ADJ-00032253

Complainant

Respondent

Parties

Roy  Farrelly

Petrogas Applegreen

Representatives

 Sherwin O'Riordan Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00042764-001

25/02/2021

The complainant was employed as a sales assistant in a service station. He had been employed from August 31st, 2018 until the date of the termination om February 21st, 2021. 

He complains that he was unfairly dismissed.

The respondent did not dispute the central elements of the narrative presented by the complainant in his complaint to the WRC (and which is set out below) although there were important matters of detail and emphasis omitted in that which are important to the case. 

The clear impression given to the respondent manager on the Friday of the incident was that the complainant would no longer be available for work. The complainant communicated the same information to an online group of employees by telling them that he was ‘standing himself down’ from nightshift. 

The manager then to make arrangements to cover the shift on Saturday night and it was a surprise when the complainant presented for work. 

When it became clear that the complainant did not consider that he had resigned his manager restored him to the roster. 

Despite agreeing to discuss the future arrangements for the complainant he flatly refused to do so and then unequivocally resigned. 

The complainant confirmed that he accepted that the detail of the text message communications between them and read at the hearing by the respondent were correct.

On the night of October 19th, the complainant says he was told that he would not be rostered on nights in the course of the following week and there would be some other changes to his roster. 

He said his normal shift is 11 pm to 7 am but that he was advised that significant changes were going to take place including a cut in his overall working hours. 

He texted his manager but was unable to get a reply and then he rang him. 

He says the manager said to him ‘if you do nothing your hours are cut’ by which he understood him to mean that this would be happening because his performance was inadequate. 

He worked his shift and went home when it finished but was so upset by the interaction with his manager that he could not sleep during the day and that evening was not in a fit condition to present for work. 

He contacted the respondent too say that he could not make it. 

The following night, which was Sunday, he presented for work and was told by a co-worker that he should go home and that that co-worker had been engaged for that evening shift. 

He also told the complainant that he understood that the complainant had resigned from his employment. 

The complainant went home and in a further conversation with his manager the following day he was told that he that there had been a misunderstanding about his resignation and that he should report for work the following evening; Monday. 

The complainant told his manager that he would do so subject to there being no change in his roster.

 The manager said that they could discuss that and that they would chat about it in the morning. 

The complainant confirmed that he declined to enter into any discussion of those hours as they were non-negotiable and told the manager that he was resigning there and then.

He stated; ‘Fine, I’m handing in my notice’.

The facts in this case are set out above and they were not in dispute in respect of the significant and relevant aspects of the case.

The respondent might have done better in relation to its communication to the complainant of its intention to reduce his hours if, as it saw it, his performance did not improve.

That said, in the course of a conversation with his manager the complainant clearly led him to believe that he would not be continuing his employment, and the complainant advised colleagues of the same.

However, it is the complainant’s actions after that which are decisive.

Admittedly, he appears to have been very upset at the news of a change to his roster to the extent that he could not attend for work on his following shift (Saturday).

He then did attend the following evening without any prior notice to the respondent which in the meantime had made alternative arrangements on the basis of the complainant’s resignation (as it saw it) on the Friday.

In fairness to the respondent, on learning of the complainant’s confusion, (or change of heart) it immediately got in touch to remedy the situation and told him to report for work on the Monday.

At this point the complainant seemed to believe he had acquired some bargaining leverage and said he would only do so subject to a guarantee of no change in his hours.

The respondent, to its credit again, said that this could be discussed on the complainant’s return to work.

It was at that point that the complainant stated, fatally for this complaint, ‘Fine, I am handing in my notice’.

There was no termination of his employment by the respondent; he resigned his employment.

Any deficit in the initial approach by his manager had been well mended by Monday morning, and the complainant had contributed in no small measure to the problem by his comments both to his manager and to his co-workers.

The complaint is not upheld.

For the reasons set out above complaint CA-00042764-001 is not upheld.

The complainant was not unfairly dismissed.

Unfair Dismissal, resignation