Facts: The Complainants in Ms Roxana Doba v AFM Facilities Limited ADJ-00043540 and Ms...

Facts:

The Complainants in Ms Roxana Doba v AFM Facilities Limited ADJ-00043540 and Ms Lacramioara Doba v AFM Facilities Limited ADJ-00043189 were mother and daughter who were employed by the Respondent from 3rd April 2017 until 16th September 2022. Both Complainants worked as cleaners, with the mother (Lacramioara) working as a supervisor. They were initially employed by Ashbrook Facilities Management Limited, but transferred to the Respondent company under TUPE on 1st May 2022. The complaints lodged on behalf of the Complainants were virtually identical, leading to the issuing of two very similar decisions.

The Complainants’ position was that “[e]verything started” when they took three weeks of annual leave, which they did every year. They submitted that after they returned from annual leave, they were informed of changes to their place of work and hours of work. The Complainants claimed that they were initially informed that the changes were being made because they took three weeks of annual leave. The Complainants refused to accept the changes because they believed that their hours were still available at their original place of work, and because they regarded the changes as “punishment” for taking three weeks of annual leave which their new manager had informed them was not permitted. They pointed to an email which, they argued, demonstrated that they had been threatened with dismissal if they took their annual leave as planned. They claimed that they were unfairly dismissed by the Respondent when their employment was terminated because they would not accept the changes.

In contrast, the Respondent’s position was that the changes were necessitated as a result of a reduction in their client’s cleaning requirements in the client site where the Complainants had worked. The Respondent offered the Complainants identical work, on the same terms and conditions, in a different client building which was less than one kilometre from their previous place of work. The Complainants were given four weeks’ notice of the changes and the Respondent engaged significantly with them, and permitted them to be accompanied by professional representation at meetings with the Respondent. They were also given the option of working reduced hours in their original place of work. They refused both options.

The Respondent submitted that the Complainants refused to make themselves available for work, which refusal was unreasonable, and that it was entitled to treat such refusal as resignation. The Respondent’s position was that there was no dismissal and therefore no unfair dismissal.

Decision:

In this case, the fact of dismissal was in dispute, meaning that two elements fell for consideration. Firstly, whether or not a dismissal within the meaning of section 1 of the Unfair Dismissals Acts 1977 – 2015 (the “Acts”) occurred; and secondly, if a dismissal had occurred, whether or not it was unfair within the meaning of section 6 of the Acts. It was therefore for the Complainants to satisfy the Adjudicator that they were dismissed, and for the Respondent to establish that, if they were dismissed, their dismissal was substantively and procedurally fair.

The Adjudicator, Eileen Campbell, remarked on the “significant level of engagement” between the Respondent and the Complainants from the time they returned from annual leave at the end of July 2022 until their employment ended in mid-September 2022. She noted that a number of meetings had taken place, and that the Complainants were accompanied at those meetings by their representative. She also noted that the Complainants were aware of the provisions of clause 2 of their contracts of employment, and of the flexibility requirement contained in the employee handbook. Clause 2 of their contracts of employment provided as follows:

“Place of Work: Your employer’s premises is at Kilshane Cross, North Road, Dublin 11 but you will be required to work off-site at our client’s premises. You will be placed where work demands which may require you to change locations to ensure that business needs are met. You will be given as much notice of such change of work as is reasonably practical.”

The Adjudicator accepted that the Complainants had been informed that it could be considered a form of resignation if they continued to refuse to confirm their availability for work to the Respondent. In each of the cases, the Adjudicator found that, notwithstanding the Complainants’ insistence that they did not resign, the “critical fact” was that they refused to return to work despite alternative options to facilitate them doing so. She referred to the Complainants’ response during the entire period as a “blanket and obdurate refusal” notwithstanding the Respondent having repeatedly explained to them the change in business needs and requirements necessitating the changes. The Adjudicator noted that the Respondent had been “strenuously trying” to get the Complainants back to work.

The Adjudicator further noted that neither of the Complainants had themselves put forward any alternative options, and in both cases, she remarked as follows:

“The Complainant contributed nothing to the prolonged discussions on this matter apart from an insistence that she would not relocate on the same terms and conditions and an insistence that she was not resigning. The unavoidable fact in this matter is that the Complainant chose not to return to work when she rejected the alternative offers to do so by the Respondent and I am perplexed as to how long she considered this impasse or stand-off would be countenanced by the Respondent or indeed by any reasonable employer.”

The Adjudicator found that the Complainants had been put on notice of the potential consequences of their continued refusal to make themselves available for work. She was not satisfied that the changes were a form of “punishment” for taking annual leave, noting that the Respondent would have been entitled to, but did not, initiate disciplinary action in relation to their unauthorised absence. She accepted that the changes were required because of changing requirements and business needs.

The Adjudicator found that the wilful and repeated refusal of the Complainants to accept the options proposed by the Respondent amounted to a repudiatory breach of contract, demonstrating “an intention to abandon and altogether refuse to perform the contract.” In doing so, she referred to the legal test set out in the decision of the UK Court of Appeal in Eminence Property Development Limited v Heaney [2010] EWCA Civ 1168.

The Adjudicator then considered whether (i) the repudiatory act brought about the automatic end to the employment relationship or (ii) the Respondent elected to dismiss the Complainants. While acknowledging that the Complainants had “effectively” resigned from their positions, the Adjudicator found that the Complainants’ employment did not automatically come to an end as a result of their repudiatory acts. Instead, she found that the Respondent had chosen to dismiss them as a result of their repudiatory acts. The Adjudicator was satisfied that it was reasonable for the Respondent to do so, finding that their dismissals were “both reasonable as well as substantively fair”.

Notwithstanding the above, the Adjudicator went on to find that the Complainants were unfairly dismissed because their dismissals were not procedurally fair. While the Adjudicator was satisfied that the Respondent engaged in a meaningful way with the Complainants and “all attempts were made” to maintain them in employment, she found that the failure to offer them an appeal was a procedural flaw that rendered their dismissals unfair. It is worth noting that the Complainants were cross examined as to why they did not appeal, and the employee handbook clearly referred to a right to appeal in the context of a dismissal. However, the Adjudicator was critical of the absence of any reference to an appeal mechanism in the emails that the Respondent issued to the Complainants informing them that it had “received” their resignations.

Award:

While the Adjudicator found that the Complainants were unfairly dismissed, she awarded no compensation on the basis that, in her view, the Complainants contributed 100% to their dismissals.

Takeaway for Employers:

These cases are interesting in considering the circumstances in which an employer may treat the actions of an employee as amounting to a repudiatory breach of his or her contract of employment. Unfortunately, the decisions do not explain why the Adjudicator decided that the repudiatory acts did not bring about an automatic end to the Complainants’ employment, and that the Respondent had elected to dismiss them. It would have been helpful to have seen the Adjudicator’s reasoning, particularly in circumstances where she found that they had “effectively” resigned. This element of the decisions is key; had the Adjudicator found that the Complainants’ employment automatically came to an end as a result of their repudiatory acts, there would have been no unfair dismissal.

The cases are also interesting in respect of the emphasis placed on the Respondent’s failure to inform the Complainants that they had a right of appeal, which was fatal in this case. The Respondent presumably did not do so because they treated the Complainants’ refusal as a resignation. What will be regarded as sufficient notification appears to differ in the case law in this area.

Links - https://www.workplacerelations.ie/en/cases/2024/january/adj-00043540.html; https://www.workplacerelations.ie/en/cases/2024/january/adj-00043189.html

Author – Jenny Wakely