ADJ-00017205

Complainant

Respondent

Anonymised Parties

A Retail Worker

A Retail Shop

Representatives

Tom Smyth & Associates

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00022273-001

01/10/2018

The complainant commenced work with the respondent on September 17th 2016 and the employment terminated in September 2018. He earned the National Minimum Wage.

The respondent denies that it dismissed the complainant and in fact offered to reinstate him.

The complainant returned to work on September 5th 2018 after a period of unauthorised leave. Because it had been uncertain as to when he would return his manager had not placed him on the roster.

Despite having had a week’s leave in June he sought to take six weeks’ leave from July 9th but this request was denied. The complainant revised his request to four weeks, adding that he had already booked flights to India.

The complainant was not on the roster from July 6th.

He was due back on August 6th but could not return because of severe adverse weather problems in India.

He advised the respondent of these problems, including the closure of the airport from which he was due to fly back to Ireland and his difficulty in returning.

The shop manager gave evidence that he was not expecting the complainant to return and was simply telling him that the roster had been drawn up for the following week and that he had not scheduled work for the complainant.

The complainant asked to speak to the shop owner about the matter, but the owner was unavailable on the day and his manager assumed that he would do so later. The complainant asked the manager for his P45 in the course of the discussion.

In the event the complainant did not speak to the owner or raise the matter in any other way. The owner stated that he had been expecting the complainant to come to him, but he did not do so.

The complainant called to the shop again on September 21st to return his uniform and requested his P45 and the respondent took this as his resignation.

The background up to the complainant’s return to work is as described above.

He telephoned the respondent on August 26th to advise of his difficulty in returning to Ireland. He had originally been due to return to work on August 19th.

He went to the shop on September 5th to discover he was not on the roster. He went again on September 7th and was told he would be sent his P45.

He says he was told that there was no ‘position’ or ‘job’ for him; not simply that there were no hours.

In relation to the proposed conversation with the business owner the complainant says that his manager told him there would be ‘no point’.

He denies asking for his P45 and says he was not aware of what a P45 was.

It was only on returning home from the September 5th episode to tell his wife that he had been dismissed that she, being more familiar with these things, queried whether he had got his P45 and in due course he returned to ask for it.

The respondent described the period from July 9th as ‘unauthorised’. Yet it says he was expected back to work on August 6th.

The reasons for the delay in his return are not in dispute and quite credible. The respondent noted that the airport from which the complainant was due to travel was closed between August 14th and 29th but yet referred to the complainant’s reliance on the contribution of the weather in India to his difficulty in returning as the ‘alleged bad weather’.

In fact, that episode of flooding in Kerala made global headlines as the worst flooding in nearly a century in the course of which a million people were evacuated. The complainant did not invent it.

As it happens, the status of the leave and the delay are secondary to what actually happened when the complainant did eventually return, although the respondent was clearly annoyed by it.

He presented for work on September 5th, apparently unexpectedly. There is a dispute about whether the manager said he had no ‘hours’ for the complainant (the manager’s version), or no ’job’ or ‘position’, (the complainant’s version).

The former version has the merit of being entirely reasonable as a statement of fact.

By way of illustration, even if he had said he had no ‘work’, (which was not alleged by either party) this might have been the basis of ambiguity and misunderstanding about whether that referred to the imminent rostered period or to the longer term.

The manager had an obligation to make out the roster on the basis of the known availability of the employees.

Bear in mind that on that date the complainant had been absent from work since July 9th, almost two months earlier. However, it is not correct the describe the first part of the absence as unauthorised, except insofar as he did not comply with the notice requirements. There was no evidence of leave being refused and the respondent, at worst acquiesced in it.

The problem arose with the difficult weather situation in India and the problems about the complainant’s return.

Had the respondent wished to terminate the complainant’s employment as a result of the delayed return, or the alleged ‘unauthorised’ leave, or for any other reason it could have done so; using the established, lawful procedures for processing a termination.

However, it says that the complainant essentially resigned when he was told that he could not be returned to the roster in September 5th. (He had only returned to Ireland the day before).

In addition to this there is one other consideration in the respondent’s favour.

The shop manager stated that he had no authority to ‘hire or fire’.

This, certainly the latter, is a matter for the business owner exclusively.

I find that on the balance of probability the complainant either misunderstood or misheard what he was being told by the shop manager, and his failure to query or clarify where exactly he stood is surprising; specifically, to ask when he would return to the roster.

On these particular facts, and given the apparent ambiguity, there was some obligation on him to do so. He must have known that there might be some difficulty in assimilating him on to the roster after such a significant absence.

This does not contradict the general onus of proof which falls on an employer to justify a termination as being fair.

But in a situation where the respondent can claim with some justification that it did not terminate the employment that is a different situation. In such a case, an employee needs to at least seek confirmation of his status, especially where the most obvious explanation for his not being able to return to work on the particular day was a perfectly reasonable one.

The respondent may well have been aggrieved at his extended absence, and somewhat less than open with the complainant about what would happen next, but the evidence is insufficient to show that it terminated the employment.

For the reasons set out above I do not uphold complaint CA-00022273-001 and it is dismissed.

Unfair dismissal, resignation.