Summary Sentence:
The Complainant, a restaurant manager for the Respondent laid off during COVID-19, was found to have not been called back to work when the Respondent’s restaurant operations returned, and was therefore entitled to €9,000 compensation in respect of constructive unfair dismissal.
Background:
The Complainant was employed as a restaurant manager for the Respondent and was laid off at the start of the COVID-19 pandemic and placed on the pandemic payment supports from 17 March 2020. The Complainant remained an employee on layoff for the Respondent throughout 2020, receiving occasional written updates on his status throughout the year. In December 2020 the Complainant found that the Respondent had reopened its bar and restaurant, but had not invited the Complainant back to work. The Complainant attended the restaurant and found it fully operational. The Complainant’s solicitors attempted to contact the Respondent to confirm the position in January 2021, but it appears this communication was not received. After re-sending it in May 2021, the Respondent held an informal meeting with the Complainant, advising him that he continued to be on lay-off and that no date for return had been set.
In response, the Respondent alleged the Complainant refused an offer of work in May 2021 and had lodged complaints to the WRC prior to any opportunity arising for him to take up work.
Outcome:
The Adjudication Officeraccepted that the Respondent’s bar and restaurant had opened in December 2020 without any communication to the Complainant, even on a reduced-hours basis, and said that the Respondent’s vague answers to the Complainant’s questions were “not very respectful in a context where the Complainant had over 12 years’ service with them.” As a result, the Adjudication Officer found the complaint of unfair dismissal by way of constructive dismissal and awarded the complainant €9,000 compensation for his financial loss, having regard to his efforts to mitigate his loss and the lower-paid employment he obtained.
Practical Guidance for Employers:
If an employee is on lay-off, a business cannot sideline that employee indefinitely, particularly if the employee’s role becomes active again.
The full case is here:
https://www.workplacerelations.ie/en/cases/2024/march/adj-00033589.html
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