UDD184

Background

The Complainant was employed by the Respondent as a Residential Advisor from September 2009 till 31^stAugust 2015. In 2014 an issue arose as to the necessity for this role going forward. The Complainant entered into an agreement with his employer which confirmed that he would be given a final contract that would expire on 31^stAugust 2015 and at that point he would receive an ex-gratia payment of €5,000 euro. Following the expiration of the contract and the payment of the ex-gratia payment in September 2015 the Complainant expressed surprise that he had only received a net payment of €2,410. It was his understanding and had been confirmed by the HR Department that he would receive the full €5,000 euro. As this issue could not be resolved to his satisfaction he submitted an unfair dismissal claim in February 2016.

Complainant’s case

The Complaint told the Court in evidence that when he signed that agreement he did not give “informed consent”. At the time of signing the agreement he thought he would receive the full €5,000 euro. If he had known at the time this was not the case, he would not have signed the agreement. He also told the Court that he considered himself unfairly dismissed from July 2014 even though he continued to work for the Respondent for a further 12 months. He later stated that he considered himself unfairly dismissed in December 2015 when he was unable to resolve the issue in relation to the shortfall in the payment he had understood he was to receive. The Complainant confirmed to the Court that he estimated his loss for two years as being €28,000. However, he took up new employment on the 1^StSeptember 2015 the day following the termination of his employment with the Respondent. His earnings in the new employment are higher that what he earned with the Respondent. The Complainant confirmed in his evidence that he had been aware since February/ March 2015 that he would be commencing the new employment on 1^stSeptember 2015.

Respondent’s case

The Respondent disputes that a dismissal took place. It is their position that as the College was to be incorporated into a new entity with other colleges they were aware going forward that they would not require Residential Advisors. They had a number of engagements with the Complainant on this issue which resulted in the agreement of July 2014. They do not dispute that he was incorrectly advised in relation to the taxability of the payment but claim this was a clerical error. It is their position that they were legally obliged to deduct the tax. However, in an effort to resolve the issue they are prepared to make a payment of the €2,590 being an amount equivalent to what he had lost out on due to tax. Despite numerous items of correspondence between the Complainant and the Respondent post September 2015 the issue of unfair dismissal was never raised. The only grievance raised was the shortfall in the money he received.

The applicable law

Section 1 of the Act defines dismissal in the following manner

1. “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;

Section 6(1) states

“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.”

Issues for the Court

As dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act.

Discussion

The Complainants case is that his dismissal was unfair as he did not give informed consent when he signed the agreement which terminated his employment on 31^stAugust 2015. The Respondent’s position is that the Complainant is trying to resile from the agreement reached in July 2014.

In this case, it is clear on the evidence that the Complainant entered into an agreement with the Respondent and only became unhappy about that arrangement after he had left the employment and he received the reduced payment.

Having regard to the foregoing, the Court cannot see how as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as defined by the Act.

Determination

Having carefully considered the submissions both written and oral and the evidence given at the hearing the Court cannot find that the Complainant’s employment came to an end by way of dismissal.

The Court determines that the Complainant’s complaint is not well founded. The appeal is rejected. The decision of the Adjudication officer is affirmed.

The court so Determines.

Signed on behalf of the Labour Court



Louise O'Donnell
12 January 2018______________________
CCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.