ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034172
Parties:
| Complainant | Respondent |
Parties | John McDonnell | Solo Logistics Ltd Aztec Logistics |
Representatives | Siobhan Harbour | Peninsula Group Limited |
Complaint:
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-00045096-001 | 07/07/2021 |
Date of Adjudication Hearing: 09/05/2022
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.
Parties in attendance were advised that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that this hearing before the Workplace Relations Commission would be held in public and that this decision would not be anonymised and there was no objection to same. This Decision can be read in conjunction with ADJ-00034698.
No evidence was given by the complainant as he did not attend. Evidence was given under oath/affirmation for the respondent by Mr Fintan Lawlor and Ms Edel Lawlor and cross examination permitted.
Background:
The complainant’s representative attended the hearing, but the complainant did not. The complainant’s representative advised the complainant would not be attending and that it was the complainant’s understanding that he did not have to attend. The complainant’s representative advised that they were not seeking an adjournment of the hearing. |
Summary of Complainant’s Case:
The complainant did not attend the hearing. The complainant’s representative who did attend the hearing, submitted the complainant would not be attending and that it was the complainant’s understanding that he did not have to attend. The complainant’s representative advised that they were not seeking an adjournment of the hearing. It was submitted on the complaint form that the complainant was unfairly dismissed. The complaint form set out that during covid the respondent did not provide the complainant with appropriate work, that they did not make contact with him and that he had no option but to get another job and he resigned his position on 18 June 2021. |
Summary of Respondent’s Case:
The respondent denied the dismissal and submitted that the complainant declared that he was vulnerable to the pandemic Covid-19, submitted a letter to the respondent from his GP dated 13th August 2020 advising that he needed to cocoon, never returned to work and later resigned his position. Case law cited included Tulsa v Flynn UDD1810 2018, Kearns v Silverfern Properties 2013 2JIEC0701. Evidence given by Mr Fintan Lawlor included that the complainant had been out on health leave during covid as he suffered with a health condition. A medical cert had been submitted dated 13 August 2020 and Mr Lawlor was surprised at the claims as he thought he had a good relationship with the complainant. Under cross examination Mr Lawlor confirmed that he knew the complainant had a health condition and that the complainant removed himself from employment with the respondent on the Revenue system and sent in a letter of resignation. Evidence given by Ms Edel Lawlor included that she observed the complainant working elsewhere on 28th May 2021 and shortly afterwards she noticed he had ceased his employment on revenue and sent in his letter of resignation after that. |
Findings and Conclusions:
A complaint was received by the Director General of the Workplace Relations Commission from the complainant on 07/07/21 alleging contravention of the Acts. The said complaint was referred to me for investigation. A hearing for that purpose was held on 9th May 2022 and there was no appearance by the complainant. The complainant’s representative did attend and submitted that the complainant did not think he had to attend. The complainant’s representative confirmed that the complainant was not seeking an adjournment. I am satisfied that the said complainant was informed in writing of the date, time and place at which the hearing to investigate the complaint would be held and did not attend. The complainant submits that he was constructively dismissed pursuant to Section 1 of the Unfair Dismissal Act 1977. Section 1 defines constructive dismissal as : (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,…” In reaching my conclusion I have carefully evaluated the evidence adduced and taken account of submissions made. The burden of proof, which is a very high one, rests with the complainant and it is necessary that he show that his resignation was not voluntary and that he had no option but to resign owing to the behaviour of the respondent. In UD 1146/2011 the Employment Appeals Tribunal (EAT) held “in such cases a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”. I note that a letter of resignation was submitted and the complainant did not attend the hearing and did not give any direct evidence to support his complaint. In the circumstances, I find that the complainant has not met the burden of proof required, the complainant was not unfairly dismissed, and I dismiss the complaint. |
Decision:
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.
In the circumstances, I find that the complainant has not met the burden of proof required, the complainant was not unfairly dismissed, and I dismiss the complaint. |
Dated: September 6th 2022
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Constructive dismissal, complainant did not attend |