Complainant

Respondent

Anonymised Parties

An Employee

A Technology Company

Representatives

Keith Walsh Solicitors

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-00026135-001

07/02/2019

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

CA-00026135-002

07/02/2019

The respondent company is a family business. The complainant is the estranged wife of the Managing Director, and the incident giving rise to the alleged termination involved a niece of the MD.

The complainant had been employed with the company since 2009 on a salary of €18,000 and says that her employment was terminated on January 10th 2019.

The complainant brought a matter to the attention of the MD arising from a conversation she had with a co-worker, the MD’s niece. The complainant said that the co-worker had been dismissive of her and did not like her. She asked the MD to deal with her.

The respondent initially suggested (on December 7th 2018) that they should meet to discuss and resolve the matter but this option was rejected by the complainant.

The respondent investigated the complaint and on December 13th spoke to a witness to the event who told him that she had not noticed anything untoward in the exchange abut which the complainant had raised the issue.

On December 30th the complainant and the MD had a discussion about a range of work-related and personal matters, in the course of which she told him of her intention to leave the company. She also expressed a view that the co-worker against whom she had made the complaint should be dismissed. The respondent said he would not do that.

They met again on January 7th and at the commencement of the meeting the complainant told the respondent of her intention to seek work away from the respondent. The respondent said that he would continue to pay the complainant’s salary until she found a new job but asked her not to attend at the office until she did.

In fact, she did attend on a number of occasions, including on to confront the co-worker with whom she had the dispute.

He did not get a chance to talk to the co-worker against whom the complaint had been made until after the Christmas break on January 24th and she expressed surprise that the complainant had taken offence at the exchange between them.

The complainant outlined the original dispute with the co-worker and why she took offence at her attitude.

The sequence of events thereafter is as set out above.

She had sought an amicable dispute of the matter but as she had heard nothing by December 13th she again sought, by email some response.

This was ignored, and she and the respondent met again on December 30th. She was asked not to come back to work and confirms that she was also told that she would continue to be paid.

She says that the MD said that he ‘wanted her out of the office’ (and ‘out of his life’) and that she was no longer needed in the company.

On January 7th she sought confirmation of what happened at the previous meeting and he confirmed it.

She told him that she had a good case for constructive dismissal and he repeated that he no longer wanted to see her in the office again.

Some indication of the unfortunate context for this complaint may be gleaned from the foregoing.

But this is a complaint of unfair dismissal and the first question is whether any dismissal has taken place.

On the day of the hearing both parties confirmed that the complainant continued to be in receipt of her salary some four months after the incidents outlined above.

There were some minor conflicts in relation to what exactly was said by the parties at their various meetings which might have had a good deal more significance in determining liability for what happened had the employment relationship been clearly terminated.

The parties were ultimately and, it seems, mutually agreed that the complainant should not work at the premises of the respondent until she found another job. Yet it is hard to discern an act of termination of any sort; especially as the complainant has continued to receive her wages.

The question is whether a contract of employment remained in being and I find that it did.

The complainant’s status is comparable to a form of ‘garden leave’ and while its current, open-ended nature is very unsatisfactory both legally and for the parties, (and they should take steps to resolve it), I must look at the complaint of unfair dismissal at the point when the complaint was referred to the WRC on February 2nd 2019, less than a month after the decisive meeting on January 7th.

At that stage the delay, which might in other circumstances have been a material factor in determining whether the contract of employment did continue in being, was not excessive, being a matter of less than four weeks.

I conclude therefore that no termination of the employment relationship had taken place at the date of the referral of the complaint to the WRC, the contract of employment remained in being and the complaint of unfair dismissal fails.

For the reasons set out above I do not uphold complaint CA-00026135-001 (or 002 which is a duplicate) and they are both dismissed.

Unfair dismissal.