{"id":51310,"date":"2025-08-20T08:51:38","date_gmt":"2025-08-20T08:51:38","guid":{"rendered":"https:\/\/my.legal500.com\/developments\/?post_type=legal_developments&p=51310"},"modified":"2025-08-20T08:51:38","modified_gmt":"2025-08-20T08:51:38","slug":"wrc-finds-unfair-dismissal-where-employer-failed-to-engage-with-employee-during-period-of-absence","status":"publish","type":"legal_developments","link":"https:\/\/my.legal500.com\/developments\/thought-leadership\/wrc-finds-unfair-dismissal-where-employer-failed-to-engage-with-employee-during-period-of-absence\/","title":{"rendered":"WRC Finds Unfair Dismissal where Employer Failed to Engage with Employee during Period of Absence"},"content":{"rendered":"

In Barry Colclough v Grange Mockler Holdings Ltd t\/a Lanigan\u2019s Bar (ADJ-00050044)<\/em> the Complainant claimed that he was unfairly or constructively dismissed from his employment as Head Door Supervisor with the Respondent in breach of section 8 of the Unfair Dismissals Acts 1977 \u2013 2015.<\/strong><\/p>\n

<\/p>\n

Facts:<\/strong> The Complainant was a Head Door Supervisor with the Respondent and commenced employment on 15th<\/sup> March 2013. He was promoted to Head Door Supervisor in early 2016, and had a great working relationship with the Respondent up until September 2023.<\/p>\n

In September 2023, two new door staff started work. The Complainant was assured that he would remain in his role as Head Door Supervisor. However, the Complainant was unhappy with the arrangement, and stated that he was bullied by the new door staff and that he was not treated with the respect that he deserved and expected as a long-term employee and a Head Doorman. The Complainant asked for two weeks\u2019 leave to reflect on his position.<\/p>\n

The Complainant acknowledged that he was subsequently involved in an altercation with the new door staff, where Gardai who were passing by asked the parties to move along. Mr Lanigan, Director of the Respondent,\u00a0told the WRC that he expected an apology for what happened that night.<\/p>\n

The Complainant submitted in his evidence that his last pay day was 28th<\/sup> August 2023, and that his last day of work was 15th<\/sup> September 2023. The Complainant gave evidence that, since that date, he had not received any communication from the Respondent, despite his numerous attempts to contact him, including via Facebook, telephone and text messages on WhatsApp. Mr Lanigan denied recollection of having received any texts from the Complainant during this time, but was aware that the Complainant wished to continue working after his two-week break. At the hearing, the Complainant stated that he was waiting for the Respondent to contact him with his roster. Given the circumstances, he believed that another company was now supplying door staff and that he had been removed from the roster. The Complainant gave evidence that he sent the Respondent three letters: one dated 24th<\/sup> October 2023 in which he requested a written statement outlining the reason for his dismissal and requiring a response within 14 days, followed by further letters in January 2024 and February 2024. The Complainant did not receive a response to those letters.<\/p>\n

Mr Lanigan denied blocking the Complainant\u2019s phone number and denied dismissing him. He confirmed that the Complainant was still employed. When asked about whether or not there was an employment contract and grievance policy, Mr Lanigan stated that the Complainant had started working a long time ago and that, while he was provided with a contract, he had refused to sign it.<\/p>\n

Decision: <\/strong>The Adjudicator,\u00dana Glazier-Farmer, upheld the Complainant\u2019s claim that he was unfairly dismissed by the Respondent.<\/p>\n

Dismissal was at issue in this case. While the \u201cgeneral sequence\u201d of events was not in dispute between the parties, what was disputed by the Respondent was the Complainant\u2019s efforts to contact Mr Lanigan, with the exception of a registered letter in January 2024 which the Respondent accepted had been received. This letter set out the Complainant\u2019s employment history, his September 2023 leave, his attempts to contact Mr Lanigan, and a reference to having been refused entry to the premises. The letter also made reference to a complaint being lodged with the WRC.<\/p>\n

There was no evidence that the Respondent replied to the letter or took any steps to rebut the claims therein. The Adjudicator found this particularly surprising in circumstances where the Complainant, a long-term employee, had been absent since the previous September without explanation. The Adjudicator stated as follows:<\/p>\n

\u201cWhere there is an onus on the Respondent to actively manage its staff in the event of an unknown or unauthorised absence, it is incumbent on the Respondent to engage with the employee. An employer cannot simply sit back and ignore an absent employee.\u201d<\/em><\/p>\n

The Adjudicator found that an expression of a desire to end employment in the future does not constitute a resignation, and pointed out that there was no letter of resignation or any formal notification from the Complainant to the Respondent expressing such a desire.<\/p>\n

The Adjudicator found that the Respondent\u2019s failure to engage with or, at a minimum, respond to the January 2024 registered letter amounted to its dismissal of the Complainant within the meaning of the Unfair Dismissals Acts. The Adjudicator also found that the Complainant\u2019s dismissal was unfair. In doing so, she referred to the burden of proof on the Respondent to demonstrate that the Complainant\u2019s dismissal was justified, the presumption that the dismissal of an employee is unfair unless there are \u201csubstantial grounds\u201d justifying the dismissal, and the requirement to consider the reasonableness or otherwise of an employer in dismissing an employee. She also noted the complete lack of fair procedures in this case.<\/p>\n

As the Complainant was found to have been unfairly dismissed, the Adjudicator found that he had not been constructively dismissed. The Complainant was awarded the sum of \u20ac6,750 in compensation for the 27 weeks he was out of work.<\/p>\n

Takeaway for Employers:<\/strong> This decision is notable in respect of the finding that a failure on the part of the Respondent to engage with the Complainant during a period of \u201cunknown\u201d or \u201cunauthorised\u201d absence constituted its dismissal of the Complainant. In other words, it was the Respondent\u2019s failure to act that was found to amount to its dismissal of the Complainant. Ordinarily \u201cdismissal\u201d by an employer requires a positive action on the employer\u2019s part to terminate an employee\u2019s contract of employment.<\/p>\n

From time to time, employers may find themselves in a situation where an employee is absent without authorisation and\/or without explanation. This case highlights that there is an obligation on employers to try and engage with an employee in such circumstances. While the accepted receipt of the January 2024 registered letter, and the Respondent\u2019s failure to respond to same, were key in this particular case, employers cannot simply sit back and do nothing if an employee fails to turn up to work.<\/p>\n

Link:<\/strong> ADJ-00050044 – Workplace Relations Commission<\/a><\/p>\n

Authors – Abigail Ansell and Jenny Wakely<\/em><\/p>\n

21st<\/sup> July 2025<\/p>\n

Anne O\u2019Connell Solicitors<\/strong><\/p>\n

19-22 Lower Baggot Street<\/p>\n

Dublin 2.<\/p>\n

www.aocsolicitors.ie<\/a><\/p>\n","protected":false},"featured_media":0,"template":"","class_list":["post-51310","legal_developments","type-legal_developments","status-publish","hentry"],"acf":[],"_links":{"self":[{"href":"https:\/\/my.legal500.com\/developments\/wp-json\/wp\/v2\/legal_developments\/51310","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/my.legal500.com\/developments\/wp-json\/wp\/v2\/legal_developments"}],"about":[{"href":"https:\/\/my.legal500.com\/developments\/wp-json\/wp\/v2\/types\/legal_developments"}],"wp:attachment":[{"href":"https:\/\/my.legal500.com\/developments\/wp-json\/wp\/v2\/media?parent=51310"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}