ADJ-00030795

Complainant

Respondent

Parties

Thomas  Madden

John Madden

Representatives

Deborah Leonard Paul Brady & Co Solicitors/ Mr Aaron Shearer BL

 John Madden

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-00041116-001

18/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00041116-002

18/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00041116-003

18/11/2020

The complainant commenced work with his nephew in 2011 on a  part time basis. His nephew had opened a vegetable shop and he helped in the store and also to make deliveries. In time his hours expanded and while he worked a full  Saturday on the first week, every second Saturday he only worked a half day. Like a lot of businesses, the pandemic had a very negative impact on his nephew’s business as he supplied restaurants and hotels and that sector was badly hit with the Covid public health regulations. That in turn severely impacted on trade. The complainant ,primarily due to Covid and its impact on  the business, was not at work from March 2020 and was in receipt of the PUP payment. On or about the 9th of June 2020 his nephew contacted the complainant and called to his house where he informed his uncle that he had some work available; however, he would need his uncle to work every Saturday for the full day and not take a half day every second Saturday. There is a difference in recollection between the parties concerning the exact details of this conversation. Both parties accepted that there was never any falling out between them until June 2020. There is a dispute between the parties about whether the complainant stated he would look for another job and didn’t wish to return to work as the new proposed hours didn’t suit him or he was given an ultimatum that he could not return to work unless he agreed to those hours.

The complainant states that his nephew insisted that he work all day every Saturday and that it was non-negotiable. He wasn’t willing to give up his half day every second Saturday. By chance when he was speaking to social welfare about his  pandemic unemployment benefit he was told that his P45 had been completed online on the 10th of June 2020. He subsequently learnt that his nephew had hired someone else in his place who was working similar hours to what he done previously. He states he received no notice, no holiday pay and he still had the keys of the shop and no one had asked for them back.  He had never received a written contract.

The respondent stated that his business went through a very difficult time mainly because of the pandemic and the negative impact it had on businesses such as restaurants and hotels who he supplied. That meant he had to lay off his uncle in March 2020 and when the business began to pick up he went to see him about returning and working every Saturday. He hadn’t enough work to bring him back to his old schedule but he had enough work for about 2 days which would require him to work every Saturday as this was the busiest day. Under the previous work pattern his uncle only worked for a half day every second Saturday. He believed he had a good  relationship with his uncle and when he spoke to him on the 9th of June he believed that his uncle didn’t want to return for the hours that were available and gave him the impression that he would get work somewhere else that would suit him better.

CA-00041116-001 Unfair Dismissal

This is a very difficult case concerning two relatives who had worked together for several years on good terms.

The fact is the pandemic created very difficult conditions for both the employee and the respondent in this case.

Under oath the employee accepted that he had been treated well by his nephew as his employer. The respondent stated that he continued to have good relations with the complainant.

The employee when asked at the hearing would he have worked the hours proposed by his nephew on the 9th June; was reticent as he believed they were not required to be worked.

The employee stated that he never said he would look for a more suitable role. That is the impression that the respondent had and that the employee actually said he would look for work where he didn’t have to work every Saturday.

The evidence on the balance of probabilities confirms that the employee was not going to work the hours being made available and didn’t want to work those hours. The question remains did he resign or was his contract terminated.

There is nothing in the interactions between the employee and the respondent that revealed unfairness and a lack of consideration. In fact at the earliest possible time the employer contacted the employee to provide work.

Section 1 of the Unfair Dismissals Act 1977 as amended defines dismissal as:

“ 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,

( b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

( c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

The Employee alleges that his contract was terminated; however, that fact is in dispute.

Redmond on Dismissal Law 3rd Ed, at chapter 22 states:

Where unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, generally it is safe to conclude the employee has resigned. The contract is terminated in accordance with its terms and as there is no repudiation, acceptance is not required by the employer. However, context is everything. A resignation should not be taken at face value where in the circumstances there were heated exchanges 28 or where the employee was unwell at the time. The intellectual make-up of the employee may also be relevant.

On the facts the employee did not want to work the hours on offer. It is highly likely in this situation that an employee would look for alternative work. This is an employment relationship without rancour. On the balance of probabilities I prefer the evidence of the respondent employer, for the reason that the employee did not wish to work the hours on offer and logically what flowed from that was a decision to look for alternative work.  On the balance of probabilities I determine the employee informed his nephew of his wish not to work those hours and to look for work elsewhere. I determine  based on that communication it was a valid resignation;  the P 45 issued the next day. I determine that the complainant was not unfairly dismissed as the termination arose due to a voluntary resignation.

CA-00041116-002 Minimum Notice

As I determine that a valid resignation occurred the entitlement to notice does not arise. The complaint is not well founded.

CA-00041116-003 section 7 of the Terms of Employment (Information) Act, 1994

The complaint was not provided with the information as set out in the Act concerning his terms and conditions. The complaint is well founded.

The Act provides for:

d ) in relation to a complaint of a contravention under change section 3 , 4 , 5 , or 6 , and without prejudice to any order made under paragraph (e) ] order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977 .

This is a small business recovering from the pandemic, in these circumstances I award 1 week compensation amounting to €335 gross for the failure to provide information to his uncle as set out in the Act.

CA-00041116-001 Unfair Dismissal

On the facts the employee did not want to work the hours on offer. It is highly likely in this situation that an employee would look for alternative work. This is an employment relationship without rancour. On balance I prefer the evidence of the respondent employer, for the reason that the employee did not wish to work the hours on offer and on the balance of probabilities I accept he decided to look for alternative work.  On the balance of probabilities I determine the employee informed his nephew of his wish not to work those hours and to look for work elsewhere. I determine  based on that communication it was a valid resignation;  the P 45 issued the next day. I determine that the complainant was not unfairly dismissed as the termination arose due to a voluntary resignation.

CA-00041116-002 Minimum Notice

As I determine that a valid resignation occurred the entitlement to notice does not arise. The complaint is not well founded.

CA-00041116-003 section 7 of the Terms of Employment (Information) Act, 1994

The complaint was not provided with the information as set out in the Act concerning his terms and conditions. The complaint is well founded.

The Act provides for:

d ) in relation to a complaint of a contravention under change section 3 , 4 , 5 , or 6 , and without prejudice to any order made under paragraph (e) ] order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977 .

This is a small business recovering from the pandemic, in these circumstances I award 1 week compensation amounting to €335 gross.

Unfair Dismissal-Resignation