UDD255

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00042866 (CA-00053275-003)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 07 March 2024 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 21 January 2025.

The following is the Decision of the Court:-

DECISION:

This is an appeal by Mr Elborhamy (the Complainant) against Adjudication Officer’s Decision ADJ-00042866 CA-00053275-003 given under the Unfair Dismissals Acts 1977 to 2015 (the Act’s) in a claim against his previous employer Aramark Catering Ltd (the Respondent) that he was unfairly dismissed. The Adjudication Officer held that he did not have jurisdiction to hear the matter.

The complaint was lodged with the WRC on 14 October 2022, appealed to the Labour Court 7 March 2024. A Labour Court hearing was held on 21 January 2025. The Complainant commenced employment with the Respondent as a Chef in January 2001. While the fact of dismissal is not in dispute the date of dismissal is. The Complainant states that he was dismissed on 6 June 2022. The Respondent states he was dismissed 9 February 2023. The relevant period for the purpose of the Act is 15 May 2022 to 14 October 2022. The jurisdiction of the Court is limited to considering a dismissal within that timeframe. The parties agreed that the Court should hear the parties in the first instance in respect of date of dismissal.

2 Summary of Respondents submission

IBEC on behalf of the Respondent stated that there was some history between the Complainant and the Head Chef going back to 2019, but it was their understanding that a meeting took place and that by June 2019 this had been resolved and everyone had agreed to move on from the incident.

The site was closed on several occasions during Covid. The Complainant was contacted on 28 September 2021 to see when he could return to work after Covid so he could be included on the roster. He returned to work on the 8 November 2021. On 9 November 2021 he did not attend work stating that he had issues with the Head Chef and setting out in an email what his issues were.

On 11 November 2021 the Complainant submitted a sick certificate and sought a response to the issues he had raised in his earlier email. On 15 November 2021 the Complainant was provided with a copy of the Respondent policies and advised how he could make a complaint and who to make the complaint to. There was a further exchange of emails resulting in the Complainant confirming by email of 26 November that he wished to proceed with mediation.  On 24 December 2021 he was advised that the appointed mediator would be in contact in due course to arrange the mediation.

On 29 April 2022 the Complainant submitted a holiday request form from 14th May until 14 October 2022. At the time he was advised that his annual leave entitlement would not cover that period, but he could submit a request for parental leave. The Complainant submitted a request for 16 consecutive weeks parental leave.  The Complainant commenced his annual leave on 21 May 2022 and following that went on parental leave from 9 July 2022 to 14 October 2022. He was due to return to work on 15 October 2022. On 10 October 2022 the Head Chef sent him a WhatsApp message to confirm his return-to-work date as 14 October 2022 but received no response.

On 14 October 2022 the Complainant sent an email outlining complaints against the organisation and stating that he believed his removal from the Kitchen roster on 6 June 2022 while on annual leave was a termination of his contract. On the same day a data access request was received from a legal firm acting on his behalf along with a copy of a WRC complaint form which had been submitted on that date.

On 27 October 2022 the Respondent issued a response to the two letters advising that the Respondent deals directly with its employees, that his data access request was being processed, explaining that his name was not removed from the roster but was hidden on the printed spread sheet while he was on leave. 

The letter went on to say that he was still employed, and his current absence was considered an unauthorised absence and that he should contact Ms Lawless People, Culture and Compliance Manager to confirm he was returning to work no later than 5.pm on Friday 4th November 2022.

The letter confirmed that once he returned to work all the matters, he raised in his email of 14 October 2022 would be investigated and reminded him of the services of the EAP and Mental Health Champion. The letter was sent by registered post and email to the Complainant. The Complainant signed for the letter and the Respondent also received confirmation that the email was received.

The Complainant did not contact the Respondent and on 17th November 2022, Ms Lawless again wrote to the Complainant asking him to contact her no later than five days from the date of the letter. He was advised that if he failed to contact the organisation, he could face disciplinary charges for unauthorised absence.  No response was received.

The Complainant was issued with an invite to a disciplinary meeting for 8 December 2022 in respect of his unauthorised absence. He was informed that if he did not attend it would proceed in his absence. The Complainant did not attend and on 19th December he was issued with a final written warning and informed that further instances could result in disciplinary action up to and including dismissal. He was also advised of his right of appeal. The Complainant still did not make contact with the organisation.  On 13 January 2023 the Complainant was invited to another disciplinary hearing for continued unauthorised absence. He again failed to show.

On 9 February 2023 the Complainant was informed that his employment was terminated that he could appeal that decision, and he was paid eight weeks’ notice pay.  On each occasion the Respondent sent the correspondence by registered post which was signed for by the Complainant and by email which was delivered. The Complainant was dismissed on 9 February 2023 for failing to engage with his Employer and unauthorised absence following a fair procedure which he refused to engage with.

3 Summary of Complainants submission

Mr McGovern BL submitted that the Complainant was dismissed on 6 June 2022 when his name was left off the roster. It was the company policy that even when people were on leave their names would remain on the roster.  The Complainant was due to return to work on 15 October 2022 after annual leave and parental leave, which means in line with normal practise he should have been contacted around 1 October 2022 as rosters are done two weeks in advance. It will be his evidence that he was not contacted by his Employer at that time.

Mr Mc Govern BL submitted that the Complainant was dismissed without any process being followed and therefore the dismissal had to be unfair.

4 Complainant’s evidence

The Complainant in his evidence to the Court stated that his name was on the roster for the first two weeks of his annual leave then it was removed. The roster was shown to him by a colleague. He had issues with another chef that in his view were never properly resolved.  

The roster was done two weeks in advance, but he was never contacted two weeks before his return-to-work date of 15 October 2022.

When he was told that his name was off the roster on 6 June 2022, he knew he was sacked but he did not write to the Employer at that time.  It was his evidence that he sought advice and was told to wait to see what happened when he was due to return to work in October 2022.

When he was not contacted two weeks before the 15 October 2022, this confirmed for him that he had been sacked on the 6 June 2022. It was his evidence that he did not receive the text message on 10 October 2022 enquiring about his return-to-work date.

Under cross examination the Complainant confirmed that he submitted the letter to his employer alleging he was dismissed on 6 June 2022 on the last day of his parental leave 14 October 2022, the same day his complaint was submitted to the WRC. He confirmed that he continued to receive payslips after the 6 June 2022 and received weekly pay for his annual leave up until he went on a parental leave on 9 July 2022.  He could offer no explanation as to why the Respondent would keep issuing him with payslips if he had been sacked on 6th June or how he could be on parental leave from 9 July 2022 to 15 October 2022 (which he did not dispute) if he had been sacked on 6 June 2022.

 It was put to the Complainant that he had not been removed from the roster but that when people are on annual leave they can be hidden on the roster. Two examples were shown to the witness one showing him and the second one his name was hidden. He accepted that there is a hidden option on excel spread sheets that could do that. It was further put to him that as there are over a 100 staff it makes sense to only print out the name of people rostered to work in the relevant period.  He did not dispute that.

He also confirmed that he had signed for the registered post sent by the Respondent and that he not replied to same.

5 Discussion and Decision

It was for the Complainant to establish that he was dismissed on 6 June 2022.  It was his evidence to the Court that he was relying on the fact that his name was not on a printed roster on 6 June 2022. He confirmed to the Court that the Respondent continued paying him after that date and continued providing him with payslips.

He also confirmed that on the 9 July 2022 he moved from annual leave to parental leave. He confirmed that he was due back to work on 15 October. He denied receiving the WhatsApp message of 10th October although it was clear from the screen shot that the message had been delivered.

The Complainant in his sworn evidence stated that he was expecting to hear two weeks before his return-to-work date and had not heard anything. The Complainant in his submission and evidence to the Court has failed to establish that he was dismissed on 6 June 2022.

The Complainant has failed to identify a breach of the Act during the relevant period and therefore his complaint must fail.

The appeal fails. The decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AL	______________________
13th February	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Amy Leonard, Court Secretary.