ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00016266
Parties:
| Complainant | Respondent | |
| Anonymised Parties | A Worker | A Home Care Service provider |
| Representatives | The claimant represented herself | Adrian Harney , HR Consultant |
Complaints:
| Act | Complaint/Dispute Reference No. | Date of Receipt |
| CA-00021070-001 | ||
| CA-00021070-002 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 11 of the Minimum Notice and Terms of Employment Act , 1973 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015,] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Respondent’s Case:
| The respondent’s representative set out the background to the company and detailed the claimant’s career history with the company. It was submitted that the claimant submitted her resignation on the 3rd.Oct. 2017 and that she finished work on the 17th.Oct. 2017.It was submitted that the claimant did not have 12 months service and consequently was not entitled to the protection of the Act. It was further contended that the claimant ‘s complaint was not received until the 8th.Aug. 2018 and that consequently her complaint was out of time. It was submitted that the claimant’s service was most satisfactory and that it came as a great surprise to the employer that she wanted to resign on the 3rd.Oct. 2017 owing to family commitments. It was submitted that the respondent endeavored to persuade the claimant to reconsider her decision following receipt of her letter of resignation, but she had her mind made up. The claimant wrote to the employer on the 12th.Oct. seeking confirmation in writing of the date she finished up and stating that alternatively she would require her P45.The following day she sought her P45.The P45 was issued confirming the cessation of employment on the 17th.Oct. 2017. In late Feb. 2018, the respondent required short term cover and invited the claimant to apply but it was submitted that she was not available to be considered. In July 2018, the claimant contended by way of email that she was on a career break until February 2018 but was unable to work owing to an injury arising from a dog bite. It was submitted that the claimant did not submit any medical certs or complete any of the documentation required under the absence policy while on leave and that this supported the respondent’s contention that the claimant was not an employee of the company in Feb. 2018 or at any time since then. It was submitted there was no basis for a complaint under the Minimum Notice and Terms of Employment Act as she worked a 2 week notice period from the 3rd.-17th.October2017.It was further asserted that in any event the complaint was out of time.In a post hearing submission, it was asserted that the claimant had failed to produce any supporting evidence to substantiate her wish to have her resignation withdrawn. The claimant’s allegations that the respondent failed to respond to the claimant’s text messages and emails were challenged and refuted and it was submitted that the claimant could have sourced the emails lost from her phone if she wished to do so. It was reiterated that the claimant failed to comply with company policy in relation to illness absence and that this demonstrated that she did not consider herself to be an employee of the company.The respondent insisted that if he had given the claimant a career break he would have confirmed it to her in writing.The respondent submitted advice from an IT specialist on email retrieval and submitted that any gmails that were sent by the claimant were retrievable. |
Summary of Claimant’s Case:
| The claimant asserted that when she met the respondent on the 4th.Oct. 2017 to discuss her letter of resignation dated the 3rd.October 2017, the respondent offered to give her a career break as an alternative to resigning and informed her that because she was on career break she could continue to avail of her entitlements as an employee. The claimant asserted that it was a verbal agreement and when she discovered that she would need evidence for Social Welfare that she was not working, when she enquired about Social Welfare entitlements the following week, she wrote to the respondent as follow on the 12th.Oct. 2017: “HI ……………I will need that letter you said you’d write for me stating I’m not employed with ………… and the date I finished up, if you can’t do the letter I’ll need my P45 then…………. On the 13th.Oct. she wrote as follows “Good Afternoon ……could you send me my P45 please I’ll need it to sort money out when I’m off” The claimant submitted that the respondent did not reply and simply sent her her P45. She confirmed she was unavailable to work when approached by the respondent in Feb. 2018 as she had been attacked by a dog. She stated that she did not want to discuss this injury with her employer until after she met with her plastic surgeon on the 12.04.18. She asserted that following this appointment she emailed and texted her employer in April/May 2018 but received no reply. She submitted a copy of an email dated the 13.07.18 enquiring about returning to work – ultimately the respondent replied on the 23rd.July 2018 advising that the claimant had resigned from the company in Oct. 2017 to look after her child. The claimant asserted that at her meeting with the respondent on the 4th.Oct. 2017, she withdrew her resignation and the respondent undertook to confirm in writing that she was off for 4 months. She contended the respondent asked her was 4 months off enough and she was very happy with the arrangement.The claimant said that she had an issue with her phone and must have deleted a number of the texts she sent to the respondent and that she was unable to retrieve the emails she had sent.The claimant asserted that she had never heard the term career break previously and would have not been familiar with it as a term of employment. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Preliminary Matter of Jurisdiction.
There was a complete conflict of evidence between the parties in relation to the exchange that took place on the 4th.October regarding the claimant’s ongoing employment. I acknowledge the claimant was unable to provide documentary evidence of having been granted a career break -this assertion was categorically denied by the respondent. Having considered the direct evidence of the parties and the ensuing emails from the claimant to the respondent on the 12/13th.October - which are open to interpretation - I find on the balance of probabilities that the claimant’s assertions are more credible than the respondent’s and accordingly I am satisfied that she was granted a career break for 4 months - 4th.October – 4th.February 2018.No evidence was provided of any ongoing engagement with the respondent after this time up until July 2018.In these circumstances , I must conclude that her employment ended on the termination of the career break on the 4th. February 2018.
The claimant’s complaint was received by the WRC on the 8.08.18. As the claimant did not advance reasonable cause for the delay in making the complaint, I find the complaint is out of time and I have no jurisdiction to investigate the matter.
Section 11 of the Minimum Notice and Terms of Employment Act 1973 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Preliminary Matter of Jurisdiction.
There was a complete conflict of evidence between the parties in relation to the exchange that took place on the 4th.October regarding the claimant’s ongoing employment. I acknowledge the claimant was unable to provide documentary evidence of having been granted a career break -this assertion was categorically denied by the respondent. Having considered the direct evidence of the parties and the ensuing emails from the claimant to the respondent on the 12/13th.October - which are open to interpretation - I find on the balance of probabilities that the claimant’s assertions are more credible than the respondent’s and accordingly I am satisfied that she was granted a career break for 4 months - 4th.October – 4th.February 2018.No evidence was provided of any ongoing engagement with the respondent after this time up until July 2018.In these circumstances , I must conclude that her employment ended on the termination of the career break in February 2018.
The claimant’s complaint was received by the WRC on the 8.08.18. As the claimant did not advance reasonable cause for the delay in making the complaint, I find the complaint is out of time and I have no jurisdiction to investigate the matter.
Workplace Relations Commission Adjudication Officer: