ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00021699

Parties:

Complaint(s):

Date of Adjudication Hearing: 15/09/2020

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 or Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Issue

The claimant commenced employment with the respondent on the 14th September 2017. He worked 44 hours per week, and he was paid €500gross(€460net) per week. The respondent submitted that the claimant resigned his position and left employment on Friday 30th November 2018. This was disputed by the claimant who stated that he was dismissed from his employment.

Summary of Respondents position

The respondent submitted that on the 19th November the claimant returned to work from a two-week period of annual leave (5th November to 19th November) where he had visited his native country of Moldova.

On Monday 26th November 2018, the claimant approached the respondent’s production Manager with a colleague (named provided) who was acting as a translator. It was stated that the claimant requested more and immediate annual leave so that he could return home again to Moldova, as his apartment had plumbing issues. It was submitted that the claimant would not provide a return date for the annual leave request, this was declined by the production manager for the following reasons.

1. The claimant had just returned from a period of annual leave on 19th November 2018
2. The annual leave request was for an immediate commencement, which was not possible
3. The claimant would not provide an end date to the annual leave nor a return to work date
4. The respondent was approaching the Christmas period, and this is the busiest period for the respondent (as a pork processor, ham for Christmas), and others had already been approved where they had requested, in line with normal annual leave request procedures
5. The respondent stated that the claimant stated he would be returning home regardless. In response. the production Manager informed the claimant that his work would have to be covered, and asked the claimant to confirm his intentions, was he resigning. The respondent submitted that the claimant stated he was resigning, and he would be returning home, finishing after the end of that week
6. The 30th November was the claimants last day at work. On the 4th December, the claimant’s final payslip was issued
7. On the 16th April 2019, the claimant commenced an unlawful protest outside the respondent’s premises against another company, his then employer. The respondent and that company share a site (including entrance). When the issue with that company was resolved the claimant continued this protest but changed the target of same against the respondent, demanding that he be re -employed. The appropriate authorities had to be called to have the claimant removed from the area. This was the first time the respondent had seen or heard from the claimant since his resignation and the last day of work on the 30th November 2018.
8. The respondent submitted the refusal of annual leave was reasonable and appropriate for the respondent. The claimant could have used the respondent’s internal grievance procedures
9. The respondent stated that the claimant intended to travel home to Moldova regardless, and therefore his plans had already been made and were articulated to the respondent. The resignation was fully informed, clear, and unambiguous
10. When the claimant returned to Ireland, he did not challenge any final pay or cessation of employment. The respondent also submitted that consideration should be given to the delay in querying his alleged dismissal
11. The respondent also raised the claimant’s complaint form to the Workplace Relations commissions where he stated on it that “when I returned, I was told that my job was gone”
12. It was submitted that the claimant was employed by two different companies during the intervening period (between the 30th November and his return to unlawfully protest inside in April 2020)

Summary of the Claimants position

The claimant submitted that he had been dismissed without notice that he had not  resigned his position

The claimant was employed in the boning part of the plant. The claimant took holidays in July 2018 for 2 weeks and from Friday 2nd November and returned to work on the 19th November2018.

The union submitted that the claimant was asked to sign papers on the 30th November 2018   not knowing what he was signing and without being given the opportunity of getting advice.

The union submitted that the claimant was dismissed for reasons unknown and they are seeking reinstatement.

Findings

On the 21st October at hearing serious allegation were made by the claimant and the adjudicator decided that this matter should be investigated prior to the complaint being heard. The case was adjourned for re listing which took place on the 15th September 2020

At the hearing on the 15th September it was submitted that an investigation had been carried out and the union representative at the commencement of the hearing stated that these comments/allegations were now withdrawn.

I find there is no dispute between the parties that the claimant took annual leave from the 2nd November to 19th November 2018.

I find there is an issue between the parties was it a resignation or a dismissal.

I find that the respondent has a clear contract of employment along with grievances policies.

I find there is an onus on the respondent where they(respondent)should have asked the claimant for his resignation in writing or at the very least the respondent should have written to the claimant advising him that he had resigned his position and if they had not heard from him within a specific time frame they(respondent) would accept he had resigned they would forward his outstanding payments.

I find that claimant made no attempt to challenge the respondent’s assertion that he had resigned until April 2020 almost 5 months later.

I find based on evidence the claimant did work for other companies to reduce his losses

I find that the relationship between the respondent and the claimant has gone beyond repair and on that basis, I am making the following.

Decision:

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.

I find the dismissal unfair and I award the complainant €5000

Dated:   11/11/2020

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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