ADJ-00008782

Complainant

Respondent

Anonymised Parties

A General Operative

An Electronics Wholesaler

Act

Complaint Reference No.

Date of Receipt

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

CA-00011434-001

19/05/2017

The complainant had been employed by a company run by a brother (hereafter Director A) and sister (Director B) and had been in a personal relationship with the sister which had come to an end.

He performed general duties including driving.

His employment terminated on November 21st 2016 and he claims unfair dismissal.

The fact of dismissal is disputed by the respondent.

The complainant said the first he knew of the breakdown in the personal relationship was when his partner handed him contact details for a solicitor.

At a subsequent meeting in a hotel with Director A on November 7th he was told that because of the breakdown in the personal relationship it would be ‘awkward’ for him to continue working in the company.

He says this was put more firmly to him on November 11th at a meeting in his former home, where he was told he would have to leave.

He went on sick leave on that same day.

He denied the claims made by the Office Manager and by Director A about the sequence of events regarding the payment, or that he ever requested to be made redundant.

The respondent says that the employment relationship terminated by mutual agreement in November 2016.

The personal relationship between the complainant and the Director ended on November 4th. Some days later, on November 7th the other Director, her brother, (hereafter Director A) met the complainant in a hotel and a discussion took place about his leaving the company, which included him vacating the home he shared with his former partner.

He denies that he told the complainant that it would be ‘awkward’ to continue working in the company. (In the course of an earlier break up in the personal relationship with Director B he continued to work in the company.)

In general, this was agreed and some days after that, on November 11th, Director A says (and relies on a note of the meeting) that the complainant asked that he be given redundancy as he no longer wished to work for the company, and as the account on which he was working no longer required a staff member to service it as it was being automated.

The terms of a redundancy payment were put to the complainant. The terms were generous in that they discounted a period of absence by the complainant, and a break in the complainant’s service following which he had been re-engaged.

He was advised that he would have to sign a waiver form that the payment was in full and final settlement of all claims against the company, and he agreed that he would, once payment had been received.

The respondent says that it was the complainant who asked to be made redundant, and the respondent agreed to this as it was tax efficient for the complainant.

Director A, who had undertaken the discussions with the complainant gave direct evidence to the hearing.

He stated that the complainant had raised the possibility of redundancy as a quid pro quo for vacating the home he had shared with the other Director. (There were various other aspects to that agreement, not relevant to the ending of the employment relationship).

He also stated that the complainant rang the company some days after the agreement was made seeking payment.

Evidence was also given by the respondent Office Manager that she had been asked to calculate the redundancy entitlement (and to ignore the period of the complainant’s absence) and she did so.

She also said she had a conversation with the complainant when he called into the company office on November 18th about how the payment would be made and the arrangements for transferring it into his bank. She recalls checking this with Director A, who confirmed his agreement to the arrangement. She was certain that the complainant was satisfied with the arrangement.

She heard him ring Director A on November 21st to check that his payment would be made that day, which it was.

On November 24th, the complainant called her to request his P60 and recent wages slips.

Director A stated that when he contacted the complainant on November 21st to ask him to sign off on the waiver agreement he refused to do so.

Nonetheless, he accepted the payments and gave no indication of dissatisfaction with the arrangement at the time.

There was a stark conflict in the evidence before the hearing.

The respondent denies that any dismissal under the Act took place and that the employment relationship ended by mutual agreement.

The situation was somewhat clouded by reference to a redundancy, and in particular whether there had been a selection process etc. The complainant’s representative had raised in earlier correspondence and at the hearing how the process conformed to the requirements of redundancy procedure.

However, as it turns out that is not a critical point. The severance agreement was considerably in excess of any statutory entitlement under the Redundancy Payments Acts, and the question in this complaint turns initially on whether the termination was by mutual agreement, or whether the dismissal was unfair.

Put another way the primary issue is whether the respondent terminated the employment in breach of the Unfair Dismissal Act, 1977.

The evidence of the respondent was persuasive on this point.

The narrative provided by both Director A and supported, and in part corroborated by the Office Manager, as well as the sequence of events including the acceptance of the payment go to support the credibility of the respondent‘s version of events.

The complainant was reduced to simply, and rather weakly denying almost all the respondent’s narrative; the assertion that it was he who sought the redundancy, the conversation with the Office Manager which he denied took place at all.

In particular, the evidence that he telephoned the respondent on November 21st requesting confirmation of the payment is critical. Both Director A (who took the call) and the Office Manager say that the former asked the latter to confirm that the payment had been made. She did.

There was no convincing refutation by the complainant that this conversation did not take place, or for example, that he made it clear that he did not wish the payment to proceed. And bear in mind that the respondent‘s evidence was that the complainant had been told when the matter was first discussed on November 11th that a signed waiver would be required.

Yet, he could offer no evidence at all that he was a reluctant participant in the proceedings and all of the evidence points to the fact that he was not. In the intervening ten days or so the complainant gave no indication of his dissatisfaction with how things were progressing.

The complainant denies that he sought redundancy, denies that he had the conversation with the Office Manager on November 18th or that he sought to arrange the payment by direct transfer to his bank, (although this was what was done) or that he made a telephone call on November 21st to clarify that the payment had been made, and he made no attempt to question the payment afterwards.

All in all, it is a most unconvincing response and I do not accept it.

I find that the complainant did leave the employment by mutual agreement and was not dismissed.

For the reasons set out above I do not uphold complaint CA-00011434-001 and it is dismissed.

Unfair dismissal, termination by mutual agreement.