015.

The Court further finds that the Complainant at that time sought to resile from her agreement to terminate her employment. However at that point it was too late as she had co-operated with the implementation of the terms of her agreement by training in her replacement and delaying until the last moment to seek to accept the offer that she had refused in April 2015.

Based on these findings the Court finds that the Complainant resigned from her position by agreement with the Respondent and that the notice of 21 August 2015 does no more than give effect to that agreement.

Accordingly the Court determines that the Complainant resigned and was not dismissed and that the complaint of unfair dismissal before the Court is not well founded.

Determination

The Complaint before the Court is not well founded. The appeal is not allowed. For the reasons set out above the decision of the Adjudication Officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
19th January 2018______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.