Case Number: ADJ-00000426. Workplace Relations Commission

• Docket Number: ADJ-00000426
• Date: 01 March 2016
• Court: Workplace Relations Commission
• Parties: An Employee -v- An Employer

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000426

Complaints 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-00000641-001	05/11/2015
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00000641-002	05/11/2015

Date of Adjudication Hearing: 08/12/2015

Workplace Relations Commission Adjudication Officer: Patsy Doyle

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 complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. The claim for Minimum Notice was added at the hearing on the consent of the Employer, thus replacing the claim under the Payment of Wages Act 1991.

Complainant’s Submission and Presentation:

The Complainant commenced work as a cashier /Administrator for the respondent on 12 March 2012. She worked a forty hour week on €400 gross. She enjoyed her work and worked at the Casino in tandem with her husband. They often swopped shifts to accommodate family life and this was accepted by the respondent. In March 2015, the complainant had cause to query with the Department of Social Protection whether the correct PRSI payment was made while she was on parental leave. She discovered a discrepancy and raises the matter with the respondent.

A NERA investigation occurred around the same period and the employees received contracts of employment. The complainant understood that staff relations between management and staff changed for the worse after this.

On 31 Oct, 2015, the complainant was rostered to work 17.00hrs to Midnight shift but wished to remain home that evening to participate with her children in “ Trick or Treat “. Her husband sought to change her shift, whereby he would undertake the shift in addition to his shift. The usual decision maker, Ms C, was not available and he contacted Mr M, the proprietor, who refused, citing any discretionary treatment of the complainant and her husband had now ceased. The Complainants husband was informed by the respondent that the complainant was to attend for her shift or be replaced.

The complainant contacted the respondent directly and an argument ensued. The complainant contended that a shift swop with her husband had been permitted in the past, but if it was being refused, she would attend for work at 17.00hrs. The complainant understood that the respondent told her to stay at home an in the event that a replacement could not be found, the casino would be closed. The Complainant presented a copy of the casino roster dated 14-20 August 2015, where she pointed to a 13 hr shift permitted for another employee. The Complainant told the hearing that she had spoken with her husband during the course of the afternoon and was apprehensive in case she was subjected to disciplinary action . She told the hearing that her husband the subject of a disciplinary sanction in August 2015.

The complainant attended for work to find the respondent and a replacement in situ. She was told to go home. She sought confirmation of this in writing and she received a handwritten note from the respondent stating that she was his best worker. The complainant became upset and approached the respondent to say that she was upset by what had happened and wished to go home. She placed her keys with the respondent and left.

The Complainant remained at home for the two subsequent working days and made contact with a Manager at the respondent premises on the third day to be told that they were preparing her P45 as the respondent had informed the staff that the complainant had resigned. She told the Manager that she had not resigned from the employment. She had not worked since leaving the respondent company and was studying part time at CIT.

The Complainant disputed that she had resigned from the employment and requested that the Adjudicator deem the dismissal as unfair under S6 (1) of the Unfair Dismissals Act 1977-2007. With the consent of the employer, the claim under the Payment of Wages Act 1991 was substituted as a claim for two weeks payment in lieu of notice under Section 3 of the Minimum notice and terms of employment Act 1973. It was common case that the claims for minimum notice was not administratively possible at the out set of the claim

Respondent’s Submission and Presentation

The respondent owned a number of gaming arcades. It was accepted that the complainant worked for the respondent since March 2012 and that she was an excellent worker. On 31 October, 2015, the respondent was on his way to Dublin when he received a call at approximately 3 pm from the Complainants husband informing him that the complainant was not coming to work that evening and that he was covering the shift. The respondent rejected this plan as double shifts were not permissible. The respondent told the Hearing that Ms C normally managed requests for time off but she was at a wedding on that day. He told the complainant’s husband that he would arrange cover for the complainant. The respondent explained that the employee who did the extended day was in fact a one day a week employee which contrasted with the complainant .

The Respondent turned back and went to the casino where he met both the booked replacement and the complainant at 17.00hrs. He recalled the complainant asking for a letter confirming that she would be paid for the night. He agreed and furnished the complainant with the letter where he complemented her work performance as his best employee. The respondent recalled a disagreement where the Complainant then refused to work and where she walked out of the casino. On 3 November, the respondent issued a clarification of events to the complainant. This emphasised that a resignation had been effected, with a post script stating “Your P 45 will be sent in the post “. This was sent on by email to the complainant on 3^rd November 2015.

The respondent contended that the events of 31 October 2015 constituted a resignation without notice from the complainant and that he had no liability towards her. As an employer, he contended that he was not under an obligation to permit two employees, i.e. husband and wife to alternate shifts and two hours notice as a preface to a shift change was unacceptable. The respondent had concerns that he was losing business at the casino and he stated that he was uneasy with the complainant’s husband’s customer relations style. This was in contrast to the complainants positive work performance. He contended that he had acted reasonably and had supported both the complainant and her family throughout the course of her employment. He felt let down .He believed that by finding a replacement at short notice for the complainant he acted as a responsible employer should.

Towards the end of the hearing, the respondent representative informed the hearing that the respondent accepted that a misunderstanding may have occurred and that the respondent would be in a position to offer to re-instate the complainant. The hearing adjourned to consider the proposal. The Complainant considered the proposal but remarked that too much had happened and that she was unable to see a way back to the employment.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair...