Complainant

Respondent

Anonymised Parties

A dispatch & delivery supervisor

A specialist food company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00007542-001

10/Oct/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00007542-002

10/Oct/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00007542-003

10/Oct/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00007542-004

10/Oct/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00007542-005

10/Oct/2016

On April 2nd 2015, a new computer system went live in the respondent company. Early that morning, there were problems with the system and the complainant and the General Manager had an argument, during which the general manager shouted at the complainant. After the row, around 10.00am, the complainant left work and never returned. Over the course of the following 12 months, he sent in medical certificates stating that he was suffering from anxiety. He claims that his employment was terminated on April 11th 2016.   The respondent’s case is that he repudiated his contract of employment.

The fact of dismissal was in dispute and the burden of proof was on the complainant to show that he was dismissed.

The respondent company is a specialist food business, importing, selling and delivering delicatessen items to food retailers around Ireland. In 2009, the complainant started off as a general operative and in 2013, he was promoted to the job of Dispatch and Delivery Supervisor.

April 2nd 2015 – the Complainant’s Last Day at Work

In 2014, the company commenced a project to upgrade their order and delivery system. In his evidence, the complainant said that he and the General Manager (“GM”), who he reports to, had not been getting on from the previous December, when he felt he was blamed for problems with some of the drivers. He also complained that his 2014 bonus was reduced to 80% because of delays with deliveries and difficulties between him and some of the drivers and sales representatives.

Coming up to the go-live day on the new system, the complainant said that he didn’t get adequate training and the system wasn’t working properly. He said he complained to GM, who he said, told him he should be happy to have a job. A document submitted by the respondent showed that seven days’ training was arranged with the system’s software provider. The complainant agreed in evidence that he didn’t attend one of the training days as it was his day off.

The complainant said that he arrived for work at 8.00am on April 2nd and listened to voicemails from customers with their orders for that day. He entered the orders into the system and prepared a schedule for the drivers to do the deliveries. He said that he knew that things weren’t going well and he contacted GM and the software provider. The drivers loaded the vans, but the system would not allow him to print invoices, so they all had to wait in the yard. When GM arrived, he was annoyed about the vans being still in the yard, and the complainant said that that he started to “shout in my face.” He said that this felt “like a physical attack” and he was shocked and upset. He returned to his desk, turned off his computer and left and went straight to his doctor. He said that he didn’t go back to work because he was afraid of GM.  

Absence due to Anxiety and Depression

For 12 months from April 2nd 2015, the complainant submitted medical certificates stating that he was suffering from anxiety. In his evidence, he said that he accepted his doctor’s advice not to return to work and he went on medication. He said that he was depressed and that he had suicidal thoughts.

On May 12th, the HR Manager (“HR”) sent the complainant an e mail requesting him to attend an appointment on May 20th with a doctor at Medmark, the company’s occupational health consultants. However, the complainant replied on May 18th and said that he had a “very important personal arrangement” on May 20th and that he would not attend. He asked why his complaint had not been investigated and he said that he felt it would be impossible to return to work as he would be a target for further bullying.

Following a re-scheduled appointment with Medmark on May 27th, the occupational consultant gave an opinion that the complainant was not fit for work but that he was fit to engage in a process to resolve his grievance with his employer.   In his report, the doctor summarised the complainant’s current state of health:

“(The complainant) has been absent from work since April 2 due to work-related stress. Since his absence from the workplace, I gather that his symptoms appear to be stabilising to a degree. He informed me that he has attempted to communicate with his employer to engage in a resolution process with regard to the points raised earlier in this report, however, he reported that, in his opinion, the process has not yet commenced. (The complainant) stated that he remained somewhat apprehensive in engaging in a resolution process given his stated difficulties in the workplace and also a perception on his behalf that the matter will not be resolved in an impartial manner.”

HR sent the medical report to the complainant on Friday, June 5th, and invited him to attend a meeting the following Tuesday. On the Monday before the meeting, the complainant wrote to say that he was not fit to engage in the investigation of his grievance.   Although further efforts were made by the respondent to have a meeting with the complainant, he did not attend, but continued to submit medical certificates.

On January 20th 2016, the complainant returned to Medmark for a second consultation, following which the doctor gave an opinion that he was fit to return to work:

“I discussed a return to work process with (the complainant) and whilst he appeared to acknowledge that an investigation had been conducted by his employer, he stated that, in his opinion, the process was unfair and not representative of the actual events which occurred.   Furthermore, (the complainant) also reiterated that no face to face meeting has occurred between himself and his employer. (The complainant) stated that it was his preference to meet outside of his normal place of employment and not directly with his manager with whom he stated he had a dispute.

“Given the above, (the complainant) stated that he was not prepared to return to work until the work-related allegations have been resolved.   He further stated that he was apprehensive about returning to work to an environment in which he was allegedly bullied.

“In my opinion, based on my assessment today, I believe that (the complainant) continued to remain fit to engage in dialogue and/or a resolution process. Furthermore, in my opinion, I believe that (the complainant) was capable of performing his role as a delivery and dispatch supervisor and, therefore, would be fit to resume these duties. I discussed my findings with (the complainant), however, he reiterated that he was unwilling to return to the workplace until the work-related dispute has been resolved to his satisfaction.”

On foot of this report, the complainant was invited to a meeting with HR and GM, with a suggestion that he would return to work on February 9th. The complainant refused to attend the meeting and on February 8th, HR wrote to him and stated:

“If you do not resume your work tomorrow, you will be in breach of your contract of employment. I hope that you have not decided to resign.”

On February 18th, in response to the complainant sending in a further medical certificate, HR wrote to the complainant:

“I furnished you with a medical report from the occupational health consultant with Medmark on 1 February 2016 which states that you are fit to work.

“A medical certificate from your GP is not sufficient to counter such a report.

“However, if you wish, you may submit a medical report from your own appointed occupational therapist to be considered.”

The complainant responded saying that he couldn’t afford to go to a specialist to get an opinion about his fitness for work and he stated that “I got convinced that I am already fired.”

HR responded to this e mail on February 26th:

“I do not understand how you could think that you were ‘fired’ or that we are trying to ‘get rid of you.’

I have sent you a number of e mails trying to get you to return to work and to meet with GM and myself to give you reassurance that any concerns you have are misplaced and also to ensure that there is good working relationship between you and GM going forward. You have declined my invitations for meetings without explanation.

As we have a medical report confirming that you are fit to return to work, a medical certificate from your GP is not sufficient to explain why he/she disagrees with the medical report.

I suggest that you furnish us with a detailed medical report from your GP including a return to work date if you cannot afford to go to an occupational therapist. We will then ask Medmark to consider this report in light of their examination of you.”

On March 16th, in response to another cert, HR wrote to the complainant:

“As you have failed to return, engage with us in relation to your return and/or furnish (sic) with a medical report contradicting Medmark’s medical report deeming you fit to return to work, it is clear that you have no intention of returning to work and that you have unfortunately repudiated your contract of employment. You are therefore no longer required to furnish us with sick certificates.

“We are very disappointed that you decided to take this approach to your position with us but we wish you all the best in the future.

Please contact me if you have changed your mind.”

In cross-examination, the complainant was asked what he thought of this e mail and the request to contact HR if he had not resigned. He replied “I left everything with my solicitor.”

In an e mail on April 11th, the complainant was requested to return company property in his possession and informed that any final payment due to him would be processed and sent on. At the hearing, he said that this mail convinced him that he had been dismissed.   In response, the complainant’s solicitor responded on April 15th stating that:

“At no stage has my client resigned from his employment.   It was on foot of your e mail correspondence that my client was of the opinion that his employment had been terminated.”

On April 18th, HR reiterated her view that the complainant had resigned and stated that his P45 would be issued.

In direct evidence, the complainant was asked for his view about the respondent’s statements in these e mails that he had resigned. He responded, “they didn’t give me any choice.”

It is the complainant’s position that he never indicated that he was resigning and he repeatedly denied that he resigned. However, HR considered the complainant’s failure to return to work on foot of the Medmark report as a resignation. The complainant argues that, in reaching such a conclusion, this action on the part of HR was a dismissal.

Evidence of the Complainant’s Colleague

This colleague was a driver in the company who said that he filled in for the complainant when he was on days off. He said that he was familiar with the new IT system and that separate modules had been developed for the warehouse, logistics and finance departments, with each of the modules connected to a database. This colleague’s evidence was that the testing on the new system was inadequate. He said that GM spent all night before April 2nd trying to make sure everything was working. On the day in question, the only thing not working was the invoice printer, which meant that all the invoices had to be printed manually. When he was asked in evidence what the cause of the problem was, he said, “no proper testing.”

In cross-examination, Ms O’Connell asked the colleague to say what his role in the company was and he said he was a driver. He said he was not given specialist training, although he said that he asked a few times.

Complaint of Bullying and Harassment

HR was not in Ireland on April 2nd and when she was informed that the complainant had left the workplace, she tried to contact him on the phone, but with no success. GM also phoned him and left a message asking him to get in touch. Shortly after 2.00pm, HR sent an e mail to the complainant:

“Hi (complainant)

“I heard you left work this morning after a discussion with (GM). We tried to reach you at differing times but you are not answering our calls.   We called your wife and she could not disclose where you were. You are not returning our calls and we do not know what your intentions are.

“Whatever the reasons behind your discussions with (GM) it is not acceptable to leave your office and duties out of the blue without letting us know what your intentions are. Any problem can be solved sitting down and finding a solution together.

“I am therefore asking you to get in touch with us immediately.”

Responding to this mail at 5.20pm, the complainant said that he felt intimidated and humiliated by GM and he attached a medical certificate which indicated that he was suffering from anxiety.

It is the complainant’s position that it was only following the involvement of his solicitor on August 6th that HR “eventually started a formal investigation.” On August 25th, HR wrote to the complainant’s solicitor stating that she had started an investigation but that it could not be advanced because the complainant had not attended a meeting with her. Her e mail to the solicitor concluded:

“I request again that (the complainant) attend a meeting with me as part of the investigation and to hopefully facilitate his return to work on Tuesday the 1st September at 11.00am in our office. If (the complainant) refuses to attend this meeting, we will be left with no option to assume (sic) that he has resigned from his position.”

In his evidence at the hearing, the complainant said that he wanted someone else to conduct the investigation other than HR, and he wanted to meet outside the workplace.   He did not attend this meeting and his solicitor requested copies of documents compiled as part of the investigation so far. Another meeting was scheduled for September 8th. On September 7th, the complainant’s solicitor suggested that, as HR was not independent, she was not a suitable person to carry out the investigation. The solicitor also requested permission to attend any meeting with the complainant, but this was refused. The complainant did not attend the meeting. On September 9th, the solicitor agreed that the complainant would take a phone call from HR at 2.00pm that day. Both sides agree that the call lasted about 45 minutes and afterwards, HR sent what she described as the “minutes” of the call to the solicitor.   From the complainant’s perspective, a crucial omission from the minutes is the fact that HR told the complainant on the phone that GM apologised for shouting at him. 

In the report of her investigation into the complainant’s allegation of intimidation and humiliation, HR stated:

“In your case, I would not find any substantial evidence that you have been the victim of bullying or harassment in the workplace nor could I find any evidence of any physical attack or threatening behaviour on the part of (GM)…On the contrary, you seem to have a good relationship and (GM) always has a professional and courteous tone when talking to you, as confirmed by the witness I interviewed.”

The report concludes:

“My findings, following from the above is that your complaints are not upheld. I suggest that you return to work, as the occupational doctor suggests, and, without adjusting your salary, carry out a different role, with less responsibility, to help you to return to the working life.

“I am ready to talk with you, anytime, about the kind of tasks that you would like to carry out in the company and agree on reintroduction to the company life step by step, starting part-time and eventually returning to your role.”

With the report having concluded that there was no substance to the complainant’s grievance, he was offered the opportunity to appeal, but the appeal was to be heard by HR’s husband, one of the founders of the company. He did not appeal and continued to send in medical certificates.   It is the complainant’s position that the investigation was “wholly inadequate and could not be relied upon to support a fair or reasonable conclusion.”

The Complainant was not Dismissed

There is no dispute about the chronology of events set out in the previous section, but the events themselves are seen in a different perspective. The respondent’s view is that the complainant obstructed the investigation into his complaint of intimidation and refused to engage with his employer to find a resolution.

Having been assessed as fit to return to work on January 20th 2016, the complainant did not come back to work and continued to send in medical certificates stating that he was suffering from anxiety.

It is the respondent’s position that the complainant was not dismissed. They were eager for him to return to work and did not want him to resign. It is their view that he withdrew his services and refused to engage with the company, and in this way, he “repudiated his contract.” On two occasions, he was offered an opportunity to change his mind about not returning to work, but he didn’t return. In cross-examination, he was asked by counsel for the respondent, “what outcome would have allowed you to go back to work?” He said that he was waiting for the outcome of the investigation.   When it was pointed out to him that the investigation was completed in October 2015, he said that HR wasn’t independent and that it should have been conducted by someone other than an owner of the company.

Also during cross-examination, the complainant was asked about an allegation of bullying that another employee (“JO”) had made against him, sometime in 2013. The investigation into this complaint was carried out by HR and the complainant was interviewed as part of the process.   It was suggested to him that GM had helped him to deal with this complaint. He replied that GM wanted JO to come back to work. He himself was put on a performance improvement plan.   It appears that the point of raising GO’s complaint in evidence was to point out that the investigation was carried out by HR, and that she remained an appropriate person to carry out the investigation into the complainant’s grievance.

In support of the respondent’s position that the complainant was not dismissed, Ms O’Connell made the following arguments:

The complainant was found to be medically fit to return to work and the respondent was entitled to rely on the Medmark report of January 20th 2016, which stated that he was fit to return.

The respondent never intended to terminate the complainant’s employment and was eager for him to return to work, once he was fit to do so. When he was considered by the occupational doctor as fit to return, HR arranged a meeting and proposed that he should return on a specific date, February 9th 2016. The complainant refused to attend a meeting or to return to work.   The respondent sent nine e mails to the complainant and four e mails to his solicitors in an effort to encourage the complainant to return to work, but he did not return.

It is the respondent’s case that the complainant’s refusal to meet with them or to return to work without justification amounts to a fundamental breach of his contract.   The UK case of Rasool v Hepworth Pipe Company Limited [1980] IRLR 88, was referred to where Waterhouse J analysed two groups of fundamental breaches of contract:

“(i) those which, being or entailing a deliberate curtailment of the contract effectively terminate it…

(ii) those which merely entitle the other party at his option to treat it as discharged by ‘accepting’ the repudiation.”

For the respondent, Ms O’Connell submitted that the complainant’s actions fall into the first category above, where, by not returning to work, he effectively terminated his contract of employment. In her view, the respondent did not have an option to ignore the breach and carry on the contract. This was further evidenced by the fact that the complainant refused to re-consider his position when given the opportunity to do so. On April 11th and 15th, when they stated that the complainant had not resigned, his solicitors did not indicate that he intended to engage with the respondent, return to work or produce a medical report to challenge the opinion of the respondent’s occupational consultant.

Although the complainant did not lodge a formal grievance (his grievance was set out in an e mail sent at 5.20pm on April 2nd), his complaint of intimidation and humiliation was investigated and the investigation was concluded three months before he was found to be fit to return to work.

The complainant informed the doctor that he did not want to return. The respondent sent an e mail to reassure him that he had nothing to be concerned about and that they were looking forward to his return. HR arranged to meet the complainant to address his concerns. The complainant refused to engage with the respondent or return to work. The complainant’s refusal to return to work showed a clear intention to abandon his contract of employment. This conduct went to the root of his contract, which, in the respondent’s opinion, could not continue to exist.

The respondent submitted that the complainant failed to provide any evidence that the respondent dismissed him or that they had any intention of dismissing him.

Was the Complainant Dismissed?

The respondent’s position is that the complainant was not dismissed but that he “repudiated his contract of employment,” and, by so doing, he brought his employment to an end.   They argue that the repudiation had the “automatic” effect of terminating the complainant’s employment.     For the respondent, Ms O’Connell referred to a number of precedents which deal with the concept of repudiation.   I found that the most useful is the decision of the UK Court of Appeal in Eminence Property Development Limited v Heany [2010] EWCA Civ 1168, where Lord Justice Etherton set out the legal test in respect of repudiatory conduct:

“1. Whether looking at the circumstances objectively, that is from the perspective of a reasonable person in the position of the innocent party, the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract.

2. Whether or not there has been a repudiatory breach is highly fact-sensitive. That is why comparison with other cases is of limited value.

3. All the circumstances must be taken into account insofar as they bear on an objective assessment of the intention of the contract breaker. This means that motive, whilst irrelevant if relied upon solely to show the subjective intention of the contract breaker, may be relevant if it is something or it reflects something of which the innocent party was, or a reasonable person in his or her position would have been aware and throws light on the way the alleged repudiatory act would be viewed by such a reasonable person.

4. Although the test for repudiatory act is simply stated, its application to the facts of a particular case may not always be easy to apply.”

The question of dismissal in this case turns on the following facts:

The complainant was absent due to illness for one year and there was no indication from him or his GP of when he would be fit to return to work.

On January 20th 2016, when the occupational health consultant informed him that, in his opinion, he was fit to return to work, the complainant “reiterated that he was unwilling to return to the workplace until the work-related dispute had been resolved to his satisfaction.”

The dispute between the complainant and GM was not resolved to his satisfaction and this had been communicated to him the previous October, when his complaint of humiliation and intimidation was not upheld. He did not appeal the outcome, although he sought an extension of time to do so.

The correspondence between the complainant and the respondent from February to April 2016 consists of the respondent stating that the complainant repudiated his contract and resigned and the complainant insisting that he had not resigned.

Weighing up these points, I have come to the conclusion that the complainant did not intend to return to work and in fact, he refused to return. On this basis, the test at paragraph 1 of the Eminence case above has been met; “the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract.”

While it is my view that the complainant did not intend to return to work, I do not accept the respondent’s position that he resigned. It is my view that he was in effect, waiting to be dismissed. In an e mail on February 25th, in reply to HR’s request to provide a medical report to counter the opinion of the company’s doctor, he said,

“From your previous e mails I got convinced that I am already fired.”

There was no basis for this conviction, as HR had been strenuously trying to get the complainant to come back to work. In her e mails from the day that the complainant left work in April 2015, she was consistent in her encouragement to him to engage with her, sort out the dispute with GM and come back to work. Just one example is her mail of February 8th 2016 in which she wrote:

“I understand that it may be difficult for you after such a long time, but I have already reassured you that there is nothing to be apprehensive about and there is no other way around this. You are fit to work and you should resume your duties.

“It’s an exciting time to be back. We have just launched a training programme, hired a Financial Controller and an Office and Marketing Assistant, new people in the warehouse, the company is busy and growing and we are all looking forward to having you back.”

By consistently refusing to engage with his employer and by continuing to send in medical certs, I think that the complainant anticipated that he would eventually be dismissed. In this respect, it is my view that his continuing absence was a tactical measure to end his relationship with his employer, but without taking action himself to bring this about. This may have been the motive, addressed by Lord Justice Etherton at paragraph 3 above, “which may be relevant…if it throws light on the way the alleged repudiatory act would be viewed.” To reach a decision on this matter, I have decided that motive is not relevant, and the critical fact is that the complainant refused to return to work and refused to engage with the respondent to address any issues that were preventing him from doing so. This is the repudiatory act.

Automatic or Elective?

The requirement now is to consider if, as argued by the respondent, this repudiation brought about an “automatic” end to the employment relationship. The alternative is that the respondent “elected” to dismiss the complainant. An analysis of the automatic versus elective theory is well set out in chapter 6 of Desmond Ryan’s “Redmond on Dismissal Law” (Bloomsbury Professional 2017).   Repudiation is generally attributed to an employer rather than an employee, where an employer does something that is so significant, for example, reducing wages without agreement, that the contract could be said to be sundered. However, for the employment relationship to end, the employee has to leave. “There is no question of the repudiatory breach itself automatically terminating the employment relationship.” [6.03]. To have effect, it appears that repudiation requires a response.    

Although most of the case law is concerned with repudiatory acts alleged to have been carried out by the employer, I take comfort from Etherton’s statement in the Eminence case above that “comparison with other cases is of limited value” and I will conclude this matter on its own facts. The facts are, that following an argument with his manager on April 2nd 2015, the complainant walked out and did not return to work, despite the consistent efforts of the respondent to get him back. To compound this, the complainant gave no indication of when he would return, or any conditions that might attach to his return. In response, HR wrote to the complainant on March 16th 2016:

“As you have failed to return, engage with us in relation to your return to work and/or furnish us with a medical certificate contradicting Medmark’s medical report deeming you fit to return to work, it is clear that you have no intention of returning to work and that you have unfortunately repudiated your contract of employment. You are therefore no longer required to furnish us with sick certificates.

“We are very disappointed that you have decided to take this approach to your position, but we wish you all the best in the future.

“Please contact me if you have changed your mind.”

In this way, the employer responded to the repudiatory act of the employee and indicated that she was about to bring the employment to an end. It is my view that, in this correspondence, HR gave the complainant notice that he was about to be dismissed and left the door open for him to take an initiative to prevent his dismissal having effect.

The respondent’s invitation to “contact me if you have changed your mind,” was met with a letter from the complainant’s solicitor on April 5th in which she stated:

“Our client is most disappointed that you have dismissed him in this manner and accordingly, we are preparing our client’s claim for Unfair Dismissal which will be lodged with the Workplace Relations (sic) in the short term.”

Rather than reaching out to the respondent with a view to facilitating a return to work, with this letter, the complainant closed the door on his job.

While the respondent’s letter of March 16th 2016 was somewhat tentative, it was followed up on April 5th with a mail asking him to return all company property in his possession. In response, in what appears like a plea for clarity, on April 15th, the complainant’s solicitor wrote:

“Please confirm by return if you are terminating my client’s employment?”

The respondent replied on the same day:

“We have no intention of dismissing your client but your client did resign. Please let me know if your client is now seeking to withdraw his resignation and to return to work.”

Finally, on April 18th, HR wrote:

“Unfortunately your client did in fact withdraw his services without the necessary justification for so doing and repudiated his contract.   He has resigned regardless of your statements to the contrary after the fact and neither he nor you on his behalf have sought to withdraw such resignation, regardless of being given ample opportunity to do so. I must now ask that your client returns all company property immediately and I will arrange to issue his P45.”

I have considered the employer’s response and I find that the complainant’s dismissal falls under the “elective” rather than the “automatic” heading, as the respondent elected, or decided, to terminate his employment, and communicated this to him in three e mails on March 16th and April 15th and 18th 2016. More appropriate wording in the letter of March 16th would have been along the lines of, “if you do not return to work on such and such a date, you will be dismissed.” In the absence of a positive response, this could have been followed by a letter of dismissal. The respondent’s failure to act in a more direct manner mirrors the complainant’s tactics. In this game of chicken, neither wanted to blink first.

In circumstances where, on more than one occasion, the complainant’s solicitor said that he didn’t resign, it seems absurd for the respondent to argue that “he has resigned regardless of your statements to the contrary.” It is my view the respondent dismissed the complainant and I uphold the complainant’s position in this regard.

Was the Dismissal Unfair?

The question of fairness turns on the cause of dismissal and the procedures used by the employer to reach the decision to dismiss. The cause is clear: the complainant refused to return to work or to engage with his employer to address the issues impeding his return. My role in reaching this decision is to put myself in the shoes of a reasonable employer in the same circumstances. At the end of one year of fruitless efforts to engage with him and, with no prospect of a return in sight, I have to conclude that the respondent’s decision to dismiss the complainant employment was reasonable.

Turning to the process, I have already remarked that the tone of the correspondence that effected the dismissal was tentative, reluctant and, it seems to me, motivated by a desire to avoid taking the initiative to bring this saga to an end.   A reluctant approach to dismissing employees is generally to be commended. In this case, the employee was well-regarded and had been with the respondent for six years, the company was growing and there was a place for him to make a contribution to its future success. At the hearing, it was evident that the respondent wanted the complainant to be part of that future but he was not in the same frame of mind.   When she reached the conclusion that he wasn’t going to come back to work, a more direct approach by HR would have been preferable. As I have already stated, this would have involved a simple statement to the effect that, “if you do not return to work, or, if you do not engage with us to facilitate your return, you will be dismissed.”

Fair procedures require that the employee whose dismissal is in prospect is informed that their employment is at risk. They have the right to respond to the employer’s intention in this regard and the right to a fair and impartial hearing. They also have to right to be represented and, finally, they have the right to appeal against the decision to dismiss. The respondent here argues that the complainant was not dismissed and, on this basis, there was no requirement for concern with procedures.   However, having considered the actions of HR in response to the evasive conduct of the complainant, I have found that a dismissal did in fact take place, and through the haze of obfuscation and denial, I have to conclude that the respondent followed a procedure which, I am satisfied, afforded the complainant his rights to fair procedures.

For the avoidance of doubt, I wish to set out my understanding on this point of fair procedures. By letter of March 16th 2016, the complainant was informed by his employer that she was about to consider his employment at an end. He was asked to notify HR if he had “changed his mind.” In this way, the complainant was given an opportunity to state his case for not coming back to work, or, in the alternative, to come back.   His solicitor’s response, “Our client is most disappointed that you have dismissed him in this manner…” confirmed the complainant’s position that he did not wish to challenge his dismissal and return to work. The complainant was represented by his solicitor at all times. At the hearing, when he was asked for his view about HR’s request to contact her if he had changed his mind, he said that he “left everything” with his solicitor. In her final e mail to the solicitor on April 15th, once again, HR stated, “Please let me know if your client is now seeking to withdraw his resignation and return to work.” It is my view that, in this way, the complainant was afforded an opportunity to appeal against the decision of HR to terminate his employment and to retain his job.

While the process followed by the respondent was less than perfect and straightforward, I believe that HR acted in a reasonable and fair manner with regard to the complainant and left the door open to him to avoid dismissal. Based on all of these facts, it is my view that the complainant was not unfairly dismissed.

As I have decided that the dismissal of the complainant was not unfair, his complaint under the Unfair Dismissals Act fails.

By e mail on December 2nd 2015, HR requested the complainant to attend an appointment on December 14th, with Medmark, the company’s occupational health consultant. The e mail refers to the possibility that the complainant may not be able to attend:

“Please note that should you need to cancel this appointment, you must notify Medmark and (the respondent) with a 48 hours advance notice.”

Shortly after 9.00pm on the evening of December 13th, the complainant sent a mail to HR to say, “I can’t attend the medical assessment in Medmark tomorrow. Could you re-schedule for Wednesday please?”

At 1.15pm on the day of the appointment, the complainant said that he couldn’t go to the appointment because his daughter was sick and he had to mind her. HR responded to the effect that, as he had not given adequate notice, he would be charged for the cancellation fee.

On January 20th, the complainant attended a re-scheduled appointment in Medmark, following which, he sent an e mail to HR asking for his travel expenses to Dublin to be paid. HR responded:

“…the company would normally be happy to pay for reasonable travel expenses upon the furnishing of receipts and/or based rate per kilometre where driving. However, as you still owe the company the sum of €300 for the assessment you failed to attend in December without giving sufficient notice, such expenses when receipts are furnished will be held to discharge part of this debt owed.”

The respondent deducted €300 from the money owed to the complainant when his employment was terminated in April 2016.

The respondent’s case is that there is a provision in the complainant’s contract of employment that provides for the deduction of money owed at the termination of employment:

“On termination of your employment, the Company will be entitled to deduct from your due payments all sums owed by you to the Company or any Group Company and by your execution of this letter agreement (sic) you consent to the deduction of such sums.”

While I accept that, when he was notified of the appointment on December 2nd, the complainant was informed that he had to give 48 hours’ notice of a cancellation. However, he was not informed that, if he did not attend, he would have to pay a cancellation fee of €300.

Following his e mail on the evening of December 13th, HR replied at 9.44am the next day telling him, “If you do not attend today’s appointment, you will be required to pay the company the cancellation fee that Medmark will charge.” There is no mention of the amount of the cancellation fee.

Unless the amount of the cancellation fee is clearly communicated to an employee at the time of the setting up of the appointment, and, unless they agree to pay for the cancellation, all the costs associated with this professional service should be taken up by the employer.

I have decided that this complaint under the Payment of Wages Act 1991 is well-founded and the deduction of €300 from the complainant’s termination pay was an illegal deduction. The respondent is to repay €300 to the complainant.

The complainant claims that when was dismissed on April 11th 2016, he did not receive his entitlement to statutory or contractual notice. As an employee with more than five years and less than 10 years’ service, under the Minimum Notice Act, he would have been entitled to four weeks’ notice. Section 14 of the complainant’s contract of employment provides that, at the termination of his employment, he is entitled to “at least one month’s notice.”

The respondent’s case is, that in the event of a finding that the complainant was dismissed, he is entitled to notice only in circumstances where, in accordance with the second schedule to the Minimum Notice and Terms of Employment Act, he “is ready and willing to do work of a reasonable nature...” As the complainant was submitting medical certificates, the respondent argues that he is was not “ready and willing” to work as the Act requires and he is therefore not entitled to pay in lieu of notice.

It is the complainant’s case that he was unable to return to work due to illness. On this basis, at the time of his dismissal, he was not able to work his notice, and therefore, he is not entitled to pay in lieu of notice.

As the complainant was unable to work his notice, I have decided that his complaint under the Minimum Notice and Terms of Employment Act fails.

In his complaint form, under the heading of “Industrial Relations Issues,” the complainant stated:

“I was bullied and harassed in my employment culminating in me being abused and threatened by a Director of the company who was also my manager on the 2nd April 2015. I had to leave work due to stress and anxiety. My employer failed to carry out an independent investigation or review into my grievance causing additional stress and anxiety. An application is being lodged with the Injuries Board arising therefrom.”

At the commencement of this hearing, Ms O’Connell, for the respondent, argued that this complaint is out of time because on October 7th 2015, the complainant was notified of the outcome of his grievance concerning “intimidation and humiliation,” as expressed in his e mail of April 2nd 2015. The complaint under the Industrial Relations Act was submitted, along with the other complaints addressed in this decision, on October 10th 2016.

Having considered the aspects of this complaint and the actions of the complainant which resulted in his dismissal in April 2016, I am not satisfied that he had any serious intention of processing a complaint under the Industrial Relations Act. It was open to the complainant to appeal against the outcome of the report into the investigation of his grievance, but he did not do so, claiming that the manager selected to hear the appeal was not independent. If he was strongly of that view, in October 2015, or shortly afterwards, he could have referred the matter to the WRC and with the assistance of a mediator, he could have resolved his grievance; however, I regretfully conclude that this was never his objective.

I make no recommendation in respect of this dispute.

Repudiation of contract by the employee