UDD1725

The Complaint

The Complainant claims that he was dismissed by text message by Mr William Daly, the Managing Director of the Company, on the 22^ndDecember 2015 following an exchange that took place on 18th December between him and Gerard Maune, another Director of the Company. Mr Daly denies dismissing the Complainant.

Background

On 18th December 2015 the Complainant received his Christmas payslip along with a small Christmas bonus from Mr Maune. He advised Mr Maune that the amount was a bit light. Mr Maune says he then said that he would see the Complainant on Monday who replied that he would not be coming to work that day, was now on his Christmas holidays but would be available to come to work should an emergency arise with one of its major customers.

There were different opinions as to whether the Respondent Company had closed for the Christmas Holidays on the 18^thor was in fact working until the 23^rd. The Complainant says there was no work scheduled for the 21^stor 22^ndbut that he was available to come in to deal with emergencies. He also says he was due holidays for those days. The Respondent submits that the Company was remaining open until the 23^rdand all staff were expected to turn in to work.

The Complainant did not turn up for work on Monday 21^stDecember. However an emergency arose and the Respondent, after several failed attempts, contacted the Complainant who came to work on Tuesday 22^ndDecember to deal with it.

That evening he received a text message in the following terms from Mr Daly, who was on holiday in Australia,

“Just letting you know. Don’t come back until I come back. From what I’ve been told and what I’ve picked up from you all year you probably need to move on.”

The following exchange then took place

Complainant “Are you leaving me go??”

Mr Daly “I think you left yourself do that”.

Complainant “If you are letting me go give it to me in writing please

Mr Daly “Is it a letter or a chq you want

ComplainantThe letter will do

The final text message between the two on the evening of 22^ndDecember was from Mr Daly and stated as follows:

Mr Daly"You can go on 2 days a week and make up your own mind. If Mondays and Tuesdays don’t suit you. Let me know what days actually does or if I have to organise maybe different hours to suit your needs maybe you could write to my office and let us know. We can work around you the same as always john. You can ask susan to do a letter for you. Shes back on the 4^th. These texts cost me a fortune so Happy Christmas."

No further exchanges took place until Mr Daly returned from holiday on the 11^thJanuary 2016.

Position of the Parties

The Complainant told the Court that he understood that the exchange of texts that took place on the 22^ndDecember constituted a dismissal. He made particular reference to the following exchange

Complainant “Are you leaving me go??”

Mr Daly “I think you left yourself do that”.

He told the Court that at that point he formed the view that he had been dismissed.

He further told the Court that the final text message from Mr Daly on the evening of the 22^ndDecember was an attempt to change the basis of his employment from full time to part time and to reduce his hours and pay accordingly. He submits that if the exchange did not amount to dismissal this attempt to change his working hours, conditions of employment and pay amounts to redundancy within the meaning of the Act.

Mr Daly told the Court that the Complainant had been talking about setting up his own business for some time. He formed the view that that was the Complainant’s preferred option. He said that he had been told by another employee of this that the Complainant had been rude and offensive to him when he rang him to deal with the emergency on the 21^stDecember. He said that he sent the text message on the 22^ndDecember after he had been so advised in order to ensure that there were no further incidents until he returned to Ireland in January. He said he never intended dismissing the Complainant and made reference to efforts made by Mr Maune to contact him in early January to secure his return to work, efforts that were not successful because he was using an old phone number for the Complainant. He said that on his return to Ireland he sought to engage further with the Complainant to settle matters. However he did not succeed in that endeavour.

He said he considered offering the Complainant redundancy pay but his accountant advised that he could not do that as he would need to replace him in order to conduct the business in the future.

Finally he said that he did not replace the Complainant and that his job remained open for him to return to work. He said that following the departure of the Complainant he utilised sub-contractors to cover the Complainant's work where he needed to.

Mr Maune told the Court that he had a brief conversation with the Complainant on the 18^thDecember during which he gave him his Christmas pay-slip and a Christmas Bonus in cash. He said he would see him on Monday 21^stbut that the Complainant said he would not be turning up on Monday and that he (Mr Maune) probably wouldn't see him (the Complainant) at all. The Complainant did not turn up for work on the 21^stbut did turn up to deal with an emergency on the 22^nd. He said he had no further interaction with the Complainant other than a failed effort to contact him to return to work in early January.

Mr Stephen Liston told the Court that he was working with the Complainant on the 18^thDecember 2015 and returned to the depot with him at the end of his shift. He said he was a witness to the exchange between Mr Maune and the Complainant. He said that the Complainant was polite and courteous to Mr Maune. He said that he was a casual worker and was not required to work week commencing 21^stDecember. He said that he understood that the business was closed from the 18^thother than for emergencies which the Complainant said he would make himself available to cover.

Issue

The Court must decide whether the exchange of text messages on the 22^ndDecember and the treatment of the Complainant subsequently amounted to a dismissal or a declaration of redundancy as claimed by him.

Having listened carefully to the evidence before it the Court finds that the Respondent did not intend to dismiss the Complainant by text message on the 22^ndDecember 2015. The messages , when read together, make it clear that there was an issue to be dealt with regarding the Complainant’s continued employment. This is clear in the final text message in which Mr Daly suggests that the Complainant contact “Susan” to discuss alternative arrangements and convinces the Court that the employment relationship was in the process of being changed but had not at that point reached a definitive point.

The Court further finds that the Complainant, at that point, did not have grounds for deciding that he had been dismissed. He was well aware that the matter had not been finalised but was in the process of being addressed and would be finalised upon Mr Daly’s return in January.

In January Mr Daly could have reinstated the Complainant to his job and discussed alternatives with him when he returned to work after his trip in the week ending on Friday 15^thJanuary. That is what he would have done if he had no intention to alter the Complainant’s employment relationship with the Company. Instead he engaged in a protracted process of meetings and exchanges with the Complainant.

Having examined the evidence in relation to these meetings and exchanges the Court finds that the Respondent had decided to restructure the business including utilising sub-contractors not employees. The engagement with the Complainant, it seems, was the initial steps in a process of converting his position from employee into a sub-contractor who would not be employed by the respondent.

The Court is fortified in this view by the evidence of Mr Daly himself when he said that he had not replaced the Complainant but instead had delivered his services through sub-contractors rather than direct labour. The Court is not persuaded by his claim that he did this to protect the Complainant’s job and keep it available for him to return to.

Decision

The Court therefore finds that the Respondent restructured its business in January 2016 and made the Complainant's position redundant. Accordingly he is entitled to a statutory redundancy payment for his service with the Company from 1^stJuly 2010 to 15^thJanuary 2016.

Finally the Court finds that the complaint of unfair dismissal is not well founded.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
6 June 2017______________________
MNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.