Complainant

Respondent

Parties

Ann Marie  Harbourne

Smyth Mahon Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

Nina Smyth

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-00052938-001

23/09/2022

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 and two witnesses for the respondent gave their evidence under affirmation. The parties were offered the opportunity to cross examine the witnesses but declined to do so.

The respondent operated a post office and retail outlet.

The complaint taken is one of constructive unfair dismissal. 

On the question of anonymity, the complainant indicated that she was indifferent to this while the respondent indicated that they would prefer these things to be kept private.

The complainant submitted that she was constructively unfairly dismissed from her position when she was left with no alternative but to resign.  The complainant made her complaint to the WRC on 23 September 2022.

The complainant gave evidence that she resigned from her position with the respondent sometime in October 2022.  She confirmed that she worked in the postal side of the business.  She confirmed that she was on four weeks paid leave from mid-August and when this period was over, she was offered a position in the retail outlet. She considered the offer but declined this position in a resignation letter sent to the respondent in October 2022.

The respondent submitted that the complainant worked in its retail business first and then took up a position in its postal business.  Following a review of the postal business the complainant was offered a position in the retail business once again.  The respondent submitted that the complainant resigned from her position when she was offered an alternative place of work at the same rate of pay and hours.

The witness for the respondent gave evidence that it was reviewing the operations of its post office and as part of that review, and in order to reduce the stress on the complainant, gave her four weeks paid leave. The witness stated that as part of this review it became obvious that the post office business would cease in the near future and accordingly when the complainant was returning to work, she was offered a position in the retail outlet. This position was on the same hours and for the same money as the complainant was previously on. The complainant was offered the position on 20 October 2022 and refused the position by way of letter of resignation dated 22 October 2022.

The second witness for the respondent indicated that he was sorry that matters had come to this and confirmed that the respondent has ceased to operate the postal side of the business.

The respondent indicated that there were never any allegations of impropriety on the part of the complainant and indeed it offered the complainant a job in the retail section of the business. 

Section 8(2) of the Unfair Dismissals Act, 1977 states as follows:

(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General—

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,

and a copy of the notice shall be given by the Director General … to the employer concerned as soon as may be after the receipt of the notice by the Director General.

Dismissal is defined under the Act (in Section 1 – Definitions) as follows:

“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;

“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative;

The complainant confirmed that no dismissal took place in the six months prior to her submission of a complaint to the WRC.  This was confirmed by the respondent who indicated that the complainant resigned her position a month later. As no termination or cessation of employment of any sort took place in the six months up to the date of submission of the complaint on 23 September 2022, I find that no dismissal took place within the legislative timeframe comprehended by the Act.  Accordingly, I find that the complainant was not unfairly dismissed. 

As to the issue of anonymity, the respondent suggested that such matter were best kept private.  Having regard to this suggestion, I am not satisfied that special circumstances exist such as to warrant anonymising this decision.

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

Unfair Dismissal – constructive dismissal – no dismissal within legislative timeframe – no unfair dismissal