Complainant

Respondent

Anonymised Parties

Butcher

Retailer

Representatives

Self

Neil Breheny, Sean Ormonde & Co., Solicitors

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-00023884-001

03/12/2018

The complainant commenced employment in June 2010 and worked as a butcher in the convenience store, the operation of which was taken over by the respondent in early October 2016. The complainant was diagnosed with a serious illness in November 2016 and commenced sick leave. The complainant remained absent and in July 2018 informed the respondent that he was not returning to work. The complainant requested his P45 Form on several occasions over the next few months but did not receive it. Finally, in November 2018 he was informed by Revenue that the respondent had submitted a P45 to them stating that his employment had ceased in November 2016.

The complainant was diagnosed with a serious illness in November 2016.

As a result, the complainant was hospitalised and underwent medical treatment which resulted in a prolonged absence from work.

The complainant kept the respondent informed and in July 2018 was certified fit to return to work.

The complainant did not feel that he could return to his role with the respondent and therefore informed the respondent that he was resigning and requested his P45 form.

Despite numerous requests he did not receive the form and was finally advised by Revenue that the respondent had filed a P45 stating that his employment had ceased with effect from November 2016.

The complainant is claiming unfair dismissal on the basis that he was dismissed without his knowledge on 11 November 2016.

The respondent took over the franchise of operating the store in October 2016 and the employees’ service transferred under TUPE regulations.

The complainant commenced sick leave on 11 November 2016 and the respondent received certification in this regard from the hospital.

The respondent offered support to the complainant and kept his job open for him.

In July 2018 the respondent received a registered letter from the complainant stating that he was fit for work but was resigning his position and requesting his P45 form.

The respondent did not initially respond as there was mention of solicitors but in October 2018 instructed his accountant to issue the complainant’s P45.

The date on the P45 form, which was completed by the accountant, was the date of the last payment to the complainant.

The respondent’s representative raised a preliminary issue in respect of the title of the respondent as set out in the complaint form. The form, as filled in by the complainant, identified the respondent simply by the brand name under which the franchise operates. The representative stated that this was incorrect as his client was a sole trader trading as the brand name. It was accepted that the address was correct.   The file, however, contained an email from the representative’s client, sent on 11 December 2018, in which he himself clarified this issue and proceeded to provide a detailed explanation as to his position on the issue in dispute. In these circumstances there is no question of the respondent being at any disadvantage in regard to changing the title of the respondent in line with the details set out in that email. The title of the respondent is accordingly amended to that of a named sole trader trading as the brand name at the specific location.

The background details of this issue are not in dispute. The respondent took over the franchise in October 2016 and took over the employment of the complainant under Transfer of Undertakings Regulations.   On 11 November the complainant was diagnosed with a serious illness and was admitted to hospital. A cert to this effect was received by the respondent. The complainant had to undergo medical procedures and remained absent on sick leave.   The respondent received certs to this effect for about 4 months and then received a cert for the following 12 months. The respondent stated that he had phoned the complainant at an early stage to offer support and that at some stage, while still recuperating and undergoing tests, the complainant had called into the store and spoken to him in general terms.

There appears to have been no further communication between the parties until July 2018.   According to the complainant he was certified at this time as being fit to return to work but felt that he would not be able to return to the position that he had with the respondent as he would not be able to stand behind a counter for 8 hours per day.   The complainant sent a letter to the respondent, dated 12 July 2018, in which he stated:

“On the advice of my solicitor I request that you forward my P45 plus any other monies due to me within fourteen days (14) of receiving this notice otherwise it shall be put in the hands of the revenue commissioners.   You have received my final certificate deeming me fit for employment on 10/07/2018 and I have advised you that I no longer wish to remain in that position.

Thank you for your time and diligence.

Yours sincerely

P.S. I have made a copy of this for my solicitor’s attention.”

The complainant also went to the store and met with the respondent in this regard. The respondent stated that he asked the complainant if he was driving a taxi and the complainant told him that it was none of his business. Some weeks later the complainant wrote again to the respondent reiterating that he had resigned and again requesting his P45.  

The respondent, according to his evidence, did not initially request his accountant to issue the P45 as he was expecting a letter from the complainant’s solicitor.   Eventually the respondent instructed that the form be sent to Revenue in October 2018. In the meantime, the complainant was still seeking his P45 and in November contacted the Department of Social Protection and Revenue in this regard. The complainant was advised that a P45 form had been issued by the respondent which contained a date of cessation of 11 November 2016. The complainant then lodged his complaint with the WRC on the basis that he had been dismissed without his knowledge on the 11 November 2016, the day that he was admitted to hospital.

Reviewing the evidence before me I note that the only evidence that the complainant puts forward in support of his claim is the information contained on the P45 form.   This form is a Revenue Commissioners’ form in respect of taxation. The respondent stated that the form was prepared by his accountant’s office and that the date of 11 November 2016 was the date that the complainant was last paid. The respondent stated that he had requested his accountant to issue the P45 in October 2018 and documentation provided by the respondent shows that it was filed with Revenue on 30 October 2018.

The respondent’s position is that the complainant resigned. During his absence the complainant submitted and the respondent accepted sick certs. While recuperating the complainant called into the store and had a general conversation with the respondent. No mention was made to the effect that the complainant’s employment had been terminated.   In July 2018 the complainant met with the respondent to inform him that he would not be returning to work and to request his P45. The complainant then sent two letters in which he specifically stated that he was resigning from his employment. In evidence he said that the respondent had told him to send in a letter in relation to resigning and getting his P45. If the complainant’s employment had already been terminated this would not have been necessary. In addition, the complainant stated in evidence that he had decided that he would not be able to stand behind a counter for 8 hours a day but that he would be fit to commence driving a taxi. He did not therefore have any discussion with the respondent as to special accommodation regarding working in the store. The complainant started driving a taxi in July 2018.

On the basis of the evidence before me I find that complainant voluntarily resigned from his position of employment with the respondent on 12 July 2018. I accept that the respondent should have issued the P45 form when requested and should have ensured that a copy be sent to the complainant. This, however, does not change the fact that the complainant decided of his own free will not to return to working in the store and to take up an alternative occupation instead. I am satisfied that the P45 was issued in October 2018. The P45 form is a taxation form and is not proof of when (or indeed sometimes, if) a termination of employment took place.   I find therefore that the complainant’s claim of unfair dismissal is not well founded.

Complaint no. CA-00023884-001:

For the reasons stated above I find this complaint not to be well founded and it therefore fails.