ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00027526

Parties:

	Complainant	Respondent
Anonymised Parties	Hostess	Food Outlet

Representatives

self

Owner

Interpreter : Lena

Complaint:

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-00035228-001	13/03/2020

Date of Adjudication Remote Hearing: 18/01/2021

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with 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.

Background:

The Complainant was employed as a Hostess/ Catering Assistant from 4th September 2006 to 20th January 2020. Her employment transferred to the Respondent company on 2nd December 2016. The Complainant was out sick before the transfer and never returned to work. No communication was received from the Complainant and she was removed from the employment record. The Complainant has claimed that she was unfairly dismissed. The Respondent has rejected this claim.

Summary of Respondent’s Case:

The Respondent stated that they took over the business on 2nd December 2016 under a transfer of undertakings. The Complainant had been out sick at that time, she has never physically worked for the Respondent company and they have never met her. They stated that they received medical certificates on a sporadic basis in December 2016, March, April, May and September 2017. There has been no communication since that certificate in September 2017.

The Respondent wrote to the Complainant on 27th May 2019 and 24th June 2019 requesting the Complainant to contact them. The letters stated, “If we do not hear from you by 7th June and then 12th July we will assume you are resigning your position and we will set you as a leaver in the next payroll”. The Respondent waited but got no contact from her and so removed her from the employment records on 20th January 2020. On 20th February 2020 the Complainant phoned the branch outlet and was very aggressive towards them.

It is their position that the Complainant failed to communicate with them since September 2017. They advised that they sent the letters to the address on their records. They were not advised of the change of address. There was no dismissal, they removed her from their records as they had no communication from September 2017 to 20th January 2020. This claim is rejected.

Summary of Complainant’s Case:

The Complainant confirmed that the last medical certificate was sent in September 2017. She stated that she changed address and called a number of times to the branch outlet but there was no manager on duty. She stated that she advised them of the change of address. She stated that the previous landlord told her that there were no letters there. She stated that she tried to contact the Respondent by telephone but could not get through. She was informed by the Revenue Commissioners that she was no longer employed by the Respondent. She has claimed that she was unfairly dismissed. She should have been given 28 days’ notice of termination. The dismissal was unfair and she has sought compensation.

Findings and Conclusions:

I note that the Complainant was absent due to illness before the transfer of the business to the Respondent.

I note that the Complainant supplied medical certificates for monthly durations in December 2016, March, April, May and September 2017.

I note that no further communication was received from the Complainant.

I find that the responsibility for maintaining communication rests with the Complainant.

I find that the Complainant failed to inform the Respondent of the change of address and so the Respondent could not be blamed for sending the letters in 2019 to the address on their files.

I note that the letters were presented to the Commission.

I do not accept the Complainant’s position that she called to the branch outlet on a number of times but could not get a manager, the Respondent advised that there is a total of 14 managers employed in that branch.

I find that the Respondent wrote to the Complainant on 27th May and 24th June 2019 requesting her to make contact with them including a telephone number, but she did not do so.

I note that the Respondent made it clear in these letters that if she did not contact them they would take it that she had resigned her position.

I note that the Respondent did not hear from the Complainant.

I note that the Respondent waited from June 2019 to January 2020 before they removed her from the employment list.

I note that the Complainant phoned the Respondent’s business in February 2020 but failed to make such a contact for over the two and a quarter years’ previous.

I find that the Respondent was reasonable in arriving at a conclusion that the Complainant had left the employment.

I find that the termination of employment was not unfair.

I find that this claim is not well founded.

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.

For the above stated reasons, I have decided that this complaint is not well founded and so it fails.

Dated: 9th February 2021

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words:

Termination of employment following absence for over two years and no communication