FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES: WOODIES D.I.Y. LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - KRZYSZTOF ANDRASZAK DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00028194 CA-00036212-001 Mr Andraszak, ‘the Complainant’, was a Team Leader with Woodies D.I. Y. Ltd., ‘the Respondent’. He commenced working for the Respondent in June 2006. On 10 December 2019 the Complainant received notice of his dismissal. He appealed that decision internally. On 4 March 2020, the Appeals Officer overturned the dismissal and imposed a lesser penalty. The Complainant advised the Respondent that he did not accept the decision and that he would be making a complaint to the Workplace Relations Commission, ‘WRC’. On 18 May 2020, the Complainant lodged a complaint under the Unfair Dismissals Act, ‘the Act’ with the WRC. An Adjudication Officer, ‘AO’, decided that the Complainant had not been dismissed, so the complaint was not well founded. The Complainant appealed to this Court. Preliminary Issue The Respondent states that the Complainant was not dismissed as the decision to dismiss was rescinded on appeal. A lesser sanction was imposed. Coverage of the Act applies when there is a dismissal. If there is no dismissal, the Court does not have jurisdiction to hear an appeal. Therefore, the Court decided to hear the parties on the question of whether or not there had been a dismissal as a preliminary matter, on the basis that if the Court determined that there had been no dismissal then it would not have jurisdiction to hear the substantive case and if it determined that the matter was properly before it, the substantive issues could be dealt with at a later date. Where dismissal is in dispute the burden of proof in establishing that there has been a dismissal rests with the party alleging unfair dismissal. Summary of Complainant Arguments On 10 December 2019, the Complainant was summarily dismissed. As a result of his contract being terminated, the Complainant lodged an appeal. On 4 March 2020, the sanction of dismissal was overturned and replaced with a sanction of demotion, transfer to another store and a new contract. This was unacceptable to the Complainant. A complaint was lodged under the Act with the WRC. The letter to the Complainant regarding his dismissal makes clear that he was dismissed from 10 December 2019 without payment in lieu of notice. Payment of salary ceased from that date and no payments have been received since from the Respondent. Summary of Respondent Arguments The Complainant’s actions regarding the Company’s discount policy were investigated. In the subsequent disciplinary process, his actions were deemed to warrant dismissal. In accordance with the Respondent’s disciplinary procedure, the Complainant was afforded the opportunity to appeal. He availed of this opportunity. The decision of the Appeals Officer was to overturn the decision to dismiss. This was replaced by a decision to demote the Complainant, to transfer him to another store, to give him a Final Written Warning to remain on his file for 12 months, during which time he would be excluded from earning company bonus. A new contract was sent to the Complainant. The Complainant wrote to the Respondent to say that this outcome was unacceptable to him and that he intended to issue a complaint to the WRC, which he did subsequently. At the time when he submitted his complaint, the Complainant had not been dismissed. He was re-instated as a result of the appeal but he chose not to accept that. He chose not to return to his employment. The Respondent regards him as having resigned. Unfair Dismissals Act 1977 “dismissal”, in relation to an employee, means— (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, Deliberation As this Court observed in the case of Boots Retail, (Ireland), Limited v Ms. Jacqueline Doyle, Det. No. UDD189; That an employee has been dismissed is a jurisdictional requirement under the Unfair Dismissals Acts.Before the Court can examine the fairness or unfairness of dismissal, it must be satisfied that the Complainant employee has been ‘dismissed’ in accordance with the Act. Where dismissal is in dispute, it falls on the Complainant to establish the fact of dismissal. In the instant case, there is no great dispute as to the facts. An initial decision to dismiss was taken by the Respondent. The Complainant availed of his right to appeal under the Respondent’s procedures. The appeal resulted in a reduced penalty. Subsequent to the appeal decision, the Complainant commenced proceedings before the WRC. It is self-evident that, at the time when the complaint was lodged, the Complainant had not been dismissed. In fact, to use the Respondent’s phrase, that decision had been expunged. Therefore, when the complaint was made, the terms of the Act were not applicable. One issue of concern for the Court is the fact that the Complainant has never been paid for the period between the initial decision to dismiss and the decision of 4 March that, in effect, re-instated him in the employment. This fact cast some doubt as to whether the Respondent truly believed that the Complainant had resigned or whether, in fact, they continued to regard him as having been dismissed. This also appears to be a breach of the Respondent’s own policies that commit to re-instating lost pay in such circumstances. Mr. David Nally, on behalf of the Respondent, explained to the Court that the Respondent was awaiting the Complainant’s return to work before making this payment, a requirement, which the Court is obliged to note, does not seem to exist in the Respondent’s procedures. However, while this required some scrutiny by the Court, ultimately the facts speak for themselves and the Complainant was not a dismissed employee when he lodged the complaint. That said, the Court did note with approval that Mr. Nally, for the Respondent, indicated a willingness, subject to advice from the Respondent’s representative, to pay the Complainant for the period in question at the appropriate Team Leader rate. As the Complainant had not been dismissed when he lodged his complaint, it follows that the Court does not have jurisdiction to consider an appeal under the Act. Determination The Decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
