Case Number: ADJ-00000390. Workplace Relations Commission

• Docket Number: ADJ-00000390
• Date: 01 March 2016
• Court: Workplace Relations Commission
• Parties: An Employee -v- An Employer

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000390

Complaint(s)/Dispute(s) for Resolution:

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-00000550-001	30/10/2015

Date of Adjudication Hearing: 18/02/2016

Workplace Relations Commission Adjudication Officer: Ray Flaherty

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

December 2014 my Mother who lives in Spain became very ill. On or around 21st of December 2014 went to Spain. I got permission from the US 1 Co-ordinator (USC) to take unpaid leave. I went to Spain. In January 2015 I rang USC to say my Mother was still ill and I hoped to take her to her native home of the Philippines. She said fine take your time and look after it. I had brought my mother to the Philippines and she had passed away on 16th of January 2015. On the 23rd of January (or perhaps 24th) I rang and Spoke with my Assistant Manager. Told her about my Mothers death and that I had to administer her estate. Again there was no problem. Towards end of May 2015 USC told me I should contact HR to update them on my situation. In May and early June 2015 phoned HR a few times and left messages on their answering machine as there is a time difference and I couldn’t get the person in HR. In June 2015 I spoke with assistant Manager in HR (SHRS) (around the 18th of June 2015). She said that I had to decide and inform them when I was coming back as otherwise they would have to terminate my contract. I told her that I would book a ticket to come home and tell her the date. I phoned her the following day. She asked for my email address and I told her to use my nephews email address. She then sent me an e mail on 26th of June 2015 attaching my P45 terminating my employment. This was the first I had known that my employment was to be terminated. I had been told only that I had given them a date for my return which I had agreed to do once I had the ticket purchased and an exact time. The earliest return flight was the 3rd of July 2015 which I did get and returned on the 4th of July 2015 and went straight from Airport to the Company. They set up a meeting on Monday and they confirmed I was dismissed. I asked them could it be reconsidered and they said no, I was dismissed and that was that. That meeting was attended by manager of HR (HRM) and SHRS.

The Complainant's representative submitted the following in support of his claim that he was unfairly dismissed:

1. The Complainant was not notified that his employment was terminated prior to 5 June 2015. However, it was contended that the employer behaved internally as if it had been terminated without having informed the Complainant.

2. While accepting that the Respondent may have had various internal emails and phone calls in relation to the Complainant's employment status, nothing had been clearly communicated to him (the Complainant). It was contended on the Complainant's behalf that if the situation in relation to his employment status had been communicated to him, he would have had sufficient notice that his leave was no longer authorised. It was further contended that as he was not given clear communication he was unaware that the consent to his leave had been withdrawn and that his employment was in danger.

3. It was contended on the Complainant's behalf that the Respondent had all times led him to believe his leave was authorised and that the only matter to be resolved was to agree a final return date. It was contended that this was a reasonable belief on the Complainant's behalf because he had been previously allowed leave on the death of his father. It was further contended that, in agreeing a final return date, the Respondent should have given the Complainant reasonable time to organise a flight back to Ireland. It was submitted that a weekend was not sufficient notice in this regard.

4. It was submitted on behalf of the Complainant that, he had on 28 May 2015, which was prior to the termination of his contract, given notice of his return and had volunteered to book flights. However, it is contended on his behalf, that he was prevented from doing so by the Respondent, who waited until 5 June 2015 and then only gave the Complainant a weekend to organise flights.

5. It was contended that the Complainant was not notified of his right to appeal the termination of his contract. It was further contended that this was a serious breach of his constitutional right to a fair hearing and breach by the Respondents of their own disciplinary procedures.

Respondent’s Submission and Presentation:

In submissions on behalf of the Respondent, it was claimed that they had been both fair and reasonable with the Complainant at all times during his employment. Between July 2012 and September 2013, the Respondent provided the Complainant with more than six months leave, despite the operational difficulties it posed for the Respondent.

The Respondent contended that the Complainant left his place of work in December 2014, without notice, knowing that he would not be granted any further leave as such a request had been denied some 12 weeks earlier. The Respondent submitted that Complainant's sudden and lengthy absence caused significant difficulties for the Respondent as he (the Complainant) had committed to work additional hours over the Christmas period. The Respondent submitted that it was extremely difficult to find another member of staff to cover the hours at such short notice, given the time of year.

The Respondent submitted that the Complainant undertook to return to work on 5 January 2015 and 1 April 2015. However, he failed to do so on both occasions. The Respondent further contended that, despite being requested, the Complainant failed to maintain contact with the Respondent from February 2015 to May 2015. The Respondent contended that during this period the Complainant was elusive, uncontactable and remained on unauthorised leave. The Respondent contended that it was they who contacted the Complainant in order to determine his return to work date.

The Respondent contended that they were more than reasonable when they contacted the Complainant on 1 May 2015 and requested that he confirm a return to work date. The Respondent submitted that this was one month after the Complainant had originally informed the Respondent that he would return to work on 1 April 2015.

The Respondent submitted that the Complainant was given a week to provide a return to work date. However, the Respondent claimed that this turned into two weeks as the Complainant did not answer their calls. The Respondent further submitted that when contact was eventually made with the Complainant, he advised that he could not provide a return to work date and that he would need a further 3 to 4 months.

The Respondent submitted that at this stage the Complainant was advised that failure to return to work or to provide a reasonable return to work date would be viewed as him having abandoned his position. The Respondent further submitted that despite been advised in this regard, the Complainant did not offer an alternative return to work date. The Respondent submitted that this position was confirmed in writing to the Complainant after several unsuccessful attempts to contact him.

The Respondent stated in evidence that the Complainant eventually returned to Ireland in July 2015, some three months after he originally told the Respondent he would return and nearly 2 months after he had been advised that his contract was terminated. The Respondent submitted that the...