Complainant

Respondent

Anonymised Parties

A General Builder

A Building Contractor

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-00017978-007

07/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act, 2015

CA-00017978-008

07/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act, 2015

CA-00017978-009

07/03/2018

The complainant was employed by the respondent as a General Builder from December 2012 until 22nd September 2017. The complaint relates to alleged unfair dismissal and the non-payment of minimum notice entitlements.

The respondent denies that the complainant was dismissed. The respondent stated that the complainant had completed one week of working from 3pm-11pm as part of a fire proofing contract at a school. A requirement of the contract was that the work be completed outside of school hours. The respondent stated that prior to commencing the second week of working 3pm-11pm the complainant telephoned his employer on 24th September 2017 and stated he was not prepared to work that shift as it was at variance with his contract of employment and had affected his sleep pattern and his health generally. The respondent stated that the complainant could have returned to his normal hours of work but that it would take a number of days to make the necessary arrangements. The respondent stated that the complainant was asked to attend at 3pm on 25th September 2017 to discuss his concerns but he did not do so. The respondent stated that the complainant had previously walked off site but had returned after a number of days and matters were resolved. On this occasion, the respondent stated that the complainant did not return and did not engage at all. The respondent stated that the complainant had not returned to work and had not been in contact since 24th September 2017, so the Managing Director of the respondent telephoned the complainant on 12 October 2017 in an attempt to resolve the complainant’s issues. This proved unsuccessful and there was no further contact between the parties. The respondent stated that when the complainant had not made contact by January 2018, the respondent wrote to him and discharged any outstanding payments that were due.

The complainant stated that he had worked for the respondent since 2012 and had originally been employed as a general builder. The complainant stated that working the 3pm-11pm shift on the fire proofing contract had caused health difficulties and had also affected his sleep pattern. The complainant stated that he informed the respondent by telephone on 24th September 2017 that he was not prepared to work the 3pm-11pm shift for the reasons stated and sought a return to his contractual hours of 8am-5pm. The complainant stated that the respondent told him that this could not be facilitated as there was only a requirement for Bricklayers on the earlier shift. The complainant stated that he then received a letter from the respondent in January 2018 confirming his resignation in September 2017, which the complainant said never took place. The complainant stated that he was dismissed by the respondent’s letter of 19th January 2018. The complainant is seeking compensation in relation to his complaint.

The matter for consideration on this complaint initially is to establish if a dismissal actually took place as claimed by the complainant. It is clear that the parties had worked together for a number of years without issue and I note the respondent’s commitment at the adjudication hearing that it would provide a reference to the complainant without delay.

Although the parties are in dispute in relation to some issues, it is not disputed that the complainant did not make contact with the respondent between 24th September 2017 and the respondent’s telephone call to him on 12th October 2017. On 24th September 2017, the respondent had asked the complainant to attend work at 3pm the next day to discuss his issues of concern. The complainant did not attend work on 25th September 2017 and did not make any further contact. It was the respondent who telephoned the complainant in October 2017 and was unsuccessful in resolving the issues between them. After that phone call there was no further contact, and the respondent wrote to the complainant in January 2018 discharging all outstanding entitlements that were due.

Having given careful consideration to the submissions and evidence of both parties at the adjudication hearing, I conclude on balance that by virtue of not attending work on 25th September 2017 and making no further contact with the respondent that the complainant resigned from his position and was not dismissed. Accordingly, the claim of alleged unfair dismissal cannot succeed.

Having considered the submissions of both parties, I find that as the complainant resigned from his employment, the complaint of alleged unfair dismissal is not well founded.

The complainant is seeking payment in lieu of his notice entitlements on the basis that he was dismissed by letter dated 19th January 2018.

The respondent’s position is that the complainant was not dismissed but resigned when he did not attend work on 25th September 2017 and made no further contact with the respondent.

The matter of the termination of the complainant’s employment has been adjudicated on in Complaint Application CA-00017978-007. The decision in that complaint stated that the complainant resigned and was not dismissed. In those circumstances, the entitlement to notice does not arise.

Having considered the submissions of both parties, I declare that the complaint is not well founded.

The complainant’s notice entitlements were adjudicated on in Complaint Application CA-00017978-008 above. Accordingly, this complaint is dismissed.

As this complaint is a duplication of Complaint application CA-00017978-008, I declare that this complaint is not well founded.

Unfair Dismissal, Minimum Notice entitlements