Workplace Relations Commission (WRC) - RECENT Decisions & judgements
ADJ-00018410
Complainant unsuccessful in alleged unfair dismissal
The Complainant was employed by the Respondent as a Supervisor from 15th December 2015 until 5th June 2018 when he claimed he was unfairly dismissed.
The Respondent raised that the Complainant resigned and was not dismissed. The Respondent stated that the Complainant took up new employment elsewhere and conveyed this to the Area Manager at a meeting in July 2018.
The Respondent outlined that an incident took place in late May 2018 between the Complainant and a work colleague.
The Store Manager stated that she met with the Complainant on or about 3rd June 2018 and tried to resolve the matter informally. The Store Manager stated that she had formed the view, based on her own experience, that the Complainant was unwell and should not be at work.
The Complainant alleges that he was dismissed by the Store Manager at a meeting on 5th June 2018. The Complainant stated that the Store Manager told him that she had formed the view he was not fit to be at work and that his future shifts were cancelled and that he was dismissed. The Complainant stated that there were no performance issues, there were no disciplinary warnings in place and there had been no complaint made in relation to the incident that occurred in May 2018 between the Complainant and his work colleague. The Complainant stated that the Store Manager attempted to investigate the incident that occurred without any formal grievance having been raised and simply took it upon herself to dismiss him from his employment. The Complainant stated that after the meeting with the Store Manager he sent a text message to the Area Manager on 10th June 2018 seeking confirmation of his dismissal and that his P45 be issued to him.
The Respondent stated that the Area Manager confirmed to the Complainant that, despite his understanding from his conversation with the Store Manager, he was not dismissed. The Area Manager stated in evidence that she met with the Complainant on two occasions; 13th June 2018 and the 11th July 2018. The Area Manager outlined that at the meeting on the 13th June 2018, she confirmed to the Complainant that he was not dismissed. The Area Manager confirmed that the Complainant had 73 hours of annual leave due to him and he agreed to take his annual leave until the end of June 2018. The Area Manager stated that at the meeting on the 11th July 2018, the Complainant stated that he would be unable to return to the workplace and in any event had commenced a new job painting and was also commencing a sales job later in July 2018. The Area Manager confirmed that having given his verbal resignation at the meeting on 11th July 2018, the Complainant confirmed his resignation by text on 16th July 2018 and that this was accepted by the Respondent.
In all of the circumstances of this complaint, it was found that while the Complainant may have initially considered himself dismissed by the Store Manager, it was quickly clarified to him by the Area Manager that he was not dismissed. Following the meeting with the Area Manager on 13th June 2018, the Complainant appears to have accepted that he was not dismissed as he sought to take his annual leave entitlements after the alleged dismissal date.
In a follow up meeting with the Area Manager on the 11th July 2018, after the period of annual leave had ended, the Complainant verbalised his resignation as he had commenced employment elsewhere and was also starting a new job later that month. The resignation was then confirmed in writing by text/what’s app message to the Area Manager on 16th July 2018.
It was concluded on the balance of probabilities that the Complainant resigned from his employment and was not dismissed. Therefore, the complaint of alleged unfair dismissal is not well founded.
ADJ-00020152
Employee terminated on the grounds of incapacity
The Complainant was employed by the Respondent for 5 years and 9 months. She contends that she was owed an amount for payment in lieu of annual leave (Payment of Wages Act 1991), that she was unfairly dismissed due to ill health (Unfair Dismissals Act 1977) and that, having almost 6 years’ service she should have received a redundancy payment.
In relation to her claim of unfair dismissal, the Complainant stated that she was out sick following her maternity leave, that in June 2018 she was called to a meeting, that the Company insisted on holding meetings in her house, that she was not allowing access to her medical records by non-qualified persons and that she believes this was the main reason for her dismissal.
The Respondent reviewed if any payment was due to the Complainant in relation to accrued annual leave. Following the hearing, the Respondent advised that the sum of €791.19 was outstanding and undertook to pay the Complainant that sum.
The Complainant was on long term sick leave from February 2018, following a period of maternity leave. A number of absence review meetings were held with her from June 2018 to January 2019. At this last meeting, the Complainant was accompanied by her mother. The Complainant had refused to sign medical consent forms on the advice of her doctor. However, this was not the reason she was dismissed, contrary to her belief that it was the reason for dismissal.
Following the meeting on 25th January 2019, the Respondent wrote to the Complainant advising her that as she was not in a position to return to work for the foreseeable future and given the Complainant’s absence with little prospect of return, the Respondent had no choice but to terminate the Complainant’s employment on grounds of incapacity. She was given the right to appeal, but did not exercise this right. It is argued that the Respondent kept in regular contact with the Complainant and informed her that she was at risk of dismissal, and this is in keeping with the test applied in Bolger v Showerings (Ireland) Limited [1990] ELR 184:
If an employee is dismissed by reason of that employee’s incapability, it is sufficient that the employer honestly believes on reasonable grounds that the employee is incapable. In that case Judge Lardner found that for the employer to show that the dismissal was fair, he must show that:
(1) It was the ill-health which was the reason for his dismissal;
(2) that this was the substantial reason;
(3) that the employee received fair notice that the question of his dismissal for incapacity was being considered, and;
(4) that the employee was afforded an opportunity of being heard.
It is argued that in this instant case all elements of the test applied and the Complainant, being unfit for work with no prospect of returning to work, was not unfairly dismissed, and that the Complainant, not having been made redundant, is not entitled to a redundancy payment.
In regards the payment in lieu of annual leave it was decided that this complaint was well founded and if not already implemented, the Respondent is required to pay to the Complainant the sum of €791.19 within six weeks of the date of this decision.
Complainant unsuccessful in alleged unfair dismissal
The Complainant was employed by the Respondent as a Supervisor from 15th December 2015 until 5th June 2018 when he claimed he was unfairly dismissed.
The Respondent raised that the Complainant resigned and was not dismissed. The Respondent stated that the Complainant took up new employment elsewhere and conveyed this to the Area Manager at a meeting in July 2018.
The Respondent outlined that an incident took place in late May 2018 between the Complainant and a work colleague.
The Store Manager stated that she met with the Complainant on or about 3rd June 2018 and tried to resolve the matter informally. The Store Manager stated that she had formed the view, based on her own experience, that the Complainant was unwell and should not be at work.
The Complainant alleges that he was dismissed by the Store Manager at a meeting on 5th June 2018. The Complainant stated that the Store Manager told him that she had formed the view he was not fit to be at work and that his future shifts were cancelled and that he was dismissed. The Complainant stated that there were no performance issues, there were no disciplinary warnings in place and there had been no complaint made in relation to the incident that occurred in May 2018 between the Complainant and his work colleague. The Complainant stated that the Store Manager attempted to investigate the incident that occurred without any formal grievance having been raised and simply took it upon herself to dismiss him from his employment. The Complainant stated that after the meeting with the Store Manager he sent a text message to the Area Manager on 10th June 2018 seeking confirmation of his dismissal and that his P45 be issued to him.
The Respondent stated that the Area Manager confirmed to the Complainant that, despite his understanding from his conversation with the Store Manager, he was not dismissed. The Area Manager stated in evidence that she met with the Complainant on two occasions; 13th June 2018 and the 11th July 2018. The Area Manager outlined that at the meeting on the 13th June 2018, she confirmed to the Complainant that he was not dismissed. The Area Manager confirmed that the Complainant had 73 hours of annual leave due to him and he agreed to take his annual leave until the end of June 2018. The Area Manager stated that at the meeting on the 11th July 2018, the Complainant stated that he would be unable to return to the workplace and in any event had commenced a new job painting and was also commencing a sales job later in July 2018. The Area Manager confirmed that having given his verbal resignation at the meeting on 11th July 2018, the Complainant confirmed his resignation by text on 16th July 2018 and that this was accepted by the Respondent.
In all of the circumstances of this complaint, it was found that while the Complainant may have initially considered himself dismissed by the Store Manager, it was quickly clarified to him by the Area Manager that he was not dismissed. Following the meeting with the Area Manager on 13th June 2018, the Complainant appears to have accepted that he was not dismissed as he sought to take his annual leave entitlements after the alleged dismissal date.
In a follow up meeting with the Area Manager on the 11th July 2018, after the period of annual leave had ended, the Complainant verbalised his resignation as he had commenced employment elsewhere and was also starting a new job later that month. The resignation was then confirmed in writing by text/what’s app message to the Area Manager on 16th July 2018.
It was concluded on the balance of probabilities that the Complainant resigned from his employment and was not dismissed. Therefore, the complaint of alleged unfair dismissal is not well founded.
ADJ-00020152
Employee terminated on the grounds of incapacity
The Complainant was employed by the Respondent for 5 years and 9 months. She contends that she was owed an amount for payment in lieu of annual leave (Payment of Wages Act 1991), that she was unfairly dismissed due to ill health (Unfair Dismissals Act 1977) and that, having almost 6 years’ service she should have received a redundancy payment.
In relation to her claim of unfair dismissal, the Complainant stated that she was out sick following her maternity leave, that in June 2018 she was called to a meeting, that the Company insisted on holding meetings in her house, that she was not allowing access to her medical records by non-qualified persons and that she believes this was the main reason for her dismissal.
The Respondent reviewed if any payment was due to the Complainant in relation to accrued annual leave. Following the hearing, the Respondent advised that the sum of €791.19 was outstanding and undertook to pay the Complainant that sum.
The Complainant was on long term sick leave from February 2018, following a period of maternity leave. A number of absence review meetings were held with her from June 2018 to January 2019. At this last meeting, the Complainant was accompanied by her mother. The Complainant had refused to sign medical consent forms on the advice of her doctor. However, this was not the reason she was dismissed, contrary to her belief that it was the reason for dismissal.
Following the meeting on 25th January 2019, the Respondent wrote to the Complainant advising her that as she was not in a position to return to work for the foreseeable future and given the Complainant’s absence with little prospect of return, the Respondent had no choice but to terminate the Complainant’s employment on grounds of incapacity. She was given the right to appeal, but did not exercise this right. It is argued that the Respondent kept in regular contact with the Complainant and informed her that she was at risk of dismissal, and this is in keeping with the test applied in Bolger v Showerings (Ireland) Limited [1990] ELR 184:
If an employee is dismissed by reason of that employee’s incapability, it is sufficient that the employer honestly believes on reasonable grounds that the employee is incapable. In that case Judge Lardner found that for the employer to show that the dismissal was fair, he must show that:
(1) It was the ill-health which was the reason for his dismissal;
(2) that this was the substantial reason;
(3) that the employee received fair notice that the question of his dismissal for incapacity was being considered, and;
(4) that the employee was afforded an opportunity of being heard.
It is argued that in this instant case all elements of the test applied and the Complainant, being unfit for work with no prospect of returning to work, was not unfairly dismissed, and that the Complainant, not having been made redundant, is not entitled to a redundancy payment.
In regards the payment in lieu of annual leave it was decided that this complaint was well founded and if not already implemented, the Respondent is required to pay to the Complainant the sum of €791.19 within six weeks of the date of this decision.
Note on WRC:
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
Adare Human Resource Management is one of Ireland’s leading Employment Law and Human Resource Management Consultancies. Our HR & Employment Law Support Services include:
www.adarehrm.ie
- Advice on all Employment Law, Industrial Relations and HR queries or issues
- Review, Development and Implementation of Contracts of Employment and Employee Policies and Procedures
- Management and Employee Training - Dignity at Work, Anti-Harassment and Sexual Harassment, Conducting Disciplinary Meetings
- Investigations - independent investigations on behalf of Organisations in line with the relevant legislation and codes of practice
- Organisational Management or Change Management Initiatives – including review / development of Performance Appraisal / Management Systems and Organisational Development
www.adarehrm.ie
