Complainant

Respondent

Anonymised Parties

General Builder

Construction Company

Representatives

Self

Síne Creamer BL instructed by Aaron McKenna Solicitors

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00026989-001

12/03/2019

The Complainant submits that he commenced work with the Respondent on 15th October 2018.

The Complainant submits that he had an accident at work on 22nd November 2018 and was on sick leave from that date.

The Complainant submits that he met the Respondent by arrangement on 27th November 2018.   The Complainant submits that the Respondent informed him at the meeting that they might not have work for him in the New Year and suggested that he ask his previous employer to take him back.

The Complainant submits that he understood that he was dismissed by the Respondent.

The Respondent submits that the Complainant had an accident at work on 21st November 2018 and that he was on sick leave from that date.

The Respondent submits that he arranged to meet with the Complainant on 27th November 2018 to see how he was doing. According to the Respondent, at that meeting, he informed the Complainant that they did not currently have any new contracts agreed for the New Year but that they hoped to have work for the Complainant.

The Respondent provided the hearing with a copy of a text message from the Complainant dated 3rd December 2018 in which he stated that he had “followed your advice and found a job as you told me you won’t have one in January”.

The Respondent also provided the hearing with a copy of a text message from the Complainant dated 12th December 2018 in which he requested his P45.

Section 1 of the Unfair Dismissals Act 1997 provides the following definition for “ dismissal”, in relation to an employee:

“( 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 matter for me to decide is whether or not the Complainant was dismissed by the Respondent with the meaning of section 1 of the Unfair Dismissals Act, 1997.

In this regard, I am guided by “Redmond on Dismissal Law” (Third Edition) [22.13] page 493 which states as follows:

“In general a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt that dismissal was intended or it may reasonably be inferred as having been intended”.

I am of the view that, at their meeting of 27th November 2018, the Respondent put the Complainant on notice that he might not have work for him in the New Year due to a slowdown in his business. I do not accept, however, that this constituted a dismissal.

At the hearing, the Complainant accepted that he had send a text to the Respondent on 3rd December 2018 informing them that he had found a new job. He also accepted that he had sent a text to the Respondent on 12th December 2018 in which he asked for his P45.

I find that the decision of the Complainant to view the Respondent’s warning about a possible slowdown in the New Year as a dismissal was premature. I find that the Complainant was not dismissed by the Respondent.

I find that this complaint is not well founded.

Fact of dismissal in dispute