Complainant

Respondent

Parties

Ciara  McManamon

Di Nardi

Representatives

Self - Represented

Mr R. O’Connell – HR Consultant

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-00057881-001

24/07/2023

The Complainant was employed as a Retail Assistant in a Fast-Food outlet. The employment began on the 30th March 2019 and allegedly ended (although Respondent disputed) on the 2nd April 2013.

The rate of pay was €12.50 per hour and while variable was generally in the 12 to 18 hours per week range.

 The Complainant gave a lengthy Oral testimony supported by some relevant documents. She had been working without issue until the 5th November 2022. On this date she was given her last payment and told that the Employer would be in touch with her regarding additional hours/shifts. This never happened.

On the 21st June 2023 the Complainant contacted the Respondent by email to inquire regarding Redundancy payment. She had seen from Revenue.ie that her employment had ceased on the 2nd April 2023. Various e mails between the Parties followed. On the 12th July 2023 the Respondent sent an e mail stating that the Complainant had ended her employment by means of “Job Abandonment” and that there were no liabilities on the former Employer.

The Complainant alleged that she was due Statutory Redundancy and Minimum Statutory Notice in addition to any Unfair Dismissal award.

In discussion and cross examination by the Respondent Consultant Mr. O’Connell the key issue appeared to be a conversation that had taken place with Ms Adrianna (Ms A) of the Respondents on or about the 4th November 2022.

The Complainant was advised by the Adjudicator that she was under sworn oath. The Complainant stated clearly that she had agreed with Ms A of the Respondents that she would be available for work later in November and thereafter depending on her student/study commitments. This had been the pattern of her employment since the start. She was a Student Teacher and had numerous Class placements etc all of which had been facilitated. This was no different save for the fact that the Respondent had never offered her any further work. They had dismissed her by simply no communications to her, effectively dismissal by stealth, she alleged.

There was a major difference of recollection between herself and Ms A regarding the on or about  4th November 2022 meeting.

The Respondent made an Oral Testimony supported by some written materials. The Chief Spokesperson was Mr O’Connell, a HR Consultant. The principal Witness was Ms A, the effective day to day manager.

The Respondent was a small family run Fast Food business. Casual staff where a feature of the business as is the case in most Fast-Food businesses. The Complainant was an excellent worker, and the Respondent was always keen to facilitate her in her request for time off. It was recognised that her Studies / College Work Placements required a lot of flexibility.

In or about the 4th November 2022 the Complainant was in the final stages of her course and had approached Ms A with a request for an extended period of time off. This was agreed on the basis that the Complainant would contact Ms A whenever she was available for work. The Complainant never physically contacted the Respondent again until the e mails of the Summer of 2023 seeking Redundancy. Ms A, advised that she was under Oath, maintained strongly that the onus had always been on the Complainant to contact her, and she had put notes in the Shop diary to this effect. The Complainant lived very locally and could easily have called into the shop at any time to see what the position, as regards work, was. They would readily have taken her back /given her shifts.

As regards the date of the ending of the employment, this had never actually happened. Ms A had kept the Complainant live on the Revenue System for as long as possible on a “Zero Hours” system- some four months- although Revenue had advised only three months. At the end of four months, they had taken her off the Revenue System in the genuine belief, in their eyes, that the Complainant was never coming back.

In questioning from the Adjudication Officer, it was made clear that the Respondent had never actually formally communicated with the Complainant regarding her ending of employment. If she had come back looking for shifts, she would have been welcomed. Cross examination from the Complainant focused on widely different interpretations of the 4th November meetings.

3:1         The Legal position.

This case poses a number of Legal questions

The first being the most fundamental – did an actual dismissal from employment actually take place? Section 1 of the Unfair Dismissals Act,1977 refers to

1(a) the termination by his employer of the employee’s contact of service, whether prior notice of the termination was or was not given to the employee”

To ground a case under the Unfair Dismissal Act,1977 an employee has to establish that they were actually dismissed.

Legal precedent would indicate that taking an employee off the Revenue System, while indicative of a possible ending of employment, is not the same as a formal notice of termination. In this case the Employee had a formal contact which offered two weeks statutory notice after four years’ service. This was never paid by the Employer. They maintained that they would have welcomed her back to do shifts at any time in early 2023.

The Respondent stated under questioning and in their e mail that had never actually dismissed the employee, she had “abandoned the position”.  Accordingly with no actual dismissal a case under the UD Act,1977 was impossible.

As a second fundamental question, Abandonment is a difficult Legal concept in Employment Law. In reality understanding it comes down to a judgement as to what is Legally reasonable in a particular set of circumstances. It would not normally be seen as a substitute for standard Unfair Dismissal procedures.

In this case the Oral testimony was crucial. The first factor was that it appeared that Ms A for the Employer and the Complainant had always had an amicable relationship. The second factor was that the Complainant’s residence and the Employer’s premises were quite close by. The Town in question is not a particularly large one by Irish standards. On questioning from the Adjudication Officer, it was clear that the Complainant probably physically passed the Employer’s premises on a very regular basis.

It was never clear why the Complainant did not physically go into the Shop to enquire as to her status or to offer to do shifts. To rely on an e mail in June 2023 to the Revenue Website to establish her employment status seems a bit unusual to say the least. 

In the previous four years it was clear from the oral testimony that the Complainant had often, with the Respondent’s agreement, taken lengthy breaks from work to allow for Study / Teaching placements. The Respondent was justified in feeling this was the case here albeit for a much longer period. The claim for Redundancy was a complete “Bolt from the Blue” for them particularly when there had been no notice or any attempt at discussion.

None the less the Unfair Dismissal legal steps are set out in SI 146 of 2000Code of Practice on Grievance and Disciplinary Procedures

Formal matters are that an employee should be informed that they are being dismissed, some reason should be offered, an Investigation and Disciplinary meetings with an independent Appeal Hearing should be offered.

None of these situations happened as it was clear that the Employer/Respondent believed that they were simply keeping, what was essentially, a casual job open

In this case common sense has to apply. Both Parties knew each other well, it had been a very informal working relationship – shifts as required and agreed on a weekly basis. The Employer Witness, Ms A, was under sworn oath as was the Complainant.

From an Adjudication viewpoint It was very hard to understand how such a major difference of opinion could have arisen between the Parties and was let continue for a long period. It was not a question that the Parties were strangers to each other. Both had ample opportunity to communicate informally with each other almost on a daily basis.

.

No Dismissal letters were ever written, or any verbal communications made to the Complainant as no opportunity ever arose to do so. Likewise, the Complainant never formally informed the Respondent employer that she was not planning to come back to the Shop.

The Respondent, under sworn oath, indicated that the employment was always there. The Revenue employee registration was maintained for a considerable period even in excess of what Revenue suggested. Re activating the Revenue registration would have been a simple matter. This was not the action of an Employer seeking to dismiss an employee.

Accordingly, the decision has to be that a Dismissal / Ending of Employment never formally took place

The Complainant made absolutely no efforts to seek work in the Shop and or communicate with the Employer until she made a claim for Redundancy.

For the Employer it was not unreasonable to assume that the Complainant has “Abandoned” the position in furtherance of a Redundancy claim.  

A fault might lie with the Respondent employer in not making more strenuous efforts to establish from the Complainant if she was ever coming back to the Shop. However, in the light of previous absences on Study leave, School job placements etc this might be excused.

In conclusion the view has to be that having reviewed all the evidence presented , especially the Oral testimony ,no Dismissal took place. Accordingly under the Unfair Dismissals Act,1977 a claim cannot be properly made.

Unfair Dismissal, Abandonment of Position.