Complainant

Respondent

Anonymised Parties

General Maintenance Handyman

Public House

Representatives

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-00024897-001

08/01/2019

The Complainant was employed as a general maintenance handyman by the Respondent to work one day per week.  The Complainant alleges that he was unfairly dismissed by the Respondent.  The Respondent disputes that a dismissal took place.

The Complainant submits that he was due back at work on the 8^th January 2019. 

The Complainant submits that he was hired by K, the Project Manager and all communication regarding his employment was done through K.

The Complainant submits that on the 8^th January 2019, he received the following text from T, the owner of the business:

“Hey [Complainant], T here from the [Respondent].  K is moving on from working with us and we decided it’s probably best to end the retainer system we had with yourself, as we are not quite replacing K with like for like person, so will be more work on a job-by-job basis if you get me? If you’re still up for working with us like, that’s great, if not no problem.  Thanks for everything you’ve done for us.  Whatever you decide, it’s much appreciated! T.”

The Complainant felt that the text was very unprofessional and that he did not know how to respond as he had never previously received a text from the owner. He did not contact the Respondent nor did he go to work on the 8^th January 2019 or any subsequent day.

The Complainant submits that that was the first day he did not turn up for work while he was employed by the Respondent.

The Complainant asserts that he was dismissed by the Respondent.

The Respondent submits that because the Project Manager was moving on, there was not enough regular work for the Complainant but that they would be able to keep him on on a job-by-job basis. 

The Respondent submits that the purpose of the text was to open up a discussion.  When they got no response, and the Complainant did not turn up for work on 8^th January 2019, they assumed that the Complainant had resigned.

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 text sent by the Respondent to the Complainant on 8^th January 2019 constitutes a dismissal within 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”.

Ideally the Respondent in the herein case should have either spoken to the Complainant about his future when he arrived for work on 8^th January 2019 or, at the very least, should have phoned him.  Either option would have enabled the parties to engage in meaningful discussion and, hopefully, would have clarified for the Complainant his future employment status with the Respondent.  Unfortunately, the Respondent did not see fit to embark on either course of action.

In the absence of “clear and unequivocal” information from the Respondent in his text message of 8^th January 2019, I am of the view that the Complainant should either have gone to work or phoned the Respondent with a view to engaging in a meaningful discussion with the Respondent in an effort to clarify the contents of the Respondent’s text message with regard to his future employment status.

I find that the decision of the Complainant to view the Respondent’s text message as a dismissal was premature and, accordingly, that the Complainant was not dismissed by the Respondent.

I find that this complaint is not well founded.

Fact of dismissal in dispute