This week we look at a recent Workplace Relations Commission (WRC) case in which an employee claimed to have been unfairly dismissed after he took what the employer classed as unauthorised annual leave. Our Elizabeth Murphy and Adrian Twomey highlight the key points to note in the case of Maloney v Griffin Autos Limited, ADJ-00044464.
The Complainant, Gary Maloney, was employed as a senior car sales executive with the Respondent, Griffin Autos Limited, from 4 October 2021 to 8 October 2022. The employee claimed that he was unfairly dismissed from his job without any investigation having been conducted and without being warned that his employment was at risk.
Mr. Maloney claimed to have requested annual leave approximately three months before taking a holiday, by speaking with the accountant who oversaw such requests. The accountant told him to speak with the Managing Director about the matter. The Managing Director, in turn, told Mr. Maloney that he had a family wedding that same week and had hoped to have a full crew working in the dealership while he was gone. The Complainant explained that his girlfriend had already booked a holiday and that there was a 'no cancellation' policy. Mr. Maloney maintained that the Managing Director then told him that it should be fine and to speak to management again before his requested leave dates. The employee maintained that he subsequently asked to speak with one of the Directors of the company ten days before his holiday, but that the Director was unable to speak with him.
The company told the WRC that it operated annual leave on a first come, first served basis and depending on business needs. The two parties disagreed on the exact facts regarding conversations that took place in relation to the annual leave request. The company contended that Mr. Maloney was clearly told that he could not take annual leave on the relevant dates. Mr. Maloney denied that allegation.
In any event, Mr. Maloney went on his holiday. The two parties disagreed as to whether or not he was contacted during his holiday with the company stating that it had made numerous efforts to reach him. While he was on holidays, the employee met the Managing Director’s brother. He sent a picture of them to the Managing Director, asking if he was also on holiday in Portugal. The Managing Director stated that he saw the Complainant in a bar later that day.
According to Mr. Maloney, when he returned from holiday, he found that a colleague had taken his desk. His line manager asked where he had been the previous week. The Complainant told him that he had been on annual leave. The line manager stated that no-one knew where Mr. Maloney had been for the week, and then sent him home, telling him to wait for a call from one of the directors. Mr. Maloney never received a call but later received an email detailing his holiday pay.
In an entirely different version of events, the company submitted that, upon the employee’s return to work, he had a conversation with his line manager during which he handed back his work laptop and said, “ah, we’ll leave it, I’m done anyway”.
The employee said that he checked with Revenue and found out that his employment had ceased on 8 October 2022. The company denied dismissing the Complainant, stating that it had a good working relationship with him but that he had resigned after he returned from Portugal.
The Adjudication Officer concluded:
"I accept the Complainant's evidence that he was told to leave the premises and that the employer would be in contact. No evidence has been provided of any investigation into the incident or disciplinary procedure applied by the Respondent following the Complainant's return from annual leave. The Respondent has failed to discharge the statutory burden. I find the dismissal of the Complainant is unfair on both procedural and substantive grounds."
The employee was awarded €12,500 in circumstances where he had found alternative employment quite quickly afterwards and was regarded as having contributed to his own dismissal.
Mr. Maloney's story is not an uncommon one. We have been involved in a number of almost identical cases in the past. So what can employers learn from the case? We would suggest that:
1. It is important that employers have a clear process to be followed when employees are applying for leave and that leave is either being granted or refused. If there was, for example, an email trail regarding the leave application, there would have been less room for argument in this case.
2. Where employees resign, it is important to have a written record of that fact. Ideally, the employee will furnish their employer with a letter of resignation and identify why they have decided to move on. However, even where the employee fails or refuses to confirm their resignation in writing, the employer should write to them, noting the fact of resignation, how it was communicated, when and to whom. That will help if the employee later denies having resigned and brings a claim.
3. If an employer is dismissing an employee for misconduct, they must first hold a disciplinary hearing and follow the rules of natural justice. They may also, in certain circumstances, be required to conduct an investigation before proceeding to a disciplinary hearing.
Employers who require advice in relation to dismissals or any aspect of employment law can contact our Adrian Twomey.