Complainant

Respondent

Parties

Brendan  Power

Lucey Transport Limited

Representatives

Brendan Power

Warren Parkes Warren Parkes 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-00036048-001

07/05/2020

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977- 2015 and has submitted that he was unfairly dismissed (CA-00036048-001)

The Complainant commenced employment with the Respondent on the 1st June 2016 as a truck driver. The Complainant was paid €660.00 gross per week (€534.00 net). The Complainants employment ended on the 3rd April 2020.

 The Complainant, who represented himself, submitted that he had not resigned his position as alleged by the Respondent. The Complainant stated he had been on certified sick leave from the 16th March 2020 and had contacted his manager, Peter Donoghue, on the 28th March 2020 to confirm he was medically fit to return to work on the 6th April 2020. However, the Complainant was informed by the Respondent that he was no longer an employee of the Respondent as he had resigned his position on the 27th February 2020.

The Complainant submitted he had had been unilaterally dismissed without cause or the application of any proper procedures. The Complainant contacted the Respondents payroll office by email on the 15th April 2020 seeking a statement from the Respondent as to why he was dismissed on the 1st April 2020.

The Complainant took up alternative full time employment in June 2020.

This Complaint was received by the Workplace Relations Commission on the 7th May 2020.

The Respondent submitted that the Complainant informed his manager, Peter Donoghue, on the 27th February 2020 that he was resigning his position as he had secured employment with a plumbing business.

In that regard, the Respondent relied on a memo dated the 28th February 2020 sent by Peter Donoghue wherein it was stated that the Complainant was resigning his position and his last day of work with be the 3rd April 2020. It was agreed that the Complainant had some leave owing and he would take some days in month of March. Mr. Donoghue asked that the agency be notified of a vacancy and recruit accordingly.

The Respondent accepted that the Complainant was out on sick leave from the 16th March 2020 but did not provide any  medical certificates. Mr. Peter Donoghue confirmed in evidence that he contacted the Complainant on or about the 27th March 2020 to enquire as to state of his health and was informed that the alternative employment had fallen through and he wanted to withdraw his resignation.

Following the aforementioned email from the Complainant to the payroll office on the 15th April 2020, the Respondents Operations Manager (Mr. Donie Punch) emailed Mr. Donoghue on the same date asking him to confirm with the Compliance Manager (Mr. William Domican) when the Complainant handed in his notice. Mr. Punch confirmed that following the Complainants resignation a driver was hired to replace him and no other vacancies were currently available.

It is the Respondents position that the Complainant resigned his position on the 27th February 2020 and was not unfairly  dismissed.

In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of this hearing by both parties.

The lawful reasons for dismissal are set out in Section 6 (4) of the Unfair Dismissals Act 1977 which provides:

“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 one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Further, an onus is placed on the employer by Section 6 (6) of the Unfair Dismissals Act  1977 which provides

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal”

In the particular circumstances of this case the fact of the alleged dismissal is in dispute. The Respondent claims the Complainant resigned and the Complainant claims they were fired. The determination will depend on the facts of the case, the exchanges between the parties and the behaviour of parties after those exchanges.

From the evidence adduced, I am satisfied that on the 27th February 2020, the Complainant said words which were interpreted as a resignation by the Respondent and that he had an offer of alternative employment. I am further satisfied that the alternative employment fell through and the Complainant withdrew his resignation and was desirous of retaining his former employment with the Respondent.

 In that respect, I have considered Shinkwin v Millett (ED-03-33) where the Labour Court stated

“Resignation is a unilateral act which, if expressed in unambiguous and unconditional terms,  brings a contract of employment to an end. The contract cannot be reconstructed by a subsequent unilateral withdrawl of the resignation”.

I accept the bona fides of the Complainant and acknowledge that this was a difficult time for him with the onset of the pandemic but I am satisfied the Complainant had resigned his position and accordingly this Complaint is not well founded.

I find that the Complaint (CA- 00036048-001) made pursuant to Section 8 of the Unfair Dismissals Act, 1977, is not well founded.

Resignation