Complainant

Respondent

Parties

Ms Roxana  Doba

AFM Facilities Limited

Complainant

Respondent

Anonymised Parties

Representatives

Mr Marius Marosan

Mr Michael O’Sullivan BL instructed by Mr Peter Gibbons O'Shea Barry Solicitors LLP

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-00053597-001

07/11/2022

This matter came before the Workplace Relations Commission dated 07/11/2022 as a complaint submitted under section 8 of the Unfair Dismissals Act, 1997.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 01/12/2023.

The Complainant was employed by the Respondent from 03/04/2017 until 16/09/2022 in her capacity as a cleaner.  The Respondent is a company providing facility management, specialised industrial services and daily contract cleaning. 

The Complainant and her mother both filed complaints with the WRC on foot the same identical facts.  Both complaints were heard together at the request of the parties.   Accordingly, this decision should be read in conjunction with ADJ-00043189 as there is considerable overlap in both cases.

The Complainant and her mother both submitted identical disputes pursuant to section 13 of the Industrial Relations Act, 1969 of which there is some reference hereunder in the submissions of the parties.  One of the aforesaid disputes was referred to the Labour Court in accordance with section 20(1) of the Industrial Relations Act, 1969 in the intervening period between the filing of the complaints to the WRC and the initial hearing of this complaint which opened on 09/06/2023.   The Labour Court hearing took place on 31st October 2023.  The Labour Court held as follows:

“The Court has noted that the employment relationship has terminated and that the parties are, separately to the within referral under the Act, before the Adjudication Service of the Workplace Relations Commission under the Unfair Dismissals Act, 1977 (the Act of 1977) with regard to that termination. 

The Court, having regard to all of the circumstances, recommends that the parties recognise that no practical contribution to the resolution of issues between the parties can be made by any Recommendation made on foot of the referral under Section 20(1) of the Act; and that the more pragmatic analysis would be to the effect that any differences existing between the parties will be concluded as a result of the procedures which have been engaged under the Act of 1977.  The parties should therefore accept that their trade dispute under the Industrial Relations Act is resolved.”

The Complainant at hearing withdrew her complaint under the Industrial Relations Act. 

Both parties filed helpful written submissions and supporting documentation in advance of hearing. 

As per Written Submission

Both complainants started working for the respondent on the 3rd of April 2017 and were both dismissed on 16th of September 2022.  The Complainant worked as a cleaner and did an average of 45 hours/week and was paid €11.55/hour.  The Complainant’s mother worked as a supervisor and did an average of 42.5 hours/week and was paid €11.90/hour.

Unfair Dismissals Act, 1977 Unfair dismissal is defined at section 6(1) of the act: "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."

Everything started when the complainants took 3 weeks of Annual Leave, as they normally did.  On their return they were told that they will change the working locations, including working hours.  The first explanation given on the spot when asked about the reasons behind the change, it was that it's because they took 3 weeks of Annual Leave and because they spoke to the facilities manager. An exchange of emails started and a series of meetings discussing about these changes.

Both complainants rejected the proposal to work on different sites, as they got information that the hours were still available where they originally worked, also because the proposed changes were altering the shifts and pay and because it was a form of punishment for going together on Annual Leave for 3 weeks, as they did every year.

The company decided to consider the complainants as resigned, despite the express mention of both mother and daughter that no resignation is or will be tendered.  Both complainants sent the same reply to the letter received, which was left unanswered: " I have received the letter today, sayingthat the company received my resignation. At no point have I tendered my resignation as I just said that I won't accept the proposed changes as they were a form of punishment, as was told in the first instance.  I can accept that the company decided to end my employment, but I have not presented the company with any form of resignation."

Section 6(6) of the Act places the onus on the company to show that the dismissal was fair: "(6) 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."

Given the fact that the company could not offer comparable employment option for the two complainants, a redundancy payment should have been considered. The fact that this option was not even taken into consideration, would confirm that the company simply wanted to punish the two employees, especially after they both filed a grievance against their manager.  Because of the circumstances, the Complainant’s mother got sick, having ongoing health problems and the Complainant managed to find a job in security.  

Later edit of submission: The Complainant representative later added to his submission two emails related to annual leave and he submits in one of them it is clear the complainants were threatened with dismissal even before going on holidays.  The Complainant representative also added to the submission the proof the Complainant tried to secure work when she saw she is not successful she decided to change her career and did security training and now works in security. 

Text of emails referenced above:

From the Complainant to her manager on 30 May 2022: “Hi! This email is for our holiday.  XXXX know before about our holiday.  I will let you knew too.  Me and my mom first day of holiday is 11 July and last day holiday 29 July.  Thanks.”

Reply from her manager: “Hi Roxana. How are you? Regarding your holiday you are allowed to go for only two weeks during the summer time.  We won’t accept any summer holiday more than two weeks.  As you are aware of company policy if you go for more than two weeks during the summer time you will be calling for dismissal meeting.  Thank you for your understanding.  Kind regards XXXX”

Followed by a further email: “Good afternoon Roxana. I hope you are keeping well.  Please note that only one employee is allowed leave on a site at a time.  It is a first come first approved basis and also only two weeks of holiday will approve for summer holiday.  I will discuss with you in next couple days when I visit this site.  Thank you for your understanding.  Kind regards XXXX”

Summary of direct evidence of the Complainant on oath:

The Complainant states she had worked in the Respondent company from 2017 until August of last year (2022).  The Complainant states she went on holidays every year for three weeks with her Mum and she never had any problems.  She states there were 7 people on her shift.  When asked if she got approval from her manager last time she says “yes” and she gave notice in time.  The Complainant states the tickets were booked and she sent an email to her new manager to tell her (see email thread above).  The Complainant states someone else was doing their jobs when they came back and they went to meetings and were told the hours were not there anymore.  The Complainant states her manager says they will be moved because they got three weeks holidays.  When asked why did she not accept the offer to relocate the Complainant states because nothing had changed in the site where they were working and other people were doing their shifts.  When asked if she resigned from the company the Complainant states she never resigned. 

Summary of cross-examination of the Complainant:

Mr O’Sullivan puts it to the Complainant that she had been told the hours were no longer available in the current site and she was offered a transfer to another site less than a kilometre away on same terms and conditions to which she responds the motive was she went on holidays for three weeks.  When asked what explanation HR had given the Complainant responds the shift hours were not there anymore and she went on holidays for three weeks. 

When it is put to her that the location was considered too far away yet she had applied for jobs in Sandymount and Blackrock one of which would necessitate a round trip of 60 kilometres from her place of residence she does not respond.  Mr O’Sullivan asks the Complainant if she is aware of clause 2 of her contract which provides Place of Work: “Your employer’s premises is at Kilshane Cross, North Road, Dublin 11 but you will be required to work off-site at our client’s premises.  You will be placed where work demands which may require you to change locations to ensure that business needs are met.  You will be given as much notice of such change of work as is reasonably practical” which he reads to her followed by the requirement for flexibility as set out in the Employee Handbook to which she replies she is aware and had read these. 

Mr O’Sullivan asks the Complainant if she accepts that from the 22 July she repeatedly refused offers of work to which she replies she refused because the hours have not been changed in the building in which she had been working.  When asked if the hours offered in the new location were the same she states yes and she states there was no motive for her to be moved from the Liberty building as the hours have remained the same and there was no reason why she should have to move. 

Mr O’Sullivan makes reference to the meeting of 30 August and to the minutes of the meeting that demonstrate it was explained to the Complainant the necessity for her to indicate the hours she wanted to work and when asked if she understood this she says yes.  Mr O’Sullivan asks the Complainant if she believed she had been dismissed why did she not appeal the dismissal to which she replies the hours were still there. 

Mr O’Sullivan puts it to the Complainant that was not what he asked and puts it to her again that if she believed she had been dismissed why did she not appeal to which she states she sent an email to HR.  Mr O Sullivan reads the aforesaid email as follows: I have received the letter today, saying that the company received my resignation.  At no point have I tendered my resignation as I just said that I won’t accept the proposed changes as they were a form of punishment, as was told in the first instance.  I can accept that the company decided to end my employment, but I have not presented the company with any form of resignation” and he puts it to the Complainant that email is not an appeal it is an email.  Mr O’Sullivan puts it to her she did not take issue, she did not appeal, she did not dispute and she stated “I can accept the company decided to end my employment.”   

Mr O’Sullivan puts it to the Complainant she did nothing to appeal the decision to end her employment to which she does not reply. 

At the conclusion of the cross-examination Mr O’Sullivan makes a submission that the Complainant has not shown there was a dismissal and has no entitlement to rely on the Unfair Dismissals legislation.  He further submits the Respondent is entitled to interpret that if you refuse work it is taken as a resignation. 

Summary of direct evidence of Complainant witness Ms Aida Ana Maria Radut on affirmation:

The witness states she worked for six years with the Complainant and her mother on the same site.  She states there were no changes in the company and the hours were the same hours.  The witness states she left the employment in October 2022. 

Mr O’Sullivan had no questions by way cross examination of the witness. 

Complainant closing submission:

Mr Marosan did not wish to deliver a closing submission and when asked if there was anything further he would like to submit on behalf of the Complainant before the hearing closed there was nothing further he wished to add. 

As per Written Submission

The Complainant and her mother have both made two formal complaints to the Workplace Relations Commission, on foot of the same identical facts.  The Complainants’ complaint is a claim that they were both unfairly dismissed.

The Complainant states: “After the company wanted to move me to a different site and I did not agree, as there was a change in working pattern and location, the company said I resigned, despite me repeatedly saying that I’m not resigning.

The Complainant’s mother states: “The Company tried to change my work site pattern and I refused. I was then told that I have resigned, although I said severals time that I do not resign.”

The Respondent denies the allegations made by both complainants that they were unfairly dismissed.  The Respondent submits the Complainants were not dismissed.  The Complainants’ contracts of employment stipulated that they would be required to work off-site at client premises and would be placed where work demanded to ensure business demands were met.

The Respondent submits due to changes in the work practices of one of the Respondent’s clients, there was a significant reduction in demand in the building where the complainants worked.  The complainants were offered identical work, on identical terms in a separate client building less than a kilometre from where they had been working.  The complainants were also offered reduced hours in the building where they were working. 

The Respondent submits various offers were made to the Complainants and multiple meetings occurred to explain the position and discuss the alternative working arrangements available.  The Complainants were accompanied by their representative at the various meetings.  Notwithstanding the efforts of the Respondent to accommodate the complainants they refused to accept the necessitated changes.  The Complainants refused to advise the Respondent as to their availability to be rostered for work.  The Respondent submits the Complainants never made themselves available for work.  The Respondent submits the Complainants’ refusal to notify the Respondent of their availability to work was taken as resignation.  The Respondent submits no Appeals were raised by either of the Complainants.

Background:

The Complainants are mother and daughter.  The Complainants commenced their employment with Ashbrook Facilities Management on 3 April 2017.  Thereafter they had a series of employment contracts of varying duration.  On foot of a management buyout, the Complainants’ employment was transferred from Ashbrook Facilities Management Limited to the Respondent company by virtue of a TUPE transfer on 1 May 2022.

The terms and conditions of the Complainants’ employment did not change.  The Complainant’s mother was originally employed as a cleaning operative, as reflected in her 2020 contract.  She was subsequently employed as a Supervisor, as reflected in her 2022 contract.

Both of the Complainants’ contracts of employment stated that while the Respondent offices were in Kilshane Cross, North Road, Dublin 11, they were required to work off-site at clients’ premises.  The contracts specifically noting that “You will be placed where work demands which may require you to change locations to ensure that business needs are met. You will be given as much notice of such change as is reasonably practical”.   The Complainants worked in a building known as Liberty Blanchardstown, owned by a client of AFM.

The Complainants generally worked Monday to Friday from 11:00am to 7:00pm and their most recent rate of pay was €11.90 and €11.55 gross per hour, the Complainant’s mother was receiving slightly higher remuneration as she fulfilled a supervisory role.  The Respondent company was engaged by the client to provide office cleaning services.

The Complainants worked along with several colleagues, who worked in full-time and part-time positions, in the building prior to the onset of the Global Covid 19 pandemic.  With the onset of Covid 19, and the immediate reduction in on-site working, following detailed discussions with the client, the Respondent reduced the number of cleaners in the building from 10 to two.  The Complainants were the only Respondent employees retained at that site.

In the summer of 2022, the client instructed the Respondent that due to the continued reduced numbers of people attending the office, they would need to further decrease the number of cleaners in the building. 

On 22 July 2022, the Respondent received formal notification from their client confirming that the cleaning contract for Liberty Blanchardstown was being put out to tender.  On 22 July 2022, the Respondent wrote to the Complainants indicating that their positions in Liberty Blanchardstown were no longer available and the Respondent was offering them a position in Blanchardstown IT, under the same terms and conditions.  Blanchardstown IT is less than one kilometre from Liberty Blanchardstown.

On 2 August 2022, the Respondent wrote an additional letter to both Complainants indicating that as an alternative to the proposed full-time role in Blanchardstown IT, the Respondent was in a position to offer them a role in Liberty Blanchardstown, but only on a part-time basis, from 2:30pm to 7:00pm, five days per week.  This arose as the Respondent was informed that it would be retained as cleaners in Liberty Blanchardstown, albeit on a reduced number of floors.

The additional part-time roles arose due to client requirements and the fact that another member of staff who had been working in a part-time role had left AFM’s employment.  An informal meeting took place on site in Liberty Blanchardstown in or around this time.  By separate letter dated 2 August 2022, the Respondent invited the Complainants to a meeting on 10 August 2022.  Both complainants wrote two identical separate emails on 3 August 2022 to the Respondent HR Manager the first stating they did not accept the proposed change in roles, and the second stating that they would attend the meeting arranged for the 10 of August.  The meeting of 10 August 2022 did not take place. 

On Saturday 13 August 2022, formal complaints were made via email by both Complainants.  The nature of both complaints was identical and pertained to their perceived mistreatment by their manager XXXX.   On Monday 15 August 2022, the Respondent HR Manager, Amanda Hill, responded to the complaints by email, noting their seriousness and advising that a full investigation would be conducted.  Both Complainants were given the opportunity to take the following day off, being 16 August 2022, with pay.  They responded to indicate that they would take 16th August off. The Respondent HR Manger emailed the Complainants on 16 August to arrange a formal meeting in the offices of the Respondent on 17 August.  The Complainants responded to confirm the meeting of 17 August. 

On 17 August, when attending at the Offices of AFM Facilities, the Complainants provided the HR Manger with two medical certificates, the first indicating that they would be unfit for work between the dates of 16 August and 30 August, the second medical certificate indicating that they would be medically fit to attend meetings.

Given the presentation of the medical certificates, Ms Hill postponed the meeting, rearranging same to 30 August.

Separate meetings were held with each of the Complainants on 30 August 2022.  The meetings were held in the presence of the complainants’ representative.  The HR Manager represented the Respondent and also took the minutes of the meetings.  The meetings had been arranged to allow for discussions regarding the proposed changes in their roles and to discuss the options available and also the grievances that had been lodged.  Both Complainants refused to accept either alternative offer of employment put forward earlier in August 2022 by the HR Manager. 

The matter was discussed and explained to both Complainants in the presence of their representative.  The Complainant’s mother in her meeting sought clarification specifically that the role being offered in Blanchardstown IT was on the same terms, with the same hours and same rate of pay.  Having gotten that clarification she then went to speak to the Complainant.  The Complainant’s mother then returned and stated she was not accepting the alternate roles offered.

Having indicated her refusal to accept a change in her role and refusing to work in IT Blanchardstown or accept reduced hours in Liberty Blanchardstown, the Complainant’s mother left the meeting, without allowing any time for discussion regarding her complaint. 

The Complainant’s refused to accept the alternate roles on 9 separate occasions during her meeting.   Having discussed the matter with her mother she returned to the meeting, confirming she was refusing to move and formally refusing to resign.  The Respondent HR Manager explained the consequences of refusing to accept the alternate roles on a number of occasions, outlining the nature of the employment contracts and the need for flexibility.  The Complainant indicated her understanding of the position, stated she was not resigning and stated she would not sign anything.

The Respondent HR Manager wrote to each of the Complainants on 30th August 2022, referring to the meetings that had occurred and again asked each of the Complainants to confirm which of the proposed alternate roles they would be accepting as work schedules needed to be prepared.

The Complainants sent identical emails in response stating “I do not agree to the change in the hoursnor location.”  Neither of the Complainants returned to work after this date.  Further medical certificates were presented indicating unfit for work up to 10 October 2022. 

The Respondent HR Manager, having been on annual leave, emailed the Complainants on 13 September indicating that following receipt of their confirmation that they were not accepting the proposed role changes, the Respondent considered that both complainants had resigned as had been explained to her during the meeting of 30 August.  The Complainants sent identical emails on 19 September to confirm receipt of the letter. 

The letters stated: “At no point have I tendered my resignation as I just said I won’t accept the proposed changes as they were a form of punishment, as was told in the first instance. “I can accept that the company decided to end my employment, but I have not presented the company with any form of resignation.”

The Respondent submits no further correspondence was received from either of the Complainants.  No appeal was lodged by either of the Complainants at any time.

The Respondent submits that the Complainants were not dismissed.  As such, the Respondent submits that the Complainants were not unfairly dismissed.  The Respondent submits there was a fundamental change in the conditions of work in the client building in which the Complainants ordinarily worked due to consequences and work practices altering after the Covid 19 pandemic.

The contract that the Respondent had for that specific building was being sent out to tender and the level of service needed by the client on-site was greatly reduced.  The Respondent submits the Complainants were notified immediately of the necessity for their roles to change in line with business demands.

The Respondent submits the Complainants were given four weeks’ notice of the change in working locations.  The Complainants were offered identical work, on identical terms in a nearby location with minimal possible disruption to their working conditions.  The Respondent submits additional accommodations were made to facilitate the Complainants remaining in the roles they had been working, but on reduced hours in line with business demand.  The Respondent submits formal offers were made to the Complainants.  The Respondent submits information was provided to the Complainants and formal meetings were arranged to which they brought professional representation.  The Respondent submits the cause of the change in business demands was outlined to the Complainants and the alternative roles available were made available to the Complainants, on the same rates of pay and on the same hours. 

Both of the Complainants’ employment contracts specifically addressed the nature of the work, and the flexibility needed to ensure business demands were met where their works was to be undertaken on clients’ premises.  Both of the Complainants’ employment contracts reserved the right of the Employer to vary the terms and conditions of employment to meet business needs.  Both Complainants signed their most recent, 2022, contracts of employment.

The Employee Handbook stipulates that: “You will be required to be flexible in the role and commit to undertaking work which may be outside of your normal duties, and/or to working outside of your normal working hours, in order to facilitate business needs. You may be required, from time to time, to work at the employer’s other places of business or/and the premises of such subsidiary companies, organisations or clients premises as AFM Ireland may require.”

The Employee Handbook outlines that: “Any employee who wishes to appeal a dismissal, demotion or other disciplinary action should inform AFM Ireland within five working days from the date of notification of the decision.”   The Employee Handbook also notes that a “serious act of insubordination or refusal to carry out reasonable instructions” will be regarded as an act of gross misconduct.  The Respondent submits at no time was there a threat of Dismissal issued to the Complainants by or on behalf of the Company.  It is submitted by the Respondent that the Complainants refusal to accept the offers of alternative work in a nearby location was unreasonable. It is submitted by the Respondent that on an objective or subjective view the offers made by the Respondent to accommodate the Complainants were reasonable in all of the circumstances of the case.  The roles offered were on the same terms as those the Complainants were working under in July 2022, there was no reduction in hours or level of pay and the location of the work offered was within one kilometre of their original workplace meaning minimal displacement or disruption to their daily schedules.

The Respondent submits that they acted fairly and reasonably at all times regarding the necessity for the Complainants’ change in location of work.  The Respondent submits that it was entirely unreasonable of the Complainants to refuse to accept the proposed changes to work location.  The Respondent submits that the Complainants continued failure to choose available roles on identical terms of employment resulted in them becoming unavailable for rostering.  The Respondent submits that the Complainants failed to make themselves available for work and further submits that the Complainants were given fair and reasonable opportunities for the continuation of their employment.

The Respondent submits that the Complainants terminated their employment by not making themselves available for work.   The Complainants both stated in their WRC complaint forms that they refused to accept new roles.  Both Complainants stated in final emails to AFM that they accepted the company decided to end their employment.

The Respondent submits that the complaints of both Complainant’s should be dismissed.

Direct evidence of the Respondent witness Ms Amanda Hill HR Manager on oath (hereafter AH)

The witness states in July the Respondent received an email from the client to say one of the floors in the client building (Liberty) was going out tender and there was a requirement for adjustments in response to changing business needs and demands in respect of that building.  AH states the Respondent always starts with the full-time staff and she sent emails to the ladies on 22 July to provide them with as much notice as possible and to give them time although the new location was very close by the current location, but she wanted to give them as much time as she could.  AH states she was very surprised when they both refused and as soon as they came back from holidays, they came to see her, and she explained everything to them and that she had sourced two full time positions for them in Blanchardstown IT.   

AH makes reference to the letter she sent them on 2 August and states she was just trying to give them further options after she had spoken to them. 

In between the informal meeting on 2 August and the formal meeting on 30 August AH states she attended the site met and with the Complainant and her mother. 

AH confirms it is the Operations Director and HR determine where staff work and not the site manager.  AH confirms it is not within the remit of a site manager to initiate disciplinary proceeding.  When asked if there was a formal complaint raised about the taking of unauthorised holidays AH states there was none.  When asked if there was any appeal made to HR on foot of the ending of employment she states no.  When asked if the Complainants were dismissed, she states no they were not dismissed.  AH states she had numerous meetings with the Complainant and her mother, and she had explained to them she needed to know where they wanted to work, and the Respondent needed to know their availability for roster, and she states they just refused point blank to tell her. 

When reference is made to the two separate meetings on 30 August AH states she repeated the same two offers to them (full-time positions in Blanchardstown IT or reduced hours positions remaining in situ) and they just kept saying “I refuse.”  When asked if they understood the nature of their contract AH replies the Complainant and her mother both had copies of their contract with them at that meeting.  AH states she explained to both of them it was a form of resignation if they did not let her know which option they wanted.  AH states she did everything she possibly could for them, and she had offered the two full time Blanchardstown IT positions to them because she felt it would be an easier transition for them if she transferred them both together as they were always together. 

Cross-examination of the Respondent witness AH

Mr Marosan asks why there was someone else doing their jobs when they came back from holidays AH replies she had to have cover for them while they were away and as soon as they arrived back and notified her that they were back they were put back on the roster. 

When asked why she had not replied to the email from the Complainant stating she hadn’t resigned AH states she feels the email was not in the form of a question.  AH clarifies it is easier to move those on full time positions.  AH confirms those staff remaining on the site are working on reduced hours. 

Respondent closing submission:

When asked if he wished to make a closing submission Mr O’Sullivan states he had prepared a closing submission but he was satisfied that everything he had intended to say had already been covered and he made a brief submission to close where he made reference the matter of causation in the termination of the employment relationship.  Mr O’Sullivan submits that what brought about the end of the relationship was the unreasonable refusal of the Complainant to accept work as offered on the same terms and conditions and the refusal to give any reason or justification for such a refusal.  It is submitted the Complainant was not dismissed but that she wilfully repeatedly refused the role which constitutes a repudiatory breach of contract such that the Respondent is entitled to consider the Complainant has resigned. 

CA-00053597-001

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.  I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

I am required to make a decision on whether the Complainant was unfairly dismissed in accordance with section 6 of the Act.  This is a complaint of unfair dismissal and there must, therefore, be a dismissal within the definition of section 1 of the Act.  This encompasses where the employer terminates the relationship or where the employee shows there were constructively dismissed.  The Complainant in the within case is not claiming constructive dismissal.  This case pivots around the fundamental issue of whether an actual dismissal, as defined by the Act, has taken place. 

Did a dismissal as described in section 1 of the Act occur?

The Relevant Law:

“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;

Regarding a dispute in relation to the fact of dismissal, in the matter of Longford County Council v. Joseph McManus [UDD 1753] the Labour Court held as follows:

“As a 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 in circumstances amounting to a dismissal as that term is defined.” 

If a dismissal occurred was it unfair in accordance with section 6 of the Act?

6.—(1) 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.

From the evidence adduced at hearing it is clear the Respondent refutes the Complainant’s assertion she was dismissed by the Respondent.  The Respondent contends the Complainant’s employment came to an end as the Complainant terminated her employment by not making herself available for work despite the fact she was given fair and reasonable opportunities for the continuation of her employment with the Respondent. 

The Relevant Facts:

The question of dismissal in the within case turns on the following facts.  The Complainant was advised by the Respondent that her position in the Liberty building in which she was currently working was no longer available and she was offered a commensurate position in Blanchardstown IT some 800 metres further from her home base.  This was not acceptable to the Complainant and she indicated she did not want to move.  Accordingly, a further offer was made which would enable her to remain in situ albeit on reduced hours.  This was not acceptable to the Complainant either.  I note there was a significant level of engagement between the Respondent and the Complainant and her mother between their return from holidays at the end of July up to the middle of September. 

I note there were a number of meetings held which were attended by the Complainant and her

representative.  I note the Complainant was aware of the provisions of clause 2 of her contract of employment and the requirement for flexibility as set out in the employee handbook on the basis that she stated in direct evidence that she had read both of these.  I note that it was explained to the Complainant that it can be considered a form of resignation if the Complainant continues to refuse work that is made available to her and to continue to refuse to provide her availability for that work for the purposes of rostering.  I note the Complainant keeps insisting she has not resigned. 

Notwithstanding the Complainant’s continued insistence that she has not resigned I find the critical fact here is that the Complainant refused to return to work despite the alternative options to facilitate her so doing remaining open to her for a considerable period of time.  During this lengthy period the Complainant’s response is a blanket refusal and an insistence that the hours remain the same in the Liberty building despite the changing business needs and requirements having been explained to her at the outset and on numerous occasions. 

I am satisfied the Respondent had been strenuously trying to get the Complainant and her mother back to work but to no avail due to the blanket and obdurate refusal to do so on their part.  I am satisfied the Respondent engaged in repeated attempts to get the Complainant to clarify her position and indicate which of the roles offered she wished to take up.  I note the Complainant did not put forth any options for consideration by the Respondent.  For example, the Complainant could have requested that one of them, either herself or her mother, remain in the Liberty building as there was one full time equivalent (FTE) position available there which had been offered to them between them on reduced hours and the other could have relocated on the same full-time terms and conditions.    

The Complainant contributed nothing to the prolonged discussions on this matter apart from an insistence that she would not relocate on the same terms and conditions and an insistence that she was not resigning.  The unavoidable fact in this matter is that the Complainant chose not to return to  work when she rejected the alternative offers to do so by the Respondent and I am perplexed as to  how long she considered this impasse or stand-off would be countenanced by the Respondent or indeed by any reasonable employer. 

I am satisfied the Complainant was on notice of the consequences of her continued refusal to make herself available for work as it had been explained to her that it could be considered a form of resignation if she did not inform the Respondent which of the options of work she wished to take up.

I note the Complainant in her written submission asserts that “given the fact that the company could not offer comparable employment for the two Complainants, a redundancy payment should have been considered”.  The Complainant did not advance or engage with this assertion during hearing but for the sake of completeness I will address this matter.

The concept of comparable / alternative employment has been considered at length in the case law with particular reference to claims under the Redundancy Payments Act, 1967.  There is no dispute in the within case that the type of work offered was similar to the type of work already being undertaken by the Complainant on the same terms and conditions.   The location is 800 metres from the Complainant’s home base.  Taking the Complainant’s perspective into account using the well-established subjective test I am satisfied it if this were a complaint under the Redundancy Payments Act it would be found that it was unreasonable for the Complainant to refuse the offer on the basis of having travel an extra 800 metres.  The relevant case law confirms there exists a clear responsibility on any employer when considering the relocation of an employee that the employer must act reasonably and responsibly and within the constraints of the employee’s contractual terms both express and implied and I am satisfied the aforesaid has been established in the within case on the part of the Respondent. 

For completeness, much was made by the Complainant that the proposed relocation was as a result of taking three weeks annual leave during the summer which her new manager had objected to.  I am satisfied the Complainant and her mother had been facilitated with three consecutive weeks of annual leave during the summer by the Respondent for the entirety of their employment based on the evidence adduced at hearing.  In 2022 there was a new manager who clearly had her sights on the annual leave policy with the intention of implementing same and she articulated her objections when the Complainant advised her that she and her mother would be gone for 3 weeks as seen from the email thread set out above. 

This did not deter the Complainant and her mother and they headed off on their three consecutive weeks holiday as always.  I note this unauthorised absence did not trigger the disciplinary process in respect of the Complainant and her mother.  I note also it was not within the remit of the manager in question to initiate disciplinary proceedings in any event.   I am not persuaded by the Complainant that the fact she took three consecutive weeks annual leave is the reason for her relocation.  I am satisfied it is the Operations Director and HR who determine where staff work and not the local manager.  I am further satisfied in this by the clearly set out changing requirements and needs of the business as clarified by the Respondent.   

Turning now to the Respondent’s argument that wilfully and repeatedly refusing the role as offered by the Respondent to be a repudiatory breach of contract and by so doing the Complainant brought her employment to an end.

Repudiation can be viewed as an unwillingness or an inability to fulfil one’s contractual duty.  The factual matrix in the within case is indicative of the former.  The terms of the Complainant’s contract contain a very specific and unambiguous clause as follows:  Your employer’s premises is at Kilshane Cross, North Road, Dublin 11 but you will be required to work off-site at our client’s premises.  You will be placed where work demands which may require you to change locations to ensure that business needs are met.  You will be given as much notice of such change of work as is reasonably practical” all of which the Complainant professed awareness and understanding.   

I note and I am satisfied the Complainant was aware of the provisions of that clause as she stated in evidence that she was.  I note also the Complainant was accompanied at the various meetings with the Respondent by her representative and she would have had the benefit of his advice regarding the precariousness of her position by repeatedly refusing to make herself available for work on the same terms and conditions 800 metres further from her home base in light of her contractual obligations.  I am satisfied the Complainant was aware of the potential ramifications of her continued refusal to attend work as provided to her by the Respondent as she had the benefit of representation throughout.      

In my deliberations on this matter, I have considered the authorities underpinning the concept of repudiation of contract, as argued by the Respondent, and in particular the decision of the UK Court of Appeal in Eminence Property Development Limited v. Heaney [2010] EWCA Civ 1168, where Lord Justice Etherton set out the legal test in respect of repudiatory conduct:

“1. Whether looking at the circumstances objectively, that is from the perspective of a reasonable person in the position of the innocent party, the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract.

2. Whether or not there has been a repudiatory breach is highly fact sensitive.  That is why comparison with other cases is of limited value.

3.  All the circumstances must be taken into account insofar as they bear on an objective assessment of the intention of the contract breaker.  This means that motive, whilst irrelevant if relied upon solely to show the subjective intention of the contract breaker, may be relevant if it is something or it reflects something of which the innocent party was, or a reasonable person in his or her position would have been aware and throws light on the alleged repudiatory act would be viewed by a reasonable person.

4. Although the test for repudiatory act is simply stated, its application to the facts of a particular case may not always be easy to apply.”

Based on the facts as presented in the within case I conclude the Complainant refused to return to work and that is an unavoidable conclusion.  On this basis test at paragraph 1 of the Eminencecase set out above has been met: “the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract.”

On 31 August the Complainant emailed the Respondent as follows:

“To whom it may concern

As discussed at our meeting yesterday I do not agree to the change in the hours or location.”

On 13 September the Respondent replied as follows:

“Dear Roxana

We have received your email dated 31st August 2022, please accept this letter as confirmation that we have received your resignation.

Any outstanding monies will be issued to you on your next scheduled payment date.

Thank you for your time at AFM and we wish you well and good health in your future endeavours.

Kind regard etc.”

I must decide if the Complainant repudiated her contract, and if so, was the Respondent therefore entitled to bring the contract to an end.  The unavoidable fact is the Complainant refused to relocate

to a building 800 metres further from her home base to perform the exact same job on the exact same terms on conditions despite and following on from lengthy discussions with the Respondent on the matter during which her representative was in attendance. 

The Complainant rejected the offer on a number of occasions both in writing and at the meetings that took place.  Having considered the evidence in its entirety the critical fact in the within case is the Complainant’s refusal to return to work and I find this to be the repudiatory act.  The next step is to consider which this repudiatory act means that the Complainant dismissed herself and therefore the Respondent is discharged of any obligation to meet to meet a complaint of unfair dismissal.  I have to consider if the repudiatory act brought about an automatic end to the employment relationship.  The alternative is that the Respondent elected to dismiss the Complainant. 

I do not find the Complainant automatically dismissed herself.  I find that the Respondent elected to dismiss the Complainant in response to her continued decision to absent herself from the workplace.  Therefore, the onus rests with the Respondent to prove that the dismissal was not unfair.  

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.”

Section 7 of the Act, in relevant part, makes provision as follows:

“(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had…

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

The combined effect of the above sections of the Act requires me to consider if the Respondent’s decision to dismiss the Complainant was reasonable in the circumstances and if it was both substantively and procedurally fair.  The legislation requires that the employer must be able to show that fair procedures were followed and that there existed substantial grounds justifying the decision to dismiss. 

Accordingly, the burden of proof lies with the Respondent to show that the Complainant’s dismissal was fair.  I have to decide if the decision to dismiss was a reasonable and proportionate response to the Complainant’s conduct.  My role is to decide whether, within the so-called band of reasonableness of decision making, an employer’s decision is not unfair. 

The notion of a band of reasonableness was first endorsed by the Court of Appeal in British LeylandUK ltd v. Swift [1981] IRLR 91.  The band of reasonableness response test was articulated by Lord Denning as follows:

“The correct test is: was it reasonable for the employers to dismiss him?  If no reasonable employer would have dismissed him then the dismissal was unfair.  But if a reasonable employer might have reasonably have dismissed him, then the dismissal was fair.  It must be remembered that in all cases there is a band of reasonableness within which one employer might take one view, another quite reasonably take a different view.”

Further, in Bunyan v. United Dominions Trust [1982] ILRM 404, the EAT endorsed the view that “the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved.  The Tribunal therefore does not decide the question of whether or not, on the evidence before it, the employee should be dismissed.  The decision has been taken and our function is to test such a decision against what we consider the reasonable employer would have done and or concluded.”

For the sake of completeness, I have considered this case within the parameters of a repudiation of contract argued by the Respondent as set out above.  Notwithstanding, and for the avoidance of doubt, in the particular circumstances of this case, I am satisfied that the Complainant did effectively resign her position and the reasonable response by the Respondent in light of the Complainant’s action was justified.  Based on all the facts and the application of the law to those facts, I find the dismissal of the Complainant was both reasonable as well as substantively fair and I must now examine if it was procedurally fair prior to making a decision on whether the Complainant was unfairly dismissed.   

I am satisfied the Respondent engaged in a meaningful way with the Complainant as set out above involving numerous meetings with the Complainant during which she was represented.  I am satisfied the Complainant was made aware that her refusal to relocate could result in the termination of her employment.  Based on the totality of the evidence adduced, both written and oral, it is abundantly clear all attempts were made by the Respondent to maintain the Complainant in employment with them. 

However, I note there was no reference whatsoever made to an appeal in the email from the Respondent of 13/09/2022 albeit I note the Complainant was asked during cross examination why did she not appeal.   The importance of an appeal has been highlighted in many decisions included among which is ADJ-00000381 as follows:

 “An appeal is not just an afterthought or a procedure that must be completed as a matter of course.  It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance.  An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty proceduresor disproportionality of sanction.”

I find the failure to afford the Complainant the opportunity to appeal is contrary to the principles of natural justice and contrary to the procedures set out in S.I. No. 146 of 2000 which promotes best practice in the conduct of grievance and disciplinary procedures and emphasises the importance of procedures to ensure fairness and natural justice.  This is a procedural flaw which I cannot overlook.  While I find the dismissal of the Complainant was substantively fair, I conclude the dismissal of the Complainant was procedurally unfair within the meaning of section 6 of the Acts.  Accordingly, I find that the Complainant’s claim under the Unfair Dismissals Act, 1977 is well-founded. 

Redress

The Act requires, in determining the amount of compensation payable, that I consider the extent to which the conduct of the Complainant contributed to her dismissal.  In this regard, I find that the conduct of the Complainant contributed to the extent of 100% to her dismissal. 

While I have found that the dismissal of the Complainant was procedurally unfair, taking into account the Complainant’s contribution to her own dismissal, I am of the view that it is not appropriate to award any compensation in this case. 

CA-00053597-001

For the reasons set out above, I decide that the Complainant was unfairly dismissed.  The complaint of unfair dismissal made pursuant to the Unfair Dismissals Acts is well-founded.  I deem the amount of compensation which is just and equitable having regard to all of the circumstances is nil. 

Refusal to work; resignation; dismissal; nil compensation;