Complainant

Respondent

Anonymised Parties

A Production Assistant

A Vegetable Processing and Packing Company

Representatives

Marius Marosan

HR Manager 

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-00038459-001

30/06/2020

The complainant commenced employment with the respondent on July 4th 2016. His job mainly involved washing and peeling potatoes.   He was contracted to work 40 hours every week, but he said that he generally worked for 42 hours. He earned €11.50 per hour.

When he started working with the respondent in 2016, the complainant worked from 6.00pm to 4.00am.   In January 2018, he moved to a start time of 8.00am and in 2019, his hours changed to 4.30am until 1.30pm. From the commencement of the Covid pandemic at the end of February 2020, the complainant’s start time reverted to 8.00am.   On March 19th, he was laid off from work for three months. When he returned to work on June 19th, the complainant said that he couldn’t start at 4.30am, because his colleague who used to give him a lift had left.   He wanted to start at 8.00am, but this was not acceptable to the company. On June 24th, following a discussion with the HR assistant, he resigned. He claims that he was forced to resign and that, in reality, he was dismissed.

At the opening of the hearing, the HR manager read a submission on behalf of the respondent.   This included a copy of a clock-in record showing that, following the period of lay-off that commenced on March 19th 2020, the complainant attended work on Monday, June 15th, starting at 8.00am. His next day at work was Friday, June 19th, when he started at 10.13am. The following week, the complainant attended on Monday, Tuesday and Wednesday, June 22nd to 24th, and he started work at 8.00am, 7.48am and 8.15am respectively. On the Wednesday, he was advised by his supervisor that his start time was 4.30am.   The complainant said that he couldn’t make it into work at that time and the supervisor sought assistance from the HR department.

Around 10.00am on the same day, a meeting was arranged with the HR assistant. The complainant attended with the supervisor who, like him, is from Romania. The supervisor translated the proceedings for the complainant. The complainant said that he couldn’t come in to work at 4.30am because public transport wasn’t available at that early hour. He said that he used to come to work at 8.00am and he wanted to revert to that start time. The HR manager explained that, with the recent lifting of the Covid restrictions, the business was under pressure to fulfil demand and that all the potato team had gone back to the 4.30am start. The complainant responded that he would stop working for the company and that he would resign. The HR manager said that she advised the complainant that his contract of employment provides that the company has the right to determine his hours of work and, with reasonable notice, to change the hours. She told the complainant that she didn’t want to lose him, but that there wasn’t an alternative role where he could start at 8.00am. The complainant confirmed that he wished to resign, and the respondent’s note of the meeting records that he asked the supervisor, in Romanian, “Why don’t you leave me on the Covid payment?”

The HR manager said that she went to her office and printed out a resignation template form, which the complainant signed. He left work that day, without working his notice.

At the conclusion of her written submission, the HR manager said that they were sorry to lose the complainant and that they would welcome him back to work if he wishes to withdraw his resignation. They are unable to facilitate his request to start work at 8.00am.  

The Respondent’s Evidence

The HR manager joined the company after the complainant resigned and the HR assistant was responsible for people issues in June 2020. In her evidence, the HR assistant said that, in the middle of February 2020, at the beginning of the Covid pandemic, the requirement for prepared vegetables reduced due to the fact that people were not going to restaurants.   The complainant’s start time was changed from 4.30am to 8.00am.

When he returned to work on June 19th 2020, the complainant was expected to return at 4.30am, and it was only after a few days that the production manager noticed from his clock card that he was coming in at 8.00am or later. The complainant’s supervisor spoke to him on June 24th and this was followed by a meeting with the HR assistant at which his supervisor translated for him. The HR assistant recalled that the complainant said that he couldn’t come to work at 4.30am and that he said, “if I can’t come in at 8.00am, I want to resign.” The HR assistant said that she told the complainant that she didn’t want him to leave, and that if he intended to resign, he would have to confirm his decision in writing. She went to her office to get a template letter and when she returned, she said the supervisor translated the letter and that the complainant then signed it.

When she was asked by Mr Marosan why the template resignation letter makes no mention of the reason the complainant resigned, the HR assistant said that she would have had no problem if the complainant had sent her an email confirming his decision to resign, but that he opted to sign the template form. This simply confirms the complainant’s decision to resign.

Regarding the difficulties the complainant had with the early start, the HR assistant said that around 30 employees start work in the company at 4.30am. If the complainant had told her that he hadn’t got a lift to work, she could have identified someone to give him a lift. At the meeting, he didn’t ask if there was someone who could give him a lift.

On behalf of the complainant, Mr Marosan provided a written submission in which he set out his case that the complainant was dismissed and that his dismissal was unfair.   He said that the complainant signed a resignation document without knowing what he was signing.

Until February 16th 2020, the complainant started work at 4.30am, travelling to work with a colleague who had a car. On February 17th, the start time of his shift changed to 8.00am and this continued until the beginning of the “lock-down” on March 19th. When the complainant returned to work in June, he started work at 8.00am, but on the third day, he was informed that his start time had reverted back to 4.30am.   The complainant’s colleague was no longer working in the company, and he had no way of getting to work for 4.30am.

Mr Marosan said that the complainant was requested to attend a meeting “on the spot,” without a trusted colleague to translate for him. He said that, whatever occurred at the meeting, the complainant, whose first language is not English and who has no knowledge of employment law and who was not represented, attended a meeting regarding changes that his employer wished to impose. Mr Marosan referred to the Labour Court case of Wasim Haskiya v Keelings Retail Unlimited Company, UDD 2023. In this case, the Court concluded that a waiver document signed by Mr Haskiya when his job was made redundant was not based on free and informed consent, because he had not had an opportunity to seek advice before he signed it. Mr Haskiya’s dismissal was found to be unfair.

Summarising his concerns regarding the complainant’s treatment, Mr Marosan made the following points:

The complainant was not given any alternative starting time options, even though there were other shifts that started after 4.30am.

The outcome of the meeting on June 24th was pre-empted, due to the preparation of a resignation letter.

The complainant felt pressurised to sign the document. He tried to have a line inserted to explain the reason for his resignation, but this was not permitted.

Fair procedures were not followed, because the complainant was invited to a meeting without notice and without representation.

While the company claims in its submission to the WRC that the complainant was a valued member of staff and that he would be welcome back, no effort was made to facilitate his return to work and he was not offered an alternative shift at a more suitable starting time.

Evidence of the Complainant

The complainant said that when he started working for the company, he used to start at 8.00am, but that when the production moved to a new building, his start time changed to 4.30am. This occurred some time in 2019. He said that he used to get a lift from a colleague, but that person did not return to work after the Covid closure. When he was informed that work was starting up again on June 19th, the complainant said that he was told to come to work at his “normal time” and he took this to mean 8.00am, which was the time he started at before the closure.   He said that he was late on occasion, because he had to get the bus, which wasn’t on time.

Regarding the meeting that took place on June 24th, the complainant said that he didn’t insist on the meeting, and that his supervisor brought him to meet the HR assistant. He said that he didn’t ask if there was anyone who could give him a lift. He said that his supervisor insisted that he sign the resignation form and that he thought he was dismissed

At the hearing, I explained to the complainant that the respondent was open to him returning to work and I asked him if he would like to go back. However, after considering this option for a few minutes, he said that he doesn’t wish to go back.

Conclusion

The complainant worked for the respondent for almost four years, and was a good employee. On June 24th 2020, he was asked to sign a resignation letter instead of being offered alternative options regarding his starting time. At the meeting at which he resigned, he was not offered proper representation, he was not informed in advance about the meeting and he was not told that he could seek advice regarding his options. Mr Marosan alleges that the company took advantage of the complainant’s poor English and made him sign a resignation letter that was prepared in advance.  

Was the Complainant Dismissed?

As there is a dispute between the parties concerning whether the complainant resigned or was dismissed, I must first examine the evidence and reach a conclusion on that matter.

For the complainant, Mr Marosan argued that the meeting on June 24th was effectively a disciplinary meeting, and that it took place without notice and without the complainant having an appropriate representative who could translate for him.   His case is that the complainant was forced to resign. The respondent’s case is that the meeting was held with the complainant to clarify his start time and that he said that he was unable to come to work at 4.30am and he would resign if the company didn’t allow him to start at 8.00am.   There was some suggestion on the respondent’s side that the complainant asked for the meeting, but I find this difficult to accept, particularly in view of the note submitted by the HR assistant in which she stated, “I requested to speak with (the complainant) with the help of (the supervisor) acting as a translator.”

Having considered the evidence of both parties on this particular matter, I am satisfied that what occurred on June 24th was that the production manager, discovering that the complainant was coming to work around 8.00am since June 19th, asked the supervisor to tell him that he was to start at 4.30am. When the complainant informed the supervisor that he couldn’t come in at 4.30am, the supervisor asked the HR manager to speak to him to explain the requirement to come to work at that time.   The three met around 10.00am on June 24th and the complainant repeated his position that he could not come to work at 4.30am and that he would resign if the company insisted. Following some discussion about the fact that he came to work previously at 4.30am and that his contract of employment provided that his start time could be changed by the company, the complainant stood his ground and repeated that he wanted to start at 8.00am. When the HR assistant confirmed that his start time would not be changed, the complainant said that he wanted to resign. The HR assistant went to her office and printed what she referred to as a “resignation form,” which the complainant signed. The form states:

“I (name of complainant) wish to formally resign my position in (name of the respondent). My last day of employment will be on 24.06.20.”

Findings

It is my view that the production of the “resignation form” by the HR assistant was unnecessary.   While the intention appears to have been to ensure that there was a written record of the complainant’s decision to resign, when such a document is drafted by an employer, it can only lead to ambiguity regarding the employee’s intention. Regardless of the uncertainty that a verbal resignation might create, a letter of resignation should only be written by an employee and it should not be written in the presence of management.

I note Mr Marosan’s reference to the case of Haskiya v Keelings and the finding of the Labour Court that Mr Haskiya was not properly advised of his entitlements before he signed a settlement agreement.   It is my view that the complainant’s circumstances are not reflective of that case, because the objective of Mr Haskiya’s employer was to make his job redundant and to dismiss him. The document he was required to sign was complex and he could not have been expected to fully understand the contents.   In the case under consideration here, I am satisfied that the motivation to end the complainant’s employment was his own. The meeting on June 24th started out with the objective of persuading the complainant to return to his 4.30am start time, and it was not the intention of the HR assistant to dismiss him. I am reassured of this position because there was no mention of any problem with the complainant’s performance or conduct and it is difficult to recruit people do the work he was employed to do, and particularly difficult to find employees to start work at 4.30am. I am satisfied that the complainant intended to resign, and that he understood the text of the resignation form, which was translated for him by his supervisor. I am further reassured that the complainant was not dismissed, because on the day of the hearing, he was invited to come back to work.

From the time he joined the company in June 2016, the complainant’s start time varied from 6.00pm, to 8.00am and 4.30am. His contract of employment provided that his start and finish time may be changed with reasonable notice. From the evidence submitted at the hearing of this complaint, it is apparent that the complainant was unwilling to start work at 4.30am and that he wanted to revert to the 8.00am start time that applied before the lock-down in March 2020.  

I listened to the complainant at the hearing and I observed his demeanour in respect of his former employer. In response to my question about the possibility of finding another colleague to give him a lift to work, he was evasive. I heard from the HR assistant that around 30 employees start work at 4.30am and it is almost certain that the complainant could have arranged to meet one of these on his route from his home in "XXX" to his job in "YYY". I am certain that, while it is an onerous burden, the 4.30am start was not impossible.

It is clear to me that, quite understandably, the complainant was fed up working for the respondent and it was his intention to resign. It seems to me that the availability of the Pandemic Unemployment Payment (PUP) may have been a factor in this decision.

Conclusion

At section 22.13 of “Redmond on Dismissal Law,” by Dr Desmond Ryan, (© Bloomsbury 2017), Dr Ryan refers to the general understanding of dismissal:

“In general a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt dismissal was intended or that it may be reasonably inferred.”

It is my view that no argument can be made by the complainant that his employer “clearly and unequivocally” informed him that he was dismissed. The complainant initiated the discussion about resigning, and when this had no effect on his employer’s insistence that he start work at 4.30am, he continued on that course.

While the production of the resignation form was highly irregular, it is my view that it was the complainant’s intention to resign and that he would have resigned even if he had not signed the form. I am satisfied that he was not dismissed.

As I have concluded that the complainant was not dismissed, I decide that this complaint is not upheld.

Resignation, dismissal in doubt