Complainant

Respondent

Anonymised Parties

A general operative

A plant hire 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-00018457-001

11/04/2018

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

CA-00018457-002

11/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00018457-003

11/04/2018

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

CA-00018457-004

11/04/2018

The respondent is a plant hire company and on March 8th 2015, the complainant commenced employment as a general operative, driving a dumper. His complaint is that his employment was terminated on November 3rd 2017 and that he was dismissed unfairly. Alternatively, he claims that he was made redundant. He did not receive notice of the termination of his employment or pay in lieu of notice. He also claims that, while he was employed by the respondent, he did not receive a statement setting out the terms and conditions of his employment.  

On May 4th 2018, the respondent received correspondence from the WRC notifying him that his former employee submitted a number of complaints for adjudication.   On May 31st, he sent a statement by e mail. The following is the full text of that statement:

“With reference to your recent correspondence dated 4th May, it is with surprise I find this letter of complaint by (name of complainant), as approximately 6 months ago (name of complainant) left his job with me of his own free will. I will endeavour to explain the circumstances as follows:

“In October 2017 (name of complainant) was working in Ship Street in Dublin as a general operative. On 09/10/17 he walked out and went home, telling a fellow worker that there was family issues at home. He did not contact me at this stage and when I eventually was able to get in contact with (name of complainant), he said to me that ‘he was not going back to that job as he was not happy there’. I then offered him work at my base until I could place him elsewhere, which he accepted. He worked there until Friday 03/11/17 when he said he had enough of the tasks he was doing and was finished. I tried to persuade him to stay as I was working on getting some new work, but he refused.

“I gave (name of complainant) his P45 as he requested on Friday the 03/11/17. Towards the end of the next week 09/11/17 the work I was looking for came through, I then contacted (name of complainant) to tell him such and he could return to work, he asked me to leave it with him for the weekend to consider his options. On Monday I received a text from (name of complainant) to say he was looking for his social security and then looking for a new job. Please see photo of the text attached and beneath email below.

“(Name of complainant) was a good worker for me and I was surprised when he left like that, with no notice and I am even more surprised for him to claim I dismissed him, as this was not the case at all.

“Please do not hesitate to contact me if you need any further information.”

In response to his e mail on July 26th explaining that he got the date for the hearing mixed up, I asked him to respond to the complainant’s complaint that he did not receive a written statement of his contract of employment.     On July 31st, he sent a copy of a signed contract which he said was given to the complainant on May 16th 2017. On August 8th, a copy of the respondent’s e mail with the complainant’s contract of employment was sent to the complainant’s solicitor for his comments.

October 9th is referred to above by the respondent as a day when the complainant “walked out and went home.” In his evidence at the hearing, the complainant said that on October 9th and 10th, his girlfriend was sick and he had to go home to mind their children. On October 11th, he couldn’t come to work as he had to drive his eldest daughter to the airport. He said that he attempted to phone his supervisor, but he couldn’t get through to him, and he sent a text message to the respondent himself, explaining why he wasn’t at work.

On Thursday, October 12th, he went to work at the respondent’s site at Naul, County Dublin, but he was told by a foreman for a sub-contractor that he wasn’t needed.   The following Tuesday, October 17th, he received a text message from the respondent to ask him to report for work the following day at a site in Blanchardstown, where the respondent had a contract to drill test holes on a construction site. The complainant worked on this site from October 18th until the 26th, when it emerged that the respondent did not have a permit to carry out the work. On the evening of October 26th, the complainant was asked to report for work at the home of the respondent, which he did on the 27th.   He did general maintenance and gardening for about a week. The complainant said that on November 2nd, the respondent said that he had no work coming up and that he would be let go. The complainant said that he asked about a redundancy payment, and the respondent said that redundancy money would not be paid. The complainant finished up the following day, Friday, November 3rd. That Sunday, he arranged to meet the respondent in a grocery store in Balbriggan, and he received his P45.

Despite the termination of his employment on Friday November 3rd, the following week, the complainant returned to work for three days “for cash” at the home of the respondent. On Friday, November 10th, he said that the respondent referred to other work coming up which would last for three of four months and he asked him to stay on, but he declined this offer as in his view, he had already been dismissed. A text message from the complainant was produced in evidence in which he replied to a telephone call from the respondent as follows:

“Sorry I’m not going back to work sort my social and then going for another job.”

On his behalf, Mr McCormack said that he was correct to refuse the offer of further work, as he had been dismissed on Friday, November 3rd, and given his P45.

Other than the respondent’s written statement, I must rely on the evidence of the complainant to consider if he was dismissed. It seems to me that, by presenting him with a P45 on Sunday, November 5th, the respondent intended to terminate his employment. The situation is made unclear however, when the respondent asked the complainant to come back to work on his house the following week. He then asked him to remain at work on a new contract.

At the hearing, the complainant was not able to provide any context to the discussion that took place between him and the respondent at the end of October and the first week of November. It seems to me that that the respondent may not have had enough work to keep the complainant fully occupied, otherwise he would not have asked him to work in his garden. On November 2nd, it seems that he concluded that he wouldn’t have work in the immediate future and he told him he would have to let him go, although he didn’t make him redundant. The situation changed the following week, and the respondent offered the complainant work for a further period of three to four months.

In circumstances where the respondent offered to maintain the complainant in employment, it is my view that he was not dismissed. It is clear to me that the dismissal of November 2nd was rescinded the following week, when the complainant was offered ongoing work although, for his own reasons, he declined the offer. As the complainant refused the offer of ongoing employment, I have reached the conclusion that he was not dismissed.

I have decided that the complainant was not dismissed, this complaint under the Unfair Dismissals Acts is not upheld.

The complainant said that, while he worked for the respondent, he did not receive a statement setting out the terms and conditions of his employment. He did not say if he ever requested such a statement or that his employer refused to give him a statement.

On July 31st, the respondent sent a copy of a statement of terms and conditions of employment which he said he gave to the complainant and which he said the complainant signed on May 16th 2017. A copy was sent to the complainant’s solicitor on August 8th 2018.

Based on the copy of the document sent to the WRC on July 31st, I have to conclude that the complainant received a written statement of his terms and conditions of employment.

I have decided that this complaint under the Terms of Employment (Information) Act 1994 is not upheld.

For the complainant, Mr McCormack argued that, as an alternative to an unfair dismissal, the complainant was made redundant. His position is that, if I find that he was made redundant, then he is entitled to a redundancy payment.

In his written statement, the respondent said:

“I gave (name of complainant) his p45 as he requested on Friday the 03/11/17. Towards the end of the next week 09/11/17 the work I was looking for came through, I then contacted (name of complainant) to tell him such and he could return to work, he asked me to leave it with him for the weekend to consider his options. On Monday I received a text from (name of complainant) to say he was looking for his social security and then looking for a new job.”

The Relevant Law

Section 6(2) of the Redundancy Payments Act 1967 provides that an employee’s job is redundant when,

“(a)…his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.”

Findings

It is evident that, at the end of October 2017, the respondent had no work for the complainant and, rather than let him go, he asked him to carry out maintenance work at his home. For the employer, there was no gain in this arrangement, apart from having a tidy garden, as he had to pay the complainant his normal week’s pay. It is my view, that, in asking him to carry out work at his house, the respondent was “buying time” while he waited for another contract to come on stream. I find that this action on the part of the employer demonstrates that he did not intend to make the complainant redundant. The complainant said that he asked the respondent for a redundancy payment, and it was clear from his employer’s response that no such payment would be forthcoming. Having considered the evidence available to me, I find that the respondent did not intend to make the complainant redundant. This is further demonstrated by the fact that, the week after he gave him his P45, he asked him to come back to do more work at his house.

The complainant was given a P45 on Sunday, November 5th, but it is not apparent which of the two men initiated this ending of the employment relationship. From the text message sent by the complainant, he wanted to “sort his social” and look for another job. On Friday, November 10th 2017, the termination of his employment was rescinded. When he rejected the offer of ongoing employment, it is my view that the complainant left his job of his own accord. His termination does not fall into any of the categories set out at section 6(2) of the Redundancy Payments Act, and, as he was not made redundant, he was not entitled to a redundancy payment.

As I have decided that the complainant’s job was not redundant, his claim for a redundancy payment is not upheld.

The complainant said that he received just one day’s notice of the termination of his employment, and that, in accordance with the Minimum Notice Act, he was entitled to two weeks’ notice.

The respondent did not attend the hearing.

Based on my investigations under the Unfair Dismissals Acts and the Redundancy Payments Act, I have concluded that the complainant was not dismissed and that he was not made redundant. As I have decided that the complainant left his job of his own accord, he is not entitled to notice or pay in lieu of notice.

As I have decided that the complainant was not dismissed by the respondent, I also decide that his complaint under the Minimum Notice Act is not upheld.