Complainant

Respondent

Anonymised Parties

A Fencing Operative

A Fencing Company

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-00019751-001

13/06/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00019751-002

13/06/2018

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

CA-00019751-003

13/06/2018

The Complainant was employed by the Respondent as a Fencing Operative from 13 June, 2016 until 14 December, 2017 when his employment was terminated. The Complainant claims that he was unfairly dismissed from his employment after he sustained a workplace injury. The Respondent disputes the claim of unfair dismissal and contends that the Complainant resigned from his employment of his own volition on 14 December, 2017.

The Complainant claims that he was summarily dismissed from his employment on 14 December, 2017 and did not receive his statutory notice entitlement contrary to Section 4 of the Minimum Notice and Terms of Employment Act 1973. The Respondent disputes the claim and contends that the Complainant resigned his employment of his own volition, and therefore, was not entitled to statutory notice.

CA-00019751-001 – Complaint under the Unfair Dismissals Acts, 1977 – 2015

The Complainant commenced employment with the Respondent as a Fencing Operative on 13 June, 2016. He was also previously employed by the Respondent for a period of 6/7 months in 2003/04. The Complainant’s main duties involved the erection of fencing at various sites where work was being undertaken by the Respondent.

The Complainant claims that he sustained an injury to his back at work on 23 February, 2017 while lifting an overweight concrete post with a co-worker and was unable to continue working for the rest of the day. The Complainant stated that he reported this workplace injury to his supervisor and was certified unfit for work by his General Practitioner as a result of the injury. The Complainant attended a meeting with Mr. D, Company Director, on 2 March, 2017 to discuss this matter and explained how the injury had occurred and provided an update in relation to his injury. The Complainant stated that he wasn’t satisfied with the tone of this meeting and the nature of the questioning put to him by Mr. D in relation to the matter. The Complainant stated that he had subsequent contact with the Respondent to inquire if the company would cover the cost of an MRI scan on his back but was informed that he wasn’t entitled to anything.

The Complainant subsequently engaged a solicitor to deal with this matter on his behalf. The Complainant’s solicitor wrote to the Respondent on 30 March, 2017 seeking compensation for his personal injuries, loss and damage and indicated that the Complainant intended to proceed with an application to the Personal Injuries Board if the matter was not resolved. There was further correspondence between the Complainant’s solicitor and the Respondent in relation to the matter over the following months.

The Complainant remained absent from work on certified sick leave in the months following his workplace injury. The Complainant contends that without warning or notice he received his P45 and cheque for holiday pay from the Respondent by letter dated 14 December, 2017 which letter was delivered by hand to his residence (there was no post mark on the letter). The Complainant states that as far as he was aware he was still an employee of the company and it came as a complete shock when issued with his P45. The Complainant states that he was not asked by the Respondent when he would be fit to resume work or requested to attend the company doctor to assess his medical condition prior to his dismissal.

On cross examination, the Complainant denied that he had telephoned the company on 14 December, 2017 and requested his holiday pay and P45 from the Respondent’s Accounts Manager. The Complainant also denied that he resigned from his employment on this date of his own volition.

Counsel for the Complainant submitted that his client was unfairly dismissed on 14 December, 2017 and that a genuine redundancy situation did not exist at the material time of his dismissal. It was further submitted that the Respondent failed to consult with the Complainant or apply fair procedures in relation to his selection for redundancy. Counsel submitted that the Complainant’s dismissal was attributable to the fact that he had initiated a claim for Personal Injuries in relation to the injuries sustained in the workplace.

CA-00019751-003 – Complaint under the Minimum Notice and Terms of Employment Act 1973

The Complainant claims that he was summarily dismissed from his employment on 14 December, 2017 and did not receive his statutory notice entitlement contrary to Section 4 of the Minimum Notice and Terms of Employment Act 1973.

CA-00019751-001 – Complaint under the Unfair Dismissals Acts, 1977 – 2015

The Complainant was employed by the Respondent as a Fencing Operative in June, 2016 having also been previously employed for a period of time a number of years earlier.

The Complainant was a good worker and the Respondent did not have any difficulties with him until he went absent from work on 23 February, 2017. The Respondent strongly disputes the Complainant’s contention that he sustained an injury to his back in the workplace on this date. The Respondent stated that all of its employees are required to complete induction training on every site where they work which involves training on health and safety procedures including the mandatory reporting of accidents/injuries in the workplace. The Respondent stated that the Complainant attended for work on this date but did not report any injury having occurred to his supervisor, his on-site work colleagues or the site safety manager.

The Respondent stated that rumours were circulating among staff during the following days that the Complainant was alleging that he had sustained an injury at work and was going to make a claim against the company. The Respondent requested the Complainant to attend a meeting at its offices on 2 March, 2017 to discuss this matter. Prior to this meeting the Respondent made enquiries with the Complainant’s supervisor, on-site work colleagues and site management where he was working on 23 February, 2017 and was satisfied that the Complainant has not sustained or reported any injury on that date. The Respondent contends that the Complainant indicated at this meeting that there had been “crossed-wires” in relation to his back injury and admitted that he had hurt his back while “tricking” at home with his son. The Respondent stated that the Complainant requested a few days off work and indicated that he would be fit to return to work the following Monday, 6 March, 2017.

The Complainant subsequently failed to return to work on 6 March, 2017 and the Respondent made a number of attempts to contact him in the following weeks to ascertain when he would return to work but to no avail. The Respondent received a letter from the Complainant’s solicitor on 30 March, 2017 claiming that he had sustained a workplace injury and indicating that he intended to proceed with a claim for Personal Injuries if the matter was not resolved.

The Respondent and the Complainant’s solicitor exchanged correspondence on a number of occasions over the following months in relation to the matter. However, the Respondent did not have any direct contact with the Complainant during this period and he failed to submit any medical certificates to confirm that he was unfit for work or when he would be fit to resume employment. The Respondent indicated to the Complainant’s solicitor in correspondence on several occasions during this period that his position was still available and also offered him a modified role if this was necessary to accommodate any difficulties that he was having with his back.

The Respondent’s Accounts Manager received a telephone call from the Complainant on 14 December, 2017 during which he sought payment of any outstanding holiday pay that was owing to him. The Complainant also requested his P45 during this telephone conversation with the Accounts Manager. The Respondent stated that the Complainant was forwarded his P45 and a cheque for his outstanding holiday entitlements, as requested, by letter dated 14 December, 2017. The Respondent stated that it was clearly indicated in this letter that the Complainant’s job was still available should he wish to return to work.

The Respondent did not have any further contact from the Complainant until it received a further letter from his solicitor on 5 May, 2018 claiming that he had been summarily and unfairly dismissed from his employment on 14 December, 2017. The Respondent strongly refutes the contention that the Complainant was dismissed and contends that he left his employment of his own volition.

CA-00019751-003 – Complaint under the Minimum Notice and Terms of Employment Act 1973

The Respondent disputes the claim under the Minimum Notice and Terms of Employment Act 1973 and contends that the Complainant resigned his employment of his own volition, and therefore, was not entitled to statutory notice.

CA-00019751-001 – Complaint under the Unfair Dismissals Acts, 1977 – 2015

The Relevant Law

Section 1 of the Unfair Dismissals Act 1997 provides that:

"dismissal", in relation to an employee, means—

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

The key material facts in this case, including the fact of dismissal, are very much in dispute between the parties. Accordingly, it is a matter for the Complainant to establish that he has been dismissed by the Respondent.

I note that the Complainant has put forward the argument that his dismissal did not arise from a genuine redundancy situation and it was contended that the Respondent failed to demonstrate that it complied with fair and proper procedures in selecting him for redundancy. However, the Respondent’s case is that the Complainant resigned voluntarily of his own volition and it is disputed that a dismissal occurred, either by way of redundancy or otherwise.

Therefore, the first issue which I must consider is whether or not the Complainant was actually dismissed from his employment within the meaning of Section 1 of the Acts or if, as contended by the Respondent, that he left this employment of his own volition after failing to return to work following a sustained period of absence on sick leave.

The first key issue in dispute between the parties relates to the issue of whether or not the Complainant sustained a workplace injury to his back, as alleged, on 23 February, 2017. The Respondent does not dispute that the Complainant may have had an injury to his back at the material time in question. However, the Respondent strongly disputes the Complainant’s contention that this injury was sustained in the workplace. The Respondent adduced evidence from a number of witnesses at the oral hearing to corroborate its contention that the Complainant admitted at a meeting on 2 March, 2017 that he had sustained the injury while playing with his child at home. I have also taken note of the Respondent’s evidence that the Complainant failed to report the alleged occurrence of this workplace accident to management or the site safety manager at the material time, as he would have been required to do under the relevant health and safety procedures. On balance, I have found the Respondent’s evidence on this issue to be more compelling and I find that the Complainant did not sustain the injury to his back arising from a workplace accident on 23 February, 2017.

It was not in dispute that the Complainant went absent from work as a result of an injury to his back following the alleged incident on 23 February, 2017 and did not subsequently return prior to the alleged date of dismissal on 14 December, 2017. The Respondent adduced evidence that the Complainant did not submit any medical certificates during the intervening period to confirm the nature or extent of his alleged back injury. I note that this fact was not disputed by the Complainant and he contends that he submitted medical certificates directly to his local Social Welfare Office during this period to claim the relevant benefits as he was not on speaking terms with the Respondent.

Notwithstanding the foregoing, it is clear that there was communication between the parties during this period by virtue of the ongoing correspondence between the Respondent and the Complainant’s solicitor. I note that the Respondent indicated on a number of occasions in this correspondence that the Complainant’s position was still available and that it was open to him to return to work if he so wished. I am satisfied that the Complainant did not seek to engage with the Respondent, either directly or through his solicitor, during this period in relation to a possible return to work or provide any indication that he intended to return when certified medically fit to do so.

Having regard to the evidence adduced, it is clear that matters came to a head on 14 December, 2017 when the Complainant was issued with his P45. The circumstances surrounding the issuing of the Complainant’s P45 are very much in dispute between the parties and are key to the issue of whether or not any dismissal occurred on this date.

On balance, I have found the Respondent’s evidence regarding the events that transpired in relation to this matter to be more compelling and credible. I accept the Respondent’s evidence that the Complainant’s P45 was issued on his request following a telephone conversation with the Accounts Manager on 14 December, 2017. I note that it is clearly stated in the Respondent’s letter that accompanied the P45 that the company “would like to confirm that your job here will remain open should you wish to return”. I am satisfied that the contents of this letter and the compelling evidence given by the Accounts Manager clearly corroborates the Respondent’s version of events that the Complainant was not dismissed from his employment at that juncture and that his job was still available to him. I am satisfied that the Complainant failed to make any subsequent contact with the Respondent in order to indicate or confirm that he intended to return to work.

Having regard to the foregoing, I find that the Complainant was not dismissed from his employment within the meaning of Section 1 of the Acts and that he left his employment of his own volition. Accordingly, I find that the complaint under the Unfair Dismissals Act, 1977 is not well founded and must fail.

CA-00019751-003 – Complaint under the Minimum Notice and Terms of Employment Act 1973

Having regard to the totality of the evidence adduced, I find that the Complainant resigned from his employment of his own volition and therefore, was not entitled to statutory notice under the Act. Accordingly, I find that the complaint under the Minimum Notice and Terms of Employment Act 1973 is well not founded.

CA-00019751-001 – Complaint under the Unfair Dismissals Acts 1977 - 2015

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I find that the complaint under the Unfair Dismissals Acts, 1977 - 2015 is not well founded and must fail.

CA-00019751-003 – Complaint under the Minimum Notice and Terms of Employment Act 1973

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the complaint under the Minimum Notice and Terms of Employment Act 1973 is well not founded.

Unfair Dismissals Act 1977 – Section 1 – Dismissal - Absence on sick leave - Resignation – Complaint not well founded - Minimum Notice and Terms of Employment Act 1973 – Statutory Notice Entitlements