Complainant

Respondent

Parties

Anatoliy Ludchenko

Harp Renewables Limited

Representatives

Patrick O'reilly O'Reilly & Co. Solicitors

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-00050612-001

13/05/2022

The Complainant commenced employment with the Respondent on 22 June 2020, as a specialist welder.  He worked 39 hours per week and was paid a gross weekly salary of €975.  A complaint was received by the WRC on 13 May 2022.

The fact of dismissal is in dispute.

In opening the Complainant’s representative stated that an incident took place at work on 23 November 2021.  The Complainant stayed on and finished his work that day.  On 24 and 25 November, the Complainant took or attempted to take two days sick leave. He returned to work on 26 November only to be told that the Respondent had accepted his resignation and that he was no longer an employee. The Complainant is adamant he did not resign.

The Complainant gave evidence on Affirmation at the hearing. He stated that on 23 November 2021, he was doing his specialist work, but the preparation work needed for him to do his work was not being done and he was becoming frustrated.  He went to his supervisor twice to alert him to the problem, but he got no response nor did the supervisor do anything to address his concerns.

When asked if he had quit on 23 November 2021, the Complainant stated that he did not resign but he did say “change job”.  He continued working through to finishing time that day. The Complainant reiterated that he had not quit.

On 24 and 25 November 2021, the Complainant looked for two days sick leave on an online system, but these were denied.

The Complainant stated that he returned to work at 7.45 am on 26 November 2021.  When he arrived, he was immediately approached by his supervisor who said to him in a rude tone, “you don’t work here anymore” and “you can’t work here anymore.”

The Complainant stated that he believes he was fired by the Respondent without them having a real understanding of what had taken place.

In cross examination, the Complainant stated that he had only sought assistance from Social Welfare in December 2021, no earlier. 

When asked if had told his supervisor on 23 November 2021 that he was resigning, the Complainant stated that he did not resign nor had he an intention to resign, if he said a word that might have been interpreted as such, this was only because of the health issues he was experiencing at the time. He never intended to leave; he enjoyed his job.

When put to him the Complainant agreed that he had on other occasions said he was going to resign, but these were “nothing more than a joke.”

When put to him that he had threatened to resign previously unless he got a pay increase, the Complainant stated he did not recall this happening. He did agree that he had previously looked for a pay increase because of his experience and the volume of work he was doing; he did get a pay increase that time.

The Complainant did not recall telling colleagues that he was going to leave.  

In conclusion the Complainant’s representative put forward that considering the relevant facts; the fact that he continued working on 23 November, that he applied for sick leave on 24 and 25 November and returned to work on 26 November the only inference is he never resigned, he was dismissed; a summary dismissal. The fact the Respondent’s witnesses have attested that threats of resignation were regular occurrences only strengthens the Complainant’s case.

The Complainant stated that he looked for alternative employment between November 2021 and February 2022.  He found employment on 16 February 2022, on a lower salary.

The Respondent provided a short-written submission.  In the submission the Respondent submits that on the afternoon of 23 November 2021, the Complainant had “verbally handed in his resignation.” That when asked by the Production and Operations Manager (POM) was he sure, the Complainant stated he was and that that day would be his last day. The POM accepted his resignation and when the Complainant did not attend for work the following morning, he sent an email informing his boss that the Complainant had resigned.  At 1.00pm on 24 November 2021, the Complainant used an online system to request a day’s sick leave; the POM refused this request as the Complainant had resigned. The next day the Complainant again applied for a sick day but this too was refused f or the same reason. On 26 November the Complainant attended work but was told to leave by the POM as he was no longer an employee.

Mr Sean Lynch gave evidence at the hearing on Affirmation.  Mr Lynch stated that around Christmas 2020, the Complainant had stormed off from his workplace saying he was never coming back.

In cross examination the witness stated that the Complainant had continued working in Christmas 2020.  In answer to a question as to whether the Complainant had said he was handing in his notice on 23 November 2021, the witness answered “yes; that the Complainant had come over to him and had said he was going to hand in his notice”.

Mr Kevin Quinlan, POM, gave evidence at the hearing on Affirmation. When asked what the Complainant said to him on November 23, the witness stated that he had said he “was finished”.  Mr Quinlan says he asked the Complainant was he absolutely sure, to which the Complainant replied that he was “absolutely sure”.

In cross examination Mr Quinlan stated the Complainant was annoyed on the afternoon in question because of the problems with the work he was doing.  The witness stated that when the Complainant said, “I finished, I no longer work in Harp”, he had quit. Understanding the problems the Complainant had with speaking English, the witness stated that is why he had asked him twice was he resigning.

When asked whether the Complainant had expressed similar ideas before, i.e. saying he was going to resign, the witness stated that he had never said this to him, but he believed he had said it to others. When asked whether he had asked the Complainant to put his resignation in writing, the witness stated he had not.

When asked why, when the Complainant walked into work on 26 November, did the company not accept him back, Mr Quinlan stated as far as he was concerned the Complainant had resigned.

Mr Daniel McDonald gave evidence at the hearing on Affirmation. He stated that the Complainant had mentioned to him that he was going to leave the company.

In response to questions put to him in cross examination, Mr McDonald stated that the Complainant had said he was going to resign, multiple times, but he never left.

Mr Joe Cowley, Projects Manager, gave evidence at the hearing on affirmation. When asked if he had written to Complainant to get confirmation of his resignation, the witness stated that he had wanted to keep the Complainant but that he demanded a lot, namely, pay increases and would constantly threaten to leave. When Mr Cowley heard the Complainant had left, he tried to contact him but the Complainant did not pick up his call on either 23 or 24 November. When he presented himself for work on 26 November a letter had already issued, and he accepted he was gone.

When asked why he contacted the Complainant on 25 Mr Cowley stated that he had done this to make sure the Complainant was definitely resigning, perhaps to see if he might come back.

 In conclusion, the Respondent stated that the Complainant had constantly threatened to leave and constantly sought money to stay; and most of these pay requests were given. However, on 23 November 2021, the Respondent accepted he was not coming back and had resigned.

Section 6(1) of the Unfair Dismissals Act 1977 provides that: -  

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act; to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(4)(c) of the 1977 Act provides that: -  

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from ... the redundancy of the employee...

Section 6(7) provides that: -

 Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.

From the evidence adduced it is clear that on the afternoon of 23 November 2021, the Complainant said words which were interpreted as a resignation (or perhaps as a threat of resignation) by the Respondent.  It would seem that the Complainant had utilised the threat of resignation as a lever to extract pay increases from the Respondent in the past.  In this instance, the Respondent’s patience was exhausted and rather than try and come to some arrangement with the Complainant to get him back to work, the Respondent decided that enough was enough and the Complainant could leave if he so wished; the employer/employee relationship was terminated there and then, on 23 November 2021, by the Respondent.

The question to be answered in such a scenario is; was the Respondent reasonable in construing the words used by the Complainant on 23 November as words of resignation. I find the Respondent was not reasonable in so doing. Given the Complainant’s past record of threatening to resign the Respondent should have been more circumspect in dealing with the matter. The fact that the Complainant worked out the day (23 November) and sought sick leave on 24 and 25 November, indicates the words used were more in frustration than a rational, calm and premeditated expression of a desire to resign his position.

It is up to the employer to confirm a resignation, which must be clear and unambiguous. The onus is on the employer to take such steps as necessary to establish that there was a genuine resignation, for example, requesting the employee to confirm in writing that they wish to resign.  In this instance the employer failed to take those necessary steps.  Therefore, I find this was not a resignation, but a dismissal, and in the circumstances, an unfair dismissal. I find compensation is warranted in this case.

Notwithstanding the above, it is not reasonable to use the threat of resignation as a tool to get pay increases.  I accept that the threat of resignation had been used by the Complainant as a tactic to achieve this aim in the past. In this instance the threat backfired.  Some level of responsibility for the outcome of the interaction lies with the Complainant.

In mitigation, the Complainant found work, albeit on less money than that which he enjoyed with the Respondent, within a three-month period.  Taking the above into consideration I find redress of five month’s pay is just and equitable in the circumstances.

The Complainant was unfairly dismissed, and I award compensation of €19,500.

Resignation, words used.