Complainant

Respondent

Parties

Lorna  Connolly

Carol Upton Peri Upton Hair Design

Complainant

Respondent

Anonymised Parties

Lorna Connolly

Carol Upton Peri Upton Hair Design

Representatives

  self

 Colm O'Cochlain & Company Solicitors

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-00053832-001

23/11/2022

At the first day of hearing the Complainant requested an adjournment as her Solicitor was no longer representing her and the file had been returned to her late. Evidence was produced to support her application for an adjournment.  Her application was agreed to and a new hearing date would be set. The Complainant worked as a hairdresser and had long service. The issue in dispute is whether the Complainant was dismissed or resigned.

The Complainant commenced employment in 2001. In May 2017 the Complainant goes on maternity leave. During her maternity leave the Complainant experienced post-natal depression and on the 17th of Feb 2018 submits a medical certificate to cover her up until the 17th of April 2018. Another certificate is given to her employer dated the 21st of November 2018 for a 6-week period. There is no written note from the Complainant stating that she wished to return to work until June 2021.

There is no termination written correspondence from the employer detailing a resignation or that the Complainant’s employment was being terminated.

Based on reticence to provide a date to return to work the Complainant contacted Revenue who informed her that according to their records her employment had ended on the 31st of December 2019.

There is a dispute between the parties regarding a 3rd certificate which allegedly stated that the Complainant was unfit for work until further notice. The Complainant produced a note from her doctor to state that no record was on file but that it did issue such a certificate. The Respondent stated that she never received it.

On December 2021 the Complainant gave the Respondent a medical certificate to state that she was fit to return to work.

The Complainant maintained that she had several conversations with the Respondent that led her to believe that she was still an employee and would be returning to her role.

The Respondent is the of the view that the Complainant had in effect left her role and had begun to support her partner who has his own business. The Respondent believes that this dispute is contrived and only recently arose when the Complainant looked to be made redundant. When this was refused, this complaint was lodged with the Commission.

The Complainant has stated that she never resigned and was never told that her role had been terminated. This complaint was lodged with the Commission as no date was being provided for a return to work. While she put down the termination date of the 31st of December 2019, this was the date that Revenue provided her as the date of termination.

The Complainant left her job and by reason of resignation her employment ended. While there is no written note of resignation all the circumstantial evidence shows that on balance the Complainant had no intention of returning to work and had in fact commenced working with her partner. This issue only was referred to the Commission when the Respondent refused to sign a form stating that the Complainant was being made redundant. The Complainant was of the view that the Respondent would not have to pay for statutory redundancy and that the State would pay for her redundancy. The date of termination on the Complainant’s form is 31st of December 2019 and as the complaint was lodged with the Commission on the 23rd of November 2022  and it is out of time. If this date is not accepted, then the complaint is misconceived as to pursue an Unfair Dismissal claim there must be a termination date. The facts show the Complainant resigned from her role and this complaint is opportunistic.

If the Complainant is stating that this is a constructive dismissal, then the maximum she can receive is 4 weeks as she has made no attempt to mitigate her loss. Her medical certificate sates that she is fit to return to work since June 2021 and she still is not working. The facts show this complaint is not about an unfair dismissal rather about pursuing a lump sum payment.

The Complainant hands in a medical certificate to her employer in November 2021 which states that she is fit to return to work. However, that certificate is dated 23rd of June 2021 and is handed in 4 months later. The only other certificates that have been opened at the hearing relate to 2018.

The Respondent has produced social media records from 2018 that show that the Complainant was assisting her partner with his business and also social media posts show that the Complainant was providing hairdressing services in her own right. The Complainant stated that she was not paid for any of this work.

On balance the evidence shows that the Complainant was taken off the books at the end of 2019 as it was assumed that she had in fact resigned.

The dispute before me relates to how reasonable that assumption was. The Complainant was on maternity leave from May 2017. There are two medical certificates on file dated the 17th of February 2018 to cover a period up to 17th of April 2018. There are no intervening certificates until the 21st of November 2018 which states it is for a period of 6 weeks.

The next certificate produced was  in or about late December 2021; however, it is dated 23rd June 2021. Along with that certificate the Complainant requests the Respondent to sign an RP 77 form that is dated 16th of December 2021.

The Complainant failed to communicate with her employer about a return to work until late 2021.

Section 1 of the Unfair Dismissals Act 1977 as amended states:

“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;

Revenue have informed the Complainant that her employment ended in December 2019; however, she became aware of that fact during 2022. It would be unreasonable to fix the employee with a date of termination that was never communicated to her.

On the facts that employee has not met what are very basic requirements to communicate with her employer during her sickness. Can this failure lead to an assumption by the Employer that the contract has been repudiated?

In Redmond on Dismissal Law 3rd Edition, Ryan states:

[22.06]

The definition of dismissal in (a) and (b) above, para [22.02] constitutes the conceptual core of the legislation. In Chapter 6, various difficulties surrounding the concept of termination at common law were discussed. An attempt was made to describe the effect of breach of the employment contract on the concept of termination, having particular regard to the recent decision of the United Kingdom Supreme Court in Société Générale (London Branch) v Geys. 8 The latter raised the question of whether repudiatory conduct automatically terminates the contract or whether, on the other hand, termination depends upon some further act or election by the injured party. 9 It was unclear as to whether this question would be relevant to unfair dismissal because the Unfair Dismissals Act rests on an edifice of common law contract principles.

In this case it could be argued that the Complainant’s actions such as her failure to provide up to date medical certificates and also evidence of working by herself and with her partners constitutes repudiatory conduct. Can the contract self-terminate, or does it require some further act?

When relying on a statutory remedy the definition of dismissal is crucial and in this case that means the termination of the contract can only come to an end as prescribed by the Act if a party is relying on the statutory remedy. The employer informed Revenue that the Complainant’s employment ended in December 2019. On balance the facts tend to support the Respondent’s position that the Complainant had ended her employment and had resigned. No medical certificates were produced during 2019 at all. There are social media records that support the Respondent’s case that the Complainant in fact was assisting her partner and also in her own right providing hairdressing services to clients. Therefore, in this case the fact of dismissal itself is in dispute. I find that the employment contract ended by reason of resignation on or about 31st December 2019 and I determine that the Complainant was not unfairly dismissed.

The Complainant relies on a medical certificate that states she was fit to return to work in June 2021 and yet continues to be allegedly unemployed. The Complainant has produced no evidence that she has attempted to mitigate her loss. The Complainant’s evidence on balance is less credible that the Respondent’s.

When relying on a statutory remedy the definition of dismissal is crucial and in this case that means the termination of the contract can only come to an end as prescribed by the Act if a party is relying on the statutory remedy. The employer informed Revenue that the Complainant’s employment ended in December 2019. On balance the facts tend to support the Respondent’s position that the Complainant had ended her employment and had resigned. No medical certificates were produced during 2019 at all. There are social media records that support the Respondent’s case that the Complainant in fact was assisting her partner and also in her own right providing hairdressing services to clients. Therefore, in this case the fact of dismissal itself is in dispute. I find that the employment contract ended by reason of resignation on or about 31st December 2019 and I determine that the Complainant was not unfairly dismissed.

Unfair Dismissal in Dispute-Resignation