ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028333
Parties:
| Complainant | Respondent |
Parties | Renata Fabisiak | Anokato Limited Mulrooneys Gala Shop |
Representatives | Krystian Boino Hoban Boino Solicitors | Denise O Brien |
Complaints:
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-00036350-001 | 25/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00036350-002 | 25/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00036350-003 | 25/05/2020 |
Date of Adjudication Hearing: 08/04/2022 and written closing submissions up to 16 May 2022.
Workplace Relations Commission Adjudication Officer: Conor Stokes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings. The complainant and respondent gave their evidence under affirmation. An interpreter was provided by the WRC and took the interpreters affirmation. Both parties were given the opportunity to cross examine the witnesses. At the hearing, which was held remotely, as the parties were being invited to provide closing submissions, the respondent was disconnected abruptly. Accordingly, the parties were invited to submit written closing statements by 16 May 2022. Both parties indicated that they did not wish to add any additional closing statements, relying instead upon the submissions that they had made as part of their pre-hearing written submissions. The pay element of the complaint - CA-00036350-003 was withdrawn at the start of the hearing. |
Summary of Complainant’s Case:
CA-00036350-001 The complainant submitted that she was employed with the respondent as a baker from 11 May 2007 until 25 May 2020 when she submitted a letter of resignation. The complainant submitted that she was constructively dismissed from her position when she was the subject of unfair treatment in relation to wrong accusations, being left alone without management and owner support at the confectionary production, being subject to last minute roster changes, difficulties in obtaining annual leave, refused time off from work needed to assist husband as he had a surgery. The complainant submitted that she made complaints to her employer and that the Respondent failed to respond adequately to her complaints despite several promises being made over period of several months. The complainant asserts that the company’s failure to react to this complaint and provide her with a safe work environment based on trust confidence and appropriate relationships resulted in her inability to continue in their employ. The Complainant submits that there was no real effort to investigate her grievances although she was advised they will be fully investigated, and a decision would issue. The complainant provided written submissions regarding her efforts to find alternative employment and mitigate her losses between September 2019 and June 2020 when she secured part-time employment. CA-00036350-002 The complainant submitted that she was entitled to her annual leave for the period following her purported termination date until she submitted her resignation. |
Summary of Respondent’s Case:
CA-00036350-001 The respondent submitted that there was no dismissal in this case. The respondent also queried the timeframe within which the complaint was taken as it was not taken within six months of the period of termination date. The initial resignation tendered by the complainant was done so on the 11th of July 2019. The respondent submitted that this was a repeated cycle of events when the complainant would make a late submission for annual leave, she would tender her resignation in writing or verbally and later retract same after a period of sick leave whereby she would produce a cert for the already refused dates of annual leave and then return to employment. The respondent referred back to the regarding timeframes in that the employee confirmed her resignation on the 30th of August 2019 which is just 4 days short of 9 months from the date of her complaint (lodged on the 25th of May 2020) which she is now claiming is her official termination/leaving date. The respondent queried why, if this is the case, was the complainant in receipt of social welfare, after requesting and receiving all final entitlements owed to her by the company on the 30th of August 2019? The respondent suggested that this date of resignation was further backed up by a letter to the employer from Social Welfare asking for confirmation of the end date of her employment. This was filled out at the complainant’s request. The respondent submitted that the complainant cannot therefore state that she thought or assumed she was still employed by the company up to an including 25th May 2020. CA-00036350-002 The respondent submitted that it does not facilitate or invoke unpaid suspension at any level. The respondent submitted that the complainant was claiming jobseekers benefit after confirming her resignation on the 30th of August 2019 and then moved from Illness Benefit to Jobseekers benefit. The company was asked to confirm this information by Social Welfare and the complainant. The respondent submitted that therefore, it is not responsible for any payment of wages or entitlements owed during the period from 30 August 2015 until the complainant submitted her additional resignation and the claim on 25 May 2020. |
Findings and Conclusions:
CA-00036350-001 The complainant suggested that she resigned with effect from 25 May 2020. However, the respondent indicated that it had received a written resignation in June 2019. In addition, the respondent submitted that it had been informed by the Department of Social Welfare in or around the end of August 2019 that the complainant was seeking jobseekers benefit and had resigned her position. Evidence was given that there was a pattern of the complainant giving in her resignation only to withdraw it at a later stage when her non-attendance at work was covered by a medical certificate. This version of events is not disputed by the complainant. In all the circumstances, I am satisfied that the respondent was entitled to rely upon the written resignation followed up with confirmation by the Department of Social Welfare regarding the resignation. I find that no dismissal took place. Section 8(2) of the Unfair Dismissals Acts, 1997 states that (2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General— (a) within the period of 6 months beginning on the date of the relevant dismissal, or (b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause, As the resignation took effect at the end of August 2019 and the Unfair Dismissals Act, 1977 only permits complaints to be taken within six months of the date of termination of employment are allowed under the Acts. The complaint was lodged on 25 May 2020 and no reasonable cause was provided to extend that period. Therefore this complaint was not lodged within the timeframe set down in the Acts. Accordingly, I find that the complainant was not unfairly dismissed. CA-00036350-002 As regards the claim regarding non-payment of annual leave/holiday pay in lieu of annual leave, I am satisfied that as the complainant resigned on or before the end of August 2019, no entitlement to holiday pay has been established. Therefore, I find that the complaint under the Organisation of Working Time Act was not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00036350-001 Having regard to all the written and oral submissions in relation to this complaint, my decision is that the complainant was not unfairly dismissed. CA-00036350-002 Having regard to all the written and oral submissions in relation to this complaint, my decision is that the complaint is not well founded. |
Dated: November 15th 2022
Workplace Relations Commission Adjudication Officer: Conor Stokes
Key Words:
Unfair Dismissals Acts – resignation – not unfairly dismissed - Organisation of Working Time Act - resigned – no entitlement established - not well founded |