Worker

Employer

Anonymised Parties

Chef

Public House

Representatives

  No attendance

 Martin McMahon

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969(as amended)

CA-00046273

16/09/2021

This a dispute brought by an employee on the basis of his claim that he was constructively dismissed He had less that twelve months service.

While the dispute was properly referred by the employee under the Industrial Relations Act, an error was made in the WRC in that a twenty-one days’ notice of the right to object to a hearing by an Adjudication Officer did not issue to the employer as required. As this error was noticed very late, it was decided to convene the hearing with a view to explaining the situation to the parties and giving the employer the opportunity to await a twenty-one days’ notice or agree to accept notice on the day of the hearing And to proceed with the hearing of the dispute. This was all explained to the employer on the day and he decided to accept the notice of his rights on the day and to waive any objection to the case being heard.

The employee did not attend on the day. Contact was made by the host of the hearing by telephone as no previous contact had been made when the link was sent out. The complainant said he thought the notice must have gone to his junk mail. He was not in a position to proceed and explained that a member of his family was in hospital. The employer said he too had serious health issues but had made the effort to attend and he wanted the hearing to proceed.

I am satisfied that a notice of the hearing was properly issued to the employee and, given the efforts made by the employer to attend I have decided to issue a recommendation.

The employee worked as a chef with the employer from July to September 2021. He last worked on 5 September 2021. On 6 September he had to go to his doctor and rang a named manager and informed her of his situation, that he would probably have to go to hospital. Later that day there was a phone call from the employer and that phone call became the subject of texts between the employee and the manager with the employee objecting to what was said in that call while he was on his way to A and E and wanting it ‘sorted’. The employer said this would have to be in discussed in person whereas the employee replied that he could not attend a meeting as he was out sick until further notice and had sent in a sick cert to this effect. On 12 September he informed the employer in a text that he would be referring the matter to the WRC.

The employer’s case is that the employee was not dismissed and was not taken off the payroll. He was seen working in Tesco in October.

It should be noted that I could simply have issued a no attendance recommendation in this case. However, there is a matter which I feel does need to be addressed and it will be up to the employee whether he wishes to pursue the matter further by way of an appeal. It should also be noted that I did not engage in the detail of the telephone conversation which led to the dispute-one clearly happened which the employee objected to for the reasons which he set out in texts to the employer between September 6 and 12 2021.

Allowing for the fact that the employee was not present to argue his case I feel obliged to observe that at no stage did he resign and neither did he say he would no longer be working for the employer-until he himself sent a message in December saying he should have been taken off the payroll. His texts in September continued to refer to wanting the issue to be sorted-even when he was saying ‘do you think I will go back into a workplace where I was called and spoken to…this needs to be sorted…!!!’ At all times in his response, the employer was agreeing to discuss the matter as was the correct approach-rather than engaging with someone while they were out sick until further notice, by text or email. It was the employee who would not accept this response, insisting on an email or text.

The employee had a grievance-this is clear from his texts. But that is not the same as saying the employment relationship was ended by him and therefore that he has a case for constructive dismissal, as there was no dismissal.  My recommendation is made on this basis.

Dispute-constructive dismissal