ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00011074
Parties:
| Complainant | Respondent |
Anonymised Parties | A Welder | A Welding firm |
Representatives | McMahon & Company Solicitors | David McGrath, BL, instructed by Murphy's Solicitors |
Complaints:
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-00014774-001 | 04/10/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00014774-003 | 04/10/2017 |
Date of Adjudication Hearing: 07/02/2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 4th October 2017, the complainant referred complaints pursuant to the Unfair Dismissals Act and the Minimum Notice & Terms of Information Act. The complaints were scheduled for adjudication on the 7th February 2018. These complaints were heard with a complaint made pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations and subject to a report in ADJ 11077.
The complainant attended the adjudication with his father. He was represented by McMahon & Co Solicitors. David McGrath, BL, instructed by Murphy’s Solicitors, represented the respondent. Three witnesses attended for the respondent, referred to in this report as the company directors and the colleague.
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant worked for the respondent from the 11th January 2016 to a disputed date in April 2017. He was paid €960 per fortnight. He asserts that he was dismissed on the 9th April 2017 and not paid statutory notice; the respondent disputes the claims. |
Summary of Respondent’s Case:
The respondent submitted that the complainant’s employment came to an end on the 30th April 2017. It deemed the complainant to have resigned. It commented that the respondent had taken separate proceedings against its landlord, who is the complainant’s father. It submits that the voicemail of the 9th April 2017 was made at a time when the company director changed his medication. Following this, the respondent paid the outstanding monies due to the complainant and wished to speak with him regarding his return to work. The complainant, however, did not engage. The respondent submits that the complainant’s father, its landlord, restricted access to the business premises between the 12th and 17th April, leading to the respondent’s lock-out of the 18th April 2017.
The respondent submitted that overall, the complainant’s work was satisfactory, although there were occasions when he did not engage with colleagues or the company director. There were issues with the complainant’s punctuality and attendance. The Colleague gave evidence that the complainant refused to follow his instructions when the Colleague was put in charge of the workplace.
The respondent submits that the complainant was expected to return to work on the 11th April 2017 (as his wages were paid) and that he was deemed to have resigned following his non-attendance. The respondent submitted that the complainant was deemed to have resigned on the 30th April 2017. It outlined that it had to move to other premises. The respondent submitted that the grounds for the dismissal was the complainant’s refusal to engage with the respondent. He refused to answer phone calls or meet the respondent. It submitted that the only response available to the respondent was to dismiss the complainant. It further submitted that the letter of the 16th April 2017 gave the complainant one week’s notice.
The respondent submitted that the decision to dismiss the complainant fell within the reasonable band of responses. It outlined that there was no dispute about the phone call of the 9th April 2017. It said that the intent of the voice message was to dismiss the complainant, but the respondent subsequently accepted that this was an over-reaction. The complainant was offered his job back. There was, however, no engagement from the complainant after that.
The company director gave evidence that he left the voice message of the 9th April 2017 because of a message sent by the complainant to the second company director, his wife. The complainant had said that he did not want the respondent to contact him again. The company director was reacting to the message as the complainant was asked whether he was going back to work. The respondent received a message at 11.30pm at night and he reacted to the attitude displayed in the message. The company director said that it was wrong for him to react and he referred to a medical issue. He also texted the complainant’s father to say that his son would no longer worked for the respondent. The following day he met with the complainant’s father in a coffee shop. He said that the complainant was still employed by the respondent and suggested that the complainant attend so he could apologise to him.
After this conversation, the respondent paid the complainant his outstanding wages on the 10th April 2017. The complainant’s father then said that he did not want employees of the respondent on site and the company director had to work on his own. He was restricted access in and out of the unit as the gates were being locked and he had to phone the complainant’s father. The complainant did not come down to see him as he had asked for on the 11th April. His wife and the complainant then exchanged emails. The company director said that he observed the complainant in the yard between the 11th and 18th April, but he never engaged with him. The company director thought the complainant was working on other cars.
The company director said that he was then working on his own and it became impossible for him to trade. They had to find somewhere else. At this time, his wife was contacting the complainant regarding his wages and coming back to work. On the 18th April 2017, his wife went to clean the unit out and to return two vehicles to customers. The main gates were locked and the complainant passed his wife but never tried to speak with her. Later, the complainant was with his father and they never engaged in conversation. They then received his email. They called the Gardaí and removed everything from the workshop. There was no more correspondence with the complainant until they received the WRC complaint in October 2017. The company director outlined that on the 21st April, they gave the complainant the option to come back and gave him a period of grace until the 30th April. His refusal to come back was deemed a self-dismissal.
The second company director said that she sent the correspondence of the 16th April 2017 by email and by registered post. It was returned as not collected. She was locked in for about 90 minutes to two hours. She called the Gardaí to open the gates.
In respect of the Minimum Notice complaint, the respondent submitted that the letter of the 16th April 2017 was a notice of termination of employment and the employment ended on the 30th April 2017.
In relation to the dismissal, the respondent outlined that the complainant sought redress for an unfair dismissal but the respondent had sought to withdraw the notice. The complainant’s job was still available. The meeting in a coffee shop was important as it was immediately clear that the complainant could return to work. The company director tried to phone the complainant on a several occasions and then followed up by letter. It submitted that it was significant that he did not then say, “great I have my job”. The reason for the dismissal was the conduct of the employee after the 9th April 2017 and the voicemail was not effective in terminating the employment. |
Summary of the Complainant’s Case:
The complainant outlined that he worked for the company director in his capacity as a sole trader. He never received a contract of employment or notice of the incorporation. He outlines that he worked without issue for the respondent. He took annual leave for one week, commencing on the 27th March 2017 and was asked to take a second week of annual leave due to cash flow issues. He later received a voicemail from the company director, stating that he was “no longer welcome in that unit as an employee of [the respondent].” He submits that this voicemail amounted to his dismissal. He outlines that his dismissal was procedurally and substantively unfair. Following the events of the 9th April, there were emails regarding his status and monies owed.
After the 9th April 2017, the complainant sought his wages and did not authorise his father regarding the conversation in the coffee shop. The next contact was the email of the 10th April regarding paying his wages. The first mention of “second thoughts” regarding the dismissal was the email attaching the letter of the 16th April. It does not refer to the voice message. The complainant replied on the 18th April to say that he has already been dismissed. There was no further attempt to withdraw the dismissal. There was no response to the substance of the complainant’s reply where he says that he has been dismissed. It was procedurally unfair and there were no warnings, no contract and no pay slips. He claimed statutory notice.
In evidence, the complainant said that it was not true that he was a source of tension. There was tension when the Colleague and his son started working for the respondent. The company director told the complainant that he was going to sack the Colleague. Leading up to the dismissal, the complainant asked the second company director to stop texting him and asked for the company director to call him. He had worked for the company director and wanted to speak with him. On the Sunday night he received two or three missed calls, but heard nothing after that. He only received emails after that. His father had not wanted to get involved. The company director’s unit was at the end of the industrial estate and he had walked by the complainant, and not the other way around. The complainant outlined that the respondent’s letter of the 16th April ignored that he had been dismissed on the 9th April. He sent a further email on the 18th April.
The complainant denied that anybody had been locked in. He might have come down to speak with his father but he was not there for the incident. The complainant thought the respondent was already looking to move units in April 2017. The company director had suggested he take holidays and it was not a surprise that they moved. The respondent had been planning this all along. The complainant described that there were a series of units in the yard and they operate as different businesses. There were light industrial units, including those relating to cars.
The complainant said that after his dismissal, he sought other welding jobs but most required a welding certification. The company director had promised to pay for his welding certification. The complainant was offered contract work starting in July.
The complainant’s father outlined that he received two text messages from the company director. One stated that the complainant was no longer an employee and that he wanted assurance that the complainant would not be allowed into the unit. The complainant’s father’s reply stated that the respondent would be excluded from the yard. The complainant’s father said that the company director had sacked the complainant and it was not necessary to call everyone’s reputation into question. They had previously had a close relationship, where his daughter and wife had looked after their children.
In closing submissions, the complainant outlined that the company director had discussed sacking the Colleague and his son and was advised that he should not sack by text message. The complainant did not agree that the other company director was intimidated or imprisoned. They could have walked up to the house and they were not locked in. The complainant submitted that his dismissal took place on the 9th April 2017. The company director did not mention the voice message in further emails and there was no offer to withdraw the notice. The complainant submitted documentation relating to finding alternative employment, including commencing contract work in July 2017 and seeks redress for lost pay. |
Findings and Conclusions:
CA-00014774-001 This complaint is made pursuant to the Unfair Dismissals Act. There was a great deal of conflict about the events of the surrounding the ending of the complainant’s employment with the company, some of which will be ventilated in a different forum. There was conflict whether the complainant was dismissed or had he self-dismissed or effectively resigned. There was conflict over the date of any dismissal.
The definition of ‘dismissal’ set out in the Unfair Dismissals Act states, at subsection (a), “(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.”
In respect of what is a resignation, the Labour Court in Millett v Shinkwin [2004] E.L.R. 319 held: “A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation. Where adequate notice is given, the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract.
There is, however, a significant body of authority for the proposition that there are exceptions to this general rule and that there are occasions in which an apparently unconditional and unambiguous resignation may be vitiated by the circumstances in which it is proffered.”
In respect of self-dismissal, I note that Frances Meenan SC states at 20.68 of “Employment law”, 2014, “It should be noted that there is no provision for “self-dismissal”. In other words, an employer cannot state to an employee that if that employee does not do something or does not come in to work, it is deemed to be a “self-dismissal”. There is no such thing; either the employer or the employee must actually terminate the contract of employment.”
Having considered the evidence, I am satisfied that the date of dismissal was the 9th April 2017. It is clear that by leaving the voice message, the respondent intended to dismiss the complainant. While I note the coffee shop meeting and the letter of the 16th April 2017, the focus of the contact between the parties was about paying wages owed and not about the ongoing employment relationship. I note that the complainant replies to the letter of the 16th April 2017 to say that he has already been dismissed. It is significant that there is no follow-up from the respondent regarding his resumed employment.
It follows that the dismissal was procedurally and substantively unfair and the claim of unfair dismissal is well founded. In assessing redress that is just and equitable, I note the complainant’s efforts to find alternative employment and his obtaining contract work 11 or so weeks after the dismissal. I note the fraught interactions involving the parties and their family members regarding access to the site. Taking these factors together, I order redress of €3,000.
CA-00014774-002 This complaint is made pursuant to the Minimum Notice & Terms of Employment Act. I have found that the complainant’s employment ended on the 9th April 2017. He did not receive statutory notice. His employment commenced in early 2016, so he is entitled to one week’s notice, i.e. €480. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
CA-00014774-001 For the reasons set out above, I find that the complaint made pursuant to the Unfair Dismissals Act is well founded and the respondent shall pay to the complainant redress of €3,000.
CA-00014774-002 I find that the complaint made pursuant to the Minimum Notice & Terms of Employment Act is well founded and the respondent shall pay to the complainant redress of €480. |
Dated: 17th October 2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Unfair Dismissals Act Date of dismissal No “self-dismissal” Notice pay |