Complainant

Respondent

Anonymised Parties

A Roofer

A Roofing 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-00025130-001

20/01/2019

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

CA-00025130-002

20/01/2019

The complainant began work with the respondent on May 10th 2017. The employment terminated around the end of December 2018 and dismissal is disputed.

The complainant made a number of attempts to contact the respondent regarding the availability of work. He sent texts on numerous occasions to find out if work was available.

He got no reply. He denied that he got any phone calls or messages from the respondent.

He requested his P45 for the purposes of an application to the Department of Social Protection (DoSP) which had sought it as confirmation that he was not working.

He received a text message form the respondent asking him to report for work and he asked for payment for the period since December 22nd for the difference between his actual and the SEO rate of pay.

He says he was not placed on lay off.

In December 2018 the complainant repeatedly told the respondent that he intended to leave the company.

He attended the Christmas party on December 21st and was given a bonus payment.

The company was closed until January 7th and did not re-open on January 3rd as claimed by the complainant.

That time of the year is generally quiet, and that particular January was especially so.

The respondent was not in a position to specify the hours which would be available to the complainant and, according to his contract, it is provided there that they ‘may fluctuate depending on the availability of work’.

That was the position, in that there was uncertainty about the work being available.

On January 7th he requested by text message that his P45 be supplied to him, although this was subsequently deleted. One of the respondent managers attempted to make contact with him by telephone on a number of occasions but could get no reply.

On January 21st he was offered work by text, but he said he was not well enough to avail of it. The respondent made it clear to him that he had not been dismissed.

The complainant gave evidence of efforts to contact the respondent by text on January 6th, 7th, 8th, 9th 10th 13th 14th 15th, 16th and 17th asking whether he would be working the following day. The text was identical; ‘Am i [sic] working tomorrow or not’.

The respondent stated that it was trying to make contact with him by phone in line with its normal practice between January 7th and 20th but the complainant denied that he got any of these phone calls.

An onus falls on an employer in a situation like this to ensure that the employment contract does not simply wither away. There is a need for absolute clarity about whether and when work will eventually materialise and the employee’s precise status in the interim. This is not something that can be left to chance.

If a person is to be placed on temporary lay off then correct procedures for doing so should be followed.

However, there were inconsistencies and credibility issues in both parties’ stories.

The respondent placed emphasis on the complainant allegedly having said that he intended to leave. Is it saying by implication that it thought that he had and again what actions did it take to clarify his status?

The complainant, on the other hand, made application to the DoSP on January 7th the same day the company resumed its, (or some of its) operations after the Christmas break. It is not clear what led him to believe that the respondent resumed operations on January 3rd but even if it had (and I accept that it had not) he had not been in contact with the respondent until the 7th and after having made contact with the DoSP.

The text message of January 7th to the respondent read ‘Hi [name] how long will I be sitting at home? And when do I go to work?

But in fact he would not have been due to return to work until that day; his time spent ‘sitting at home’ was part of his pre-arranged break.

The alleged efforts to communicate thereafter do not reflect well on either party. The respondent’s evidence of its efforts to contact him were not convincing and it seems that it may have been acting on the presumption that he had, in fact carried through on his resignation, although this was contradicted by his text messages.

While the situation was beginning to develop some characteristics of a termination as a result of the respondent’s inaction, the complainant referred the matter to the WRC on (Sunday) January 20th, less than two weeks later.

The offer of employment on January 21st was not a response to this as the complainant could not have received the notification of the complaint at that stage. (The letter from the WRC notifying the respondent of the complaint is dated January 22nd).

It seems more likely that the respondent had realised that he had not resigned or otherwise had reconsidered the position.

In any event the complainant declined that offer of work and gave two reasons for doing so.

The first was that he was sick (he had caught ‘a cold’.)

The second may be more relevant.

He said;

‘before returning to work please clarify whether you are in a position to pay me difference between prescribed by the Government minimum rate for construction industry. Also are you paying me for time I was out without any notice about lay out or cessation of employment.

Making some allowance for the fact that English is not the complainant’s first language, this nonetheless sets out an element of conditionality for his return to work, admittedly some days after the reference to the WRC.

The key question is whether the respondent inaction (apart from the phone calls it claims were made) is sufficient to ground a case for unfair dismissal.

In my view it is a borderline decision. An employer will not be protected on the basis of some vague presumption that a person has resigned because, for example he has said he is thinking of leaving, if this has not been categorically established and in writing.

Similarly, a request from an employee for a P45 must be treated with great caution and may not be evidence of resignation, for example in circumstances where the number of hours have been reduced and a person becomes eligible for payments from the DoSP.

I balance this with the timing of the complainant’s application to the DoSP. He had already applied for benefit before contacting the respondent about the availability of work. It is hard to know what to make of that.

Subsequently the complainant denied asking for the P45 (the respondent insists that the text was sent to them but subsequently deleted) and seems to say, in reference to the January 7th text that he (merely);

‘asked you to clarify your position in respect of my employment. I spent a long time without work, money and possibility to apply social welfare’.

In fact, on January 7th he had been off work for the expected period of the Christmas closure.

It is scarcely credible that the parties could not manage to communicate with each other over the following two weeks.

I do not accept the complainant’s evidence that he was unaware of the respondent’s efforts to contact him. Direct evidence was given to this effect at the hearing and it was credible.

Yet he proceeded to refer the matter to the WRC on January 20th and declined the offer of work on January 21st all of which tends to the conclusion that he was not serious in his intention to return to work.

I find that the complaint just falls on the wrong side of the border referred to and that there is insufficient evidence that his employment was terminated by the respondent. Factors such as a longer period of lay off, (in this case it was short; about two weeks) his own attitude to a return to work (which was anything but convincing), might have swung the balance in his favour.

Finally, the complainant’s response, and reasons for not returning when he was offered work were most damning to his case. They provide the best evidence that he did not wish to continue working with the respondent.

However, the respondent has had a narrow escape; it needs to take greater care and should be more diligent and pro-active in its future management of such situations.

For these reasons the complaint under the Minimum Notice& Terms of Employment Act, 1973 also fails

For the reasons set out above I do not uphold complaints CA-00025130-001 and 002 and they are dismissed.