ADJ-00017702

Complainant

Respondent

Anonymised Parties

A Retail Assistant

A Health Supplements Retailer

Representatives

Tara Murphy BL instructed by McGuigan Solicitors

Flanagan Solicitors

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-00022849-001

25/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00022849-002

25/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00022849-003

25/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00022849-004

25/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00022849-005

25/10/2018

The complainant had worked with the respondent in its city centre retail outlet between October 2nd 2017 and October 5th 2018.

He was paid €525 for a thirty six hour week.

The complainant says that he regularly worked in excess of his contracted hours and that it was generally an average of forty-two hours, Monday to Saturday.

He was not provided with daily and weekly rest breaks, or his public holiday entitlements.

He also says that the circumstances in which his employment came to an end represent unfair dismissal.

The background to the case lies in the complainant’s attempts to get a specific day off; Saturday, October 6th. This was to enable him to attend an event which had particular significance for him and his partner who was participating in the event.

He says he raised this initially in June, and then again in September.

At that point he was told that it would not be possible to have the day off, as he was needed to provide cover in the shop. On September 23rd he raised the matter again but was again refused, in the complainant’s view, unreasonably, as he had offered to do extra work to compensate for his absence, and the shop had operated previously with such a reduced level of cover.

On the day before the requested day off, the respondent handed the complainant a letter stating that the respondent was accepting the complainant’s resignation, and that he would not be required to work the rest of his notice period.

Regarding the alleged dismissal the respondent says that the complainant threatened to resign on a number of occasions if he was not given the day off on October 6th.

It was first raised at the end of August, and again on September 14th. On both occasions the respondent stated that it was unlikely that he could have it off but that it would be considered further.

On September 23rd, when it was raised again he was told that he could not have it off.

He raised it the following day with another director, and again stated that if he did not get the day off he would resign.

On October 5th, (the day before he wanted the day off) the complainant told the respondent that he would be taking the day off whether it was approved or not.

The respondent prepared a letter of resignation and invited the complainant to sign it, which he did, but only after the complainant had again threated to resign and asked whether he should hand in a letter of resignation.

The respondent says that only following this did it prepare a letter for the complainant to sign, giving effect to the resignation.

Regarding the complainant’s hours, and various complaints under the Organisation of Working Time Act the respondent says that his basic hours were extended by agreement from thirty-six to forty-two.

The respondent denies that the complainant was not facilitated with breaks. The complainant is a competitive body builder and it was agreed with the respondent that he would take several short breaks during the day to suit his dietary needs. This would involve twenty-minute breaks at various stages during which the complainant was free to leave the premises.

In fact, the parties had a very good relationship and the respondent paid a deposit on the complainant’s apartment and lent him a car on various occasions.

There was no requirement to work overtime. When the complainant was offered overtime, he accepted it willingly; indeed, he sought it on a regular basis.

At no stage in the course of his employment did the complainant raise any grievance about any aspect of his working hours.

The respondent accepts that the complaint related to public holiday entitlement is well founded.

As is often the way in cases of dismissal the key facts are not in dispute.

It will be clear from the narrative above that the event for which the complainant sought the day off was of great significance to him (and his partner), and that he had been seeking to get approval for it for quite some time.

It is also clear, from the complainant’s submission at the hearing, the complaint form and the respondent’s evidence that he threatened to resign on more than one occasion if he was not facilitated with it.

Specifically, when faced with his employer’s refusal in September it is accepted that he told one of the Directors that he would resign, although he says that he was then promised a review.

This brings us to October 5th; the day before the event. The complainant was working that day from 10.00 to 19.00.

His submission states that ‘the day passed without event until closing time when [the director] without consultation, notice or warning, handed the complainant a letter [which] indicated that the respondent was accepting the complainant’s resignation effective immediately….’

The respondent offers a different view.

It asserts that the complainant had threatened on two previous occasions that he would resign if he did not get the day off, and did so again on that day, and that the letter of resignation was some sort of attempt by the respondent top regularise matters.

Faced with these divergent accounts, I find the latter more persuasive. Given the admitted significance of the following day to the complainant the representation of it that ‘the day passed without event’, if that means that the matter was not raised between the parties is most improbable.

In relation to the general issues in the background, much was made of the merits of each side’s case in relation to the need for the day off.

On the one hand this implies that an employee has some sort of right to a day off depending on the merits of why he is seeking it. That is not the legal position and the decision on time off is ultimately a matter, under the legislation, for the employer.

Given that, how is the alleged unreasonableness of the employer to be assessed. While there seemed to be no insuperable barrier to granting the day off, ultimately the respondent decided not to do so. On the evidence, there seemed no good reason not to do so but that is beside the point.

A simple resignation in such circumstances would be unlikely to meet the demanding burden of proof set by the authorities in constructive dismissal cases, however unreasonable the employer’s position appears to be.

However, the complainant’s representative was at pains to point out that there was no resignation in this case and that the complainant was dismissed.

It relied on the decision of the Employment Appeals Tribunal in Michael Cafferky v Monarch Services Ltd UD932/1998. The EAT in that case relied on the dicta in Sothern v Franks Charlesly & Co [1981] I.R.L.R 278.

‘The English Court of Appeal has decided that in the normal cAse if unequivocal words of resignation are used the employer is entitled to immediately accept the resignation and act accordingly, it was clear from observations made in that case there may be exceptions. These include cases of an immature employee, or of a decision taken in the heat f the moment, or of an employee being jostled into a decision by employers (per Fox LJ). The also apply to cases where idle words are used under emotional stress which the employers knew or ought to have known were not meant to be taken seriously. There is therefore a duty on employers in an appropriate case to take into account the special circumstances of an employee’.

The complainant submits that he did not use ‘unequivocal words of resignation’, but conditional words to the effect that ‘he would have to resign’ if he did not get the day off.

Or, he submits, if they were unequivocal, then the respondent should have accepted them earlier.

If, as the respondent claims, the letter was to formalise the position this was a rather odd, and indeed hazardous thing for it to do. It could just as easily have insisted on the complainant actually submitting a written resignation.

This is what the letter stated;

To [the complainant]

I regret to inform you that we need to accept your resignation as a sales assistant effective from today, as of 05.10.2018.

As your verbal notice were given on 23.09 2018 to [director A] and on 23.09.2018 to [director B] we have no intension [sic] to ask you to work the rest of your notice period.

All outstanding salaries, and holidays will be paid in coming days with your P45.

This falls short of what is required by some distance.

The reference to the ‘verbal notice’ on the September dates is totally disingenuous and self-serving; no action was taken by the respondent on that purported notice on those dates nor at any time subsequently. Likewise, while the complainant may have repeated the threat on October 5th this was an entirely unacceptable format to use.

Had the respondent drafted the letter of resignation and offered it to the complainant for signature that might have been a different matter. But, in the event the ultimate prime actor in actually effecting the termination here is the respondent, and not the complainant.

Therefore, the decision turns on this final act of communication between the parties; not the merits of the complainant’s case for the day off, or the unreasonableness of the respondent’s refusal to agree to it, but the manner in which the termination was ultimately effected by the respondent.

The onus under the Unfair Dismissals Act to prove that a dismissal is fair falls on the employer. In this case the respondent has failed to discharge that burden of proof and the actions as set out above render the dismissal unfair although I must take some account of the complainant’s contribution to it.

Complaint CA-00022849-002 under the Minimum Notice Act therefore also succeeds

Regarding the complaints under the Organisation of Working Time Act, I accept that the complainant was facilitated with breaks as agreed by the parties and therefore I do not uphold CA-00022849-003.

Likewise, it was accepted that the complaint related to the extended period of working in September/October 2108 did occur and I uphold complaint CA-00022849-004.

The complainant’s entitlement to three outstanding public holidays was not disputed and that complaint (CA-00022849-005) succeeds.

For the reasons set out above I uphold Complaint CA-00022849-001 and award the complainant €2,500.

I also uphold complaint CA-00022849-002 and award the complainant €525.00.

I do not uphold CA-00022849-003 and it is dismissed.

I uphold complaint CA-00022849-004 and award the complainant €525.00

I uphold complaint CA-00022849-005 and award the complainant €315.00.