Complainant

Respondent

Parties

Gheorghe Daniel  Marcu

Dangan Group

Representatives

Marius Marosan

Valerie Morrison Peninsula Business Services Ireland

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-00050744-001

21/05/2022

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 gave his evidence under oath and his representative undertook to give any relevant evidence under affirmation. A witness for the respondent (the Managing Director) gave his evidence under affirmation. Both witnesses were briefly cross examined.

As preliminary matters the respondent submitted that complaint is a duplication of earlier complaint taken to the WRC. It was also submitted that the matter is out of time and at the same time that complaint was premature. It was further submitted that the fact of dismissal is in dispute.

The respondent noted that the complainant worked for its cleaning business and had joined the company under a transfer of undertakings.

The respondent submitted that the complainant refused to undertake all of the duties that were required of him, and he was offered an alternative position on the night shift. He refused the alternative offered and was placed on short term layoff.

The layoff situation persisted into the long term however the complainant was offered two separate positions and refused to return to work for either. Contact was made with the complainant at an address that had been regularly used by him.

The Managing Director gave evidence that the complainant became an employee through a Transfer of Undertakings process.  He outlined that the complainant refused to undertake the full range of duties required and was offered alternative work.  When he refused this offer, the complainant was placed on short term layoff.

Although he was offered alternative work on two occasions, he remained on lay off. Following on hearing with the WRC regarding other matters the complaint was offered I returned to work position at one of the e-mail addresses that he provided the respondent. Unfortunately, he did not receive the e-mail offer as he was no longer monitoring that e-mail address.

He has remained on layoff and to the best of the witness’s knowledge, remains on layoff to this day.

The complainant submitted that he was unfairly dismissed sometime between August 2021 and February 2022.  He suggested that he was not provided with the opportunity to return to work and that this amounts to an unfair dismissal.

The complainant gave evidence that he took certain matters to the WRC which were subsequently appealed to the Labour Court and that following this he became aware that he was not an employee of the respondent.

The complainant gave evidence that he was placed on layoff in April 2020 and that he continued to be on layoff until at least September 2022.  He stated that he was told he would be contacted with an offer to return to work but that he never received an offer.  He noted that following a hearing with the Labour Court, he checked on his employment situation with the Revenue Commissioners and was informed that he was never an employee of the company.  He then found work on 28 February 2023 with an alternative employer.

On a preliminary basis, I am satisfied that no previous proceedings regard the dismissal were taken. Although reference to dismissal procedures is referenced in an earlier complaint, it appears to relate to the possible outcome of disciplinary proceedings (which were never taken) and as such Ifind tht this reference does not indicate previous knowledge of dismissal.  If no dismissal occurred then the matter cannot be out of time, nor can it be said to be premature.

The complainant submitted that he was dismissed by the respondent sometime after September 2021. The respondent contended that the complainant was not dismissed but was on long term layoff and had been since 17 April 2020.  In his evidence the complainant conceded that he understood that he was an employee up until the end of February 2022 when he was informed by a member of staff with the Revenue Commissioners that he had no record of working with eh respondent.  Both parties accepted that the complainant was an employee of the respondent and became one through a Transfer of Undertakings process.  Following this process, the complainant refused to undertake the full range of duties required by his new employer.  He was offered alternative work and when he refused the offer, was placed on short term layoff.

Although he was offered alternative work on two occasions, he remained on lay off. Following on hearing with the WRC regarding other matters the complaint was offered I returned to work position at one of the e-mail addresses that he provided the respondent. Unfortunately, he did not receive the e-mail offer as he was no longer monitoring that e-mail address.  The complainant took up a position with another company for a higher salary.

No evidence of the dismissal was put forward by the complainant save that he sought new employment. 

Having regard to all the written and oral submissions made in relation to this complaint, I am not satisfied that a termination of the employment relationship ever took place or that the complainants move to a new employer amounted to a dismissal.  Although there is legislation in place to address issues such as have arisen in this case, it is not contained within the Unfair Dismissals Act.  Therefore, I find that the cessation of the employment relationship does not amount to an unfair dismissal.

Having regard to all of the written and oral evidence presented in relation to this case, my decision is that the complainant was not unfairly dismissed.

Unfair dismissal – no dismissal established