UDD2343

Appeal of Adjudication Officer Decision No's: ADJ-00043067 (CA-00053852-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 29 June 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 31 October 2023. The following is the Determination of the Court:

DECISION:

This is an appeal by Valentin Arghiropol (hereafter the Complainant) against an Adjudication Officer’s Decision ADJ-00043067 given under the Unfair Dismissals Act 1977 to 2001 (the Act) in a claim that he was unfairly dismissed by his former employer, Michael Dixon International Transport Ltd (hereafter the Respondent). The Adjudication Officer held that he was not unfairly dismissed.

Background

The Complainant commenced employment with the Respondent as a domestic truck driver in 2018.   The Complainant looked for time off to return home to Romania to purchase a car. When he returned, he was informed that there was no work available for him. The Respondent disputes that the Complainant was dismissed. There is a linked case under the Minimum Notice (Terms of Employment) Act 1973.

Summary of Complainant’s submission and evidence.

SIPTU on behalf of the Complainant submitted that in June 2022, the Complainant had asked for four weeks annual leave to collect his new car in Romania. By email of the 8th of June 2022, he was advised that he had only two days annual leave accrued. The email went on to say that he if he did go it would be a break again in his fulltime employment contract as a domestic driver, and that he should contact a named member of staff on his return who would confirm if his position was still available or if they could accommodate him in another area.

The email stated that they were sure they would be able to accommodate him with some position within the company. On the 4th August 2022, the Complainant advised the Respondent that he was returning from Romania and enquired about available work. By return he was informed that there was no work available.

The Complainant in his sworn evidence to the Court stated that he needed to collect a car and that it had to be collected earlier than he had anticipated. He sent an email to Mr Morgan looking for the time off and got a reply stating that there was no guarantee his job would be there for him when he came back. It was his evidence that he did not pay much attention to the email as he thought the Respondent was unhappy with him looking for the leave. It was the Complainant’s evidence that on the 4th of August he notified the Respondent he was on his way back and he received a response stating they had no work for him. He applied for a job with a different company and worked with them from 29th August to 3rd October 2022. He left because he didn’t like the work, he then started another job on the 1st November 2022. It was his evidence that he believed he was sacked on the 4th August 2022.

Under cross examination the Complainant accepted that he had responded to the Respondent’s email of the 8th June advising him that if he went he would be breaking his contract with an email stating “thanks for understanding and replying. Its seem fair enough. I’ll try give the lads in office at least a week before going.”

The Complainant also accepted that the email from Mr Morgan stated that on his return they would see if his position was available of if they could accommodate him. The Complainant stated he did not pay much attention to the detail of the email.

The Union submitted on behalf of the Complainant that he had been unfairly dismissed on the 4th August 2022 without any recourse to fair procedure.

Summary of Respondent’s submission 

Ms Guiness BL onbehalf of the Respondent submitted that the Complainant was entitled to four weeks annual leave for a complete year. In the preceding years the Complainant had taken in excess of this amount as follows; 2019 ,30 days leave, 2020, 47 days leave, 2021, 80 days leave and at the time he left to go to Romania in July 2022 he had taken 28 days leave. Where feasible the Respondent had facilitated the Complainant take unpaid leave over and above his annual leave entitlements.

When in June 2022 the Complainant applied for four weeks annual leave, he was informed that he had only two days annual leave accrued. It was clearly set out in the email that if he went home, it would be a break in his fulltime employment contract. This was clearly spelt out for him before he went. On the 2nd August 2022 the Respondent received an email from the Complainant stating that he would be able to come back to work the following week. The Respondent advised him that at that time they did not have any suitable positions. The Complainant then requested that he be taken off payroll as he had commenced another job.

 Ms Guiness BL submitted that there was no dismissal.

The applicable law

Section 1 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows:

“dismissal” (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)..

(c )…

Issues for the Court

As dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act.

Discussion

The Complainant in his evidence to the Court accepted that the Respondent had facilitated him with leave over and above his annual leave entitlement and that in the email they set out that if on this occasion, he did take the leave, he would be breaking his contract of employment. It was not in dispute that this was set out for him prior to taking the leave.  The Complainant indicated his acceptance that his employment contract would break in a responding email. The Complainant opted to proceed with going to Romania in the full knowledge that this would break his employment contract, and informed the Employer he would try and give a weeks’ notice of his departure. On that basis the Court finds that no dismissal occurred. 

Decision

The Court finds that the Complainant’s employment did not come to an end by way of dismissal.

The Complainant’s complaint is not well founded. The appeal is rejected.

The decision of the Adjudication Officer is affirmed.

The Court so Decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
DC	______________________
20/11/23	Deputy Chairman