Complainant

Respondent

Anonymised Parties

A former employee

A Landscaping Company

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-00019475-001

29/05/2018

The Complainant commenced employment with the Respondent on 20/03/2006 as a Ground Maintenance Operative. His rate of pay was €498.92 per 40-hour week.

The employment with the Respondent ended on 30/11/2017.

The complaint was received by the Workplace Relations Commission on 29/05/2018.

The business of the Respondent is no longer trading and the owner is no longer working as a sole trader.

1.       I was a sole trader running the small business for 25 years with 2/3 employees (including himself) and always treat employees with dignity and respect. The relationship with the Complainant was always good and he (the Complainant) has been the beneficiary of this on many occasions.

2.       The Complainant has always been a full-time employee with the Respondent as per his terms of employment dated 26/01/2009 and signed by him. It is this Terms of Employment which has formed the basis of his employment for the full period with the Respondent employer.

3.       On 03/07/2017 the Complainant requested to go on a three-day week as he wished to study a forestry course. The fact that he is taking this course in Poland and travelling there on a weekly basis was not initially made known to the Respondent.

4.       At the same time the Complainant requested a letter to enable him claim Social Welfare and obtain Rental Allowance.

5.       At this time the Respondent was very busy and under pressure to ensure that all contractual obligations with clients were fulfilled on a daily basis.

6.       The letter requested by the Complainant was issued on the understanding that he would return to his contractual obligations to work 5 days per week. The Complainant looked for this letter to claim Social Welfare Benefit and Rental Allowance or he would leave the Respondent’s employment forthwith. The Complainant then went onto dictate that the letter should specify that the reduction in hours was due to a “loss of contract”.

7.       The Respondent believed that it was a short duration course of study and that he would be returning to full-time work on completion. When asked when he would be returning to full-time work he was very vague on the issue for some time. Eventually the Respondent found out that it was a four-year degree course the Complainant was attending in Poland.

8.       On numerous occasions the Complainant was asked when he would be available to return to a 5-day week, this he refused to do. He was asked would he consider coming back to four days per week, this was refused. The Complainant was only prepared to work 3 days per week as he would otherwise “lose out” on Social Welfare Benefit and Rental Allowance both of which he said he was claiming.

9.       The Complainant’s assertion, as stated in a letter dated 04/07/2018, written by the Complainant’s representative that “there was no suggestion by either party to return to a five-day week at any point in the future and was accepted as a permanent change” is simply and totally incorrect.

10.   It was never agreed with the Complainant that he could continue working a 3-day week “ad infinitum”. When the Respondent found out exactly how long the course was going to be he asked the Complainant about the fact that a full-time employee was needed and not a part-time employee. At this he threatened to leave the Respondent’s employment and start his own gardening business.

11.   In November 2017, due to contract obligations, the Respondent required a full-time employee and again spoke to the Complainant offering him the opportunity. The Complainant steadfastly refused to return to full-time again bringing up the subject of Social Welfare Benefit and Rental Allowance.

12.   It is submitted by the Respondent that as a result of all the circumstances outlined above, the Complainant has brought about, utterly and totally, through his behaviour, his departure from the Respondent company.

1.       In 2015 the Complainant asked the Respondent if he would agree to him, the Complainant, starting a part-time course of study and if agreeable, the Complainant would need to take some Fridays off work for this reason.

2.       It was agreed and the Complainant was both working full-time and studying.

3.       In July 2017 the Complainant went to work part-time due to some contract losses incurred by the Respondent.

4.       In November 2017 the Complainant was informed by the Respondent that he was going to merge the company with another company and this presented a requirement for the Complainant to return to full-time working. This would result in the Complainant having to give up his course of study.

5.       The Complainant, at this point was considering resigning from his job because he was then, in the third year of his studies.

6.       When the Complainant informed the Respondent that he would not resign and that he would have to fire him if there was no further need for him he was informed by the Respondent that there would be no more work for him after December 2017.

7.       When the Complainant told the Respondent, this was unfair he also requested a letter for Social Welfare purposes because he would have no means of supporting himself financially.

8.       The Complainant alleges that the Respondent accuses him of threatening that he would start working for another company. This is refuted by the Complainant.

9.       The Complainant states that he had no reason to leave his position with the Respondent and that after 12 years’ service he was simply told not to return to work.

I find that there are significant differences in the two versions of events.

For most of the twelve years of employment the Complainant and Respondent had a good working relationship and it would appear that both were the beneficiaries of this relationship.

In July 2017 the Complainant asked the Respondent if he could go on 3 days per week to accommodate his participation in a course on forestry. It was not initially made known to the Respondent that the course was in Poland and that the Complainant would have to travel to Poland on a weekly basis.

The Complainant, it wold appear, had requested a letter for Social Welfare purposes to allow the claiming of rent allowance. The Respondent maintains that this letter was issued on the understanding that such a letter would be provided and the Complainant would return to work on a full-time basis.

The Respondent made several attempts to establish when the Complainant would return to work on a full-time basis, short of this the Respondent requested that the Complainant consider returning on a four day per week basis. In reply he was informed by the Complainant that if he increased from a three-day week he would lose his Social Welfare Benefits.

When the Respondent established how long the course was going to take he informed the Complainant that he needed a full-time employee, not a part-time employee. At this it is alleged that the Complainant threatened to leave the business and open his own gardening business.

As already stated there are two very different versions of events.

The Complainant was employed as a full-time employee and appears to have went to part-time working at his own request. When the Respondent requested that he return to full-time working he refused and was evasive.

The Complainant, I believe, brought about his own departure from employment with the Respondent and it is for this reason the complaint of unfair dismissal fails.

The complaint fails.

Unfair Dismissal.