Background:

The Complainant had been employed as a barperson for the Respondent, a pub operator, for 17 years prior (broken only by a period of “lay off” during the COVID-19 pandemic) to her alleged termination. This period of “lay-off” was alleged by the Respondent to be a break in the Complainant’s employment, thus making her consecutive period of service prior to the incidents in question less than one year and barring her from protection under the Unfair Dismissals Act 1977.

On 17 March 2022, the Complainant was having a drink in the Respondent’s premises while not working and was involved in an altercation with a patron of the pub and was ultimately hit with a glass in the face. The Complainant felt that she had not been adequately assisted by one of the co-owners present at the time of the incident and alleged no one asked after her wellbeing afterward. The next day, 18 March 2022, the Complainant contacted this co-owner while working and told her, in an agitated and profane manner, that the co-owner had not done what she should have in the circumstances, and that the Complainant would need to go home for the day.

As the Complainant was leaving, another manager of the Respondent arrived. The Complainant claimed the manager asked for the Complainant’s keys as the manager had left their own and was advised that she was not being fired and would be called when required. The Respondent alleged the Complainant had thrown her keys on the floor of the pub and said “I’m out of here, I’m finished,” causing the Respondent to believe she was resigning. The Complainant claimed she was never contacted subsequently for further work by the Respondent, and the Respondent claimed they attempted to call the Complainant on several occasions without success.

Outcome:

On the point regarding “lay-off,” the Adjudication Officer found the period of time which the Complainant was not working for the Respondent and the Respondent’s premises were closed due to the COVID-19 pandemic should not be considered a “break” in service for the purposes of consecutive service and the Unfair Dismissals Act 1977.

Noting the “several conflicts of evidence” between the Complainant and the Respondent, the Adjudication Officer said it was clear that the employment relationship between the parties had ended on 18 March 2022. The question which arose for adjudication was whether this was a resignation or a dismissal. The Adjudication Officer found the Respondent was not reasonable in finding that the Complainant’s words as stated on 18 March 2022 could be construed as resignation. The Adjudication Officer said it was an employer’s obligation to confirm a resignation, although he said the Respondent also bore some responsibility for the confusion which arose. This finding meant that the Respondent had dismissed the Complainant.

The Adjudication Officer found in favour of the Complainant in her claim for unfair dismissal, awarding €6,480 or 12 weeks’ pay. In addition, the Respondent did not provide statutory notice required after its dismissal and the Complainant was awarded a further eight weeks' pay - €4,320, under the Minimum Notice and Terms of Employment Act 1973. The Respondent also did not pay the Complainant in lieu of accrued public holidays and could not show how much annual leave the Complainant had accrued as it held no records in respect of leave, resulting in further awards of €120 in respect of the missed public holidays and €1,080 in respect of accrued annual leave. Finally, the Complainant and Respondent agreed that no formal written contract of employment existed between the parties. The lack of such a contract over a period of 17 years of employment was found to be “an inconsiderate approach to the rights of an employee” and “unacceptable” by the Adjudication Officer and resulted in a further award of €2,160.

Practical Guidance for Employers:

1. Periods during COVID-19 where employees were unable to work due to the temporary closure of their employer may be disregarded as “breaks” in service under the Unfair Dismissals Act 1977.
2. Employers have an obligation to confirm a resignation and cannot eagerly “grasp” an opportunity to claim resignation from an angry or distressed employee in the moment.
3. Failures to keep adequate records, such as leave records and contracts of employment, can be “tossed in” to any dispute and result in significant additional awards – in this case those failures cost €3,420 on top of the substantive claims otherwise made.

The full case is here:
https://www.workplacerelations.ie/en/cases/2023/august/adj-00039565.html