ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00017746

Parties:

Complaint/Dispute:

Date of Adjudication Hearing: 11/01/2019 & 22/02/2019

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

The Complainant referred a complaint of unfair dismissal and an industrial relations dispute to the Workplace Relations Commission (WRC) on 30th October 2018. In accordance with Section 8 of the Unfair Dismissals Acts 1977-2015 and Section 13 of the Industrial Relations Act 1969, following referral to me by the Director General, I inquired into this complaint/dispute and gave the Parties an opportunity to be heard by me and to present any relevant evidence. The Complainant was represented by Counsel instructed by Martin Solicitors whilst the Respondent was represented by Sherwin O’Riordan. The Complainant and the CEO of the Respondent attended and gave evidence.

This matter was initially listed for hearing before me on 11th January 2019. The industrial relations dispute - CA-00022924-002 regarding the Respondent’s bullying and harassment procedures was withdrawn on behalf of the Complainant. In relation to the complaint of unfair dismissal - CA-00022924-001, the Respondent raised a preliminary issue as to whether a dismissal within the meaning of the Unfair Dismissals Acts 1977-2015 had taken place, being a jurisdictional prerequisite to pursuing a complaint of unfair dismissal and the matter was adjourned to facilitate the exchange of legal submissions. At the resumed hearing on 22nd February 2019, it was confirmed that no alternative complaint of constructive dismissal was being pursued by the Complainant. Other extraneous issues were not pursued. It also materialised that on 21st December 2018, the Complainant had referred a further complaint under the Payment of Wages Act 1991 - CA-00024413-001 in respect of pay in lieu of notice. However, this complaint had not been linked to the hearing of the complaint/dispute herein pending a response to the WRC’s notification to the Complainant’s Solicitors that the complaint was out of time and the Respondent objected its inclusion within this hearing. I therefore heard oral evidence necessary to determine both the preliminary issue and the substantive unfair dismissal complaint. As dismissal was in issue, the onus of proof rested with the Complainant and she gave her evidence first. The Parties’ respective positions are summarised hereunder followed by my findings & conclusions and decision. I acknowledge the enormous amount of work undertaken by both Parties and have taken all evidence, submissions, supporting documentation and case/law presented into consideration.

CA-00022924-001 – Complaint of Unfair Dismissal - Background:

The Complainant was employed by the Respondent from 30th October 2003. She contended that she had been dismissed on foot of a text and email from her CEO on 1st May 2018 following a disagreement, or alternatively on receipt of her P45 following referral of this complaint to the WRC. She was earning €110,000 plus discretionary bonus of €16,500 per annum at the material time and seeks compensation. The Respondent has put dismissal in issue and contends that the Complainant resigned from her position and therefore this complaint is misconceived and/or not well-founded.

Summary of Complainant’s Case:

The Complainant gave evidence with reference to supporting documentation as furnished and supplementing detailed written submissions on her behalf. She confirmed that she had commenced employment with the Respondent on 30th October 2003. She was initially employed as an Accounts Administrator and worked her way up to the role of Compliance Director. She reported to the CEO, Mr A, as per her updated contract of employment furnished. At the material time of the termination of her employment her gross salary was €110,000 per annum, with a discretionary bonus of €16,500 contingent upon performance. The Respondent is a small enterprise involved in the provision of specialist information technology services. Over the course of her employment the Complainant enjoyed a positive working relationship with the Respondent, and her performance was rewarded with several substantial pay increases and promotions as per notifications from Mr A furnished.

In November 2017, the majority shareholding in the Respondent held by Mr A was purchased by a foreign company, Company B. The sale of the Respondent’s shares was based upon an initial payment by Company B to the CEO of the Respondent, Mr A, with subsequent payments based upon performance figures. It is not in dispute that at all material times, the Complainant continued to be employed by the Respondent and the Parties were bound by the terms of her employment contract.

On 26th April 2018, Mr A called the Complainant to a meeting to discuss her unclaimed annual leave from 2017. She contended that at this meeting, Mr A informed her that she would not be allowed to carry forward her entitlements as previously agreed in her updated contract, the reason being that this practice was not in accordance with Company B’s policy. At the time, she had fifteen days’ worth of unclaimed annual leave from 2017, as she had been asked to cancel her leave requests to suit business requirements and cover Mr A’s absences. She contended that Mr A had also requested that she adjust the closing accounts of the Respondent by removing the figures relating to her annual leave in order to reduce the losses on account. The annual leave entitlements amounted to a value of approximately €9,000 on the cost sheet of the Respondent. Mr A had told her that the reason for this request was that the level of pay-out from Company B to the Respondent was dependent upon these figures and that if the amount payable to the Complainant remained on the accounts, his payment would be adversely affected. The Complainant was taken aback by this demand and did not believe that this was a fair and reasonable request to make of her and refused to comply. Relations at the meeting deteriorated as Mr A continued to put pressure on her to follow his instructions. Mr A also stated that her salary was considerably above average and that she should consider this as justification for waiving her annual leave. She felt intimidated by these comments and left Mr A’s office feeling extremely upset after the meeting ended without resolution.

The following day, 27th April 2018, in an effort to resolve the issue, the Complainant sent an email to the HR contact for Company B outlining her concerns regarding her annual leave arising from her meeting with Mr A. After sending the email, Mr A called her into a further meeting that afternoon and again instructed her to ‘rework’ the figures on the Respondent’s accounts to improve the closing figures and avoid an impact on his payment from Company B. When she again stated that she would not do this, Mr A became visibly frustrated by her refusal. He then questioned the amount of work she was doing and threatened disciplinary action against her for alleged complaints made about her behaviour from two of her colleagues. The Complainant was shocked by this comment as she was unaware of any alleged complaints or concerns about her behaviour. She did not believe that there was any substance to them but rather that Mr A was using them as a threat that would be acted upon unless she complied with his demands. She felt that she was being subject to unreasonable pressure and demands and coerced into complying with something improper. She was on the verge of crying so left the meeting. As she returned to her office, she was followed by Mr A who continued to press upon her his demand for a change to the figures. In doing so, he repeated his threat of disciplinary action. The Complainant started to cry, at which point Mr A went to the kitchen to make coffee. Feeling intimidated and upset, she took this opportunity to leave the office. Later that day, Mr A sent an email to the Complainant stating: “I refer to our meeting today when you left the office without any permission and in circumstances that are wholly inappropriate. I need you to inform me exactly when you intend returning to work? and you might note that I intend instituting formal proceedings in relation to a number of the issues we discussed this morning and in relation to the manner in which you left the office and generally behaved today.” The Complainant understood the threat of formal proceedings to relate to the alleged difficulties with her colleagues despite no formal complaints ever being made against her. Mr A also texted the Complainant on 30th April 2018 as follows: “…further to my voicemail just now, I am concerned that you have not responded to my message on Friday last sent by email to your gmail account, and you are now absent without permission. Please contact me immediately to discuss the current situation.” The Complainant felt completely demoralised after these meetings, was in a state of shock and unable to return to work.

On 1st May 2018, the Complainant set out in detail what had occurred at the meetings in an email to her HR contact in Company B seeking an investigation into Mr A’s behaviour given that she had previously been advised that its procedures would be followed in the event of an employment dispute. She attached a comprehensive narrative of the two meetings held with Mr A the previous week including his demands and threatened disciplinary action. She stated that his behaviour had left her feeling “extremely upset”, and she felt that she “…was being coerced into agreeing to something that went against my core values” and “…took the opportunity to remove myself from what I perceived to be an intimidating and unsafe situation for me personally, as at all times this behaviour was taken against me when there were only the two of us, and left the office.” Later the same day, the Complainant received a text message and email from Mr A giving her the following ultimatum: “I refer to my email on the 27th April last and to my telephone call and text to you yesterday, none of which you have responded to. As you are fully aware, this is a very busy time for the business and for you to disappear without any contact is extremely serious for the company. If I do not hear from you before close of business tomorrow, I am regarding your walk-out and subsequent unauthorised absence as the resignation of your employment.” The Complainant was deeply shocked by this, was unfit to work and did not feel that she could engage with Mr A as demanded given her health and his behaviour towards her the previous week. She did not contact Mr A but forwarded a copy of his last email to Company B asking if it was to be taken as confirmation that there would be no intent to investigate her grievances. In the weeks that followed, the Complainant attended her GP for treatment for workplace stress and anxiety arising from the aforesaid. She was first certified as being unfit for work by a certificate dated 29th May 2018, back-dated from 30th April 2018. She continued to submit medical certificates to the Respondent for the period prior to referral of this complaint on 30th October 2018 and up until 12th November 2018.

The Complainant had no further meaningful engagement with Mr A and received a final payment of her wages in May 2018 but no subsequent payment or other contact with the Respondent in respect of her employment status or absence on sick-leave. She continued to engage with Company B in respect of the grievances she had brought to their attention. However, she contended that the procedures adopted in investigating these complaints were deficient in a number of respects. The defects arose from the ambiguous relationship between the Respondent and Company B including a lack of clear procedures and deficient fact-finding process leading to a decision not to uphold her grievances against Mr A. The Complainant availed of an appeal against this decision by letter dated 21st June 2018 setting out her concerns regarding the investigation conducted and the background to her dispute with Mr A in more detail. Without recourse to the Complainant and through procedures not notified to her, the CEO of Company B dealt with her appeal and issued a short letter dated 11th October 2018 upholding the decision to reject her grievances. She was deeply disappointed and upset by what she perceived to be a failure by Company B to meaningfully engage with her grievances and believed its investigation to have been perfunctory. She contended that the entire process had exacerbated her stress and anxiety. Neither did she receive any clarification from the Respondent regarding the ultimatum issued by Mr A or her employment status throughout the investigation process. She further contended that there had been no further contact from the Respondent following the completion of this investigation and preceding referral of this complaint.

In written submissions, the Complainant’s Legal Advisors confirmed that she had obtained legal advice and was advised to initiate a complaint of unfair dismissal pursuant to the Unfair Dismissals Acts to the WRC given the ambiguity over her employment status arising from the Respondent’s conduct and correspondence. The complaint form submitted on 30th October 2018 gave her date of dismissal as 1st May 2018 and under the ‘Complaint Specific Details or Statement’ section, it was stated: “Claimant received notification of her dismissal on 01.05.2018 stating that unauthorised absence was being construed as resignation.” Likewise the written submissions made on her behalf referred to 1st May 2018 as being the date of dismissal. It was submitted that this complaint was referred primarily to protect her legal rights as the six month time period to instigate a claim was expiring, should her employment be deemed to have terminated on 1st May 2018. It was further confirmed that the Complainant had not wished to go down the constructive dismissal route.

Following referral of this complaint to the WRC, the Complainant received a letter dated 13th November 2018 from Mr A acknowledging receipt of her last medical certificate and stating: “I am now enclosing a copy of your P45. We note that you have filed a Workplace Relations Commission claim for unfair dismissal which we received approximately a week ago. In that form you claim that you were dismissed in May of this year and whilst the company vehemently denies that you were ever dismissed, it is clear that you regard yourself as having been dismissed and it is in those circumstances that you are furnished with your P45. I note that you continue to send in sick certification. This is obviously not required in circumstances where you no longer work for the company.” This letter was followed by a further letter dated 16th November 2018 from Mr A requesting the Complainant to return all company property to the offices of the Respondent’s Solicitors. Acting under the Complainant’s instructions, her Solicitors wrote an open letter to the Respondent’s Solicitors on 23rd November 2018 outlining various issues taken with the investigation into her grievances and also reiterating her position in relation to the referral of this complaint to the WRC: “It was incorrectly suggested that our client had resigned her position. For the avoidance of doubt, our client did not resign her position. Given the statutory time period provided under the Workplace Relations Act 2015, we have lodged a precautionary claim in relation to this matter under the Unfair Dismissals Acts… and the Industrial Relations Act. Our client was certified as unfit to work and remained on sick leave due to work-related stress and anxiety to which your client is aware. She was anxious to return to work however as you can imagine the lack of engagement in relation to her grievance appeal caused her considerable stress.” It further outlined the exacerbation of the Complainant’s stress and anxiety caused by the most recent correspondence and furnishing of her P45 and questioned the basis upon which it had been issued. Finally, it confirmed that: “We are available to engage with your office on our client’s behalf in an effort to resolve the present issues.”

By letter dated 29th November 2018, Solicitors for the Respondent wrote to Solicitors for the Complainant questioning what is meant by ‘a precautionary claim’ and denying that the Complainant had been dismissed on 1st May 2018 or otherwise. In the interim, the Parties were notified that this complaint and accompanying dispute were listed for hearing on 11th January 2019. By letters dated 6th and 13th December 2018, the Respondent’s Solicitors sought a response to their last letter. By open letter dated 21st December 2018, the Respondent’s Solicitors wrote again, this time stating that her position was open to her and she could return to work as follows: “We note that your client appears to be maintaining that our client terminated her employment on the 1st May. Please note that our client strenuously refutes such an assertion and is happy for your client to return to work at any time, assuming she is fit to do so.” The Complainant’s Solicitorsdid not reply to this letter immediately for a variety of reasons including the fact that it was the Christmas holidays and her father was in hospital. Having considered the matter, the Complainant contended that she had been willing to accept the assurances provided by the Respondent in relation to her employment and withdraw her claim as the dispute would have been moot. However, on 10th January 2019 and the day before the hearing, the Respondent’s Solicitors wrote to the Complainant’s Solicitors withdrawing its offer of a return to work stating: “Whilst we note that your client refuses to accept that she resigned her position, there cannot be any other construction. It is perfectly clear that your client was never actually dismissed by our client. In circumstances where it is clear that your client has no intention of ever returning to work having left without any explanation on 27th April, last and having failed to respond to our correspondence wherein she was invited to return to work, it is only logical to assume that the date upon which your client resigned her position was the date that she left our client’s offices (being the 27th April, last). In those circumstances, the P45 issued to your client stands.” There was an open exchange between the Parties along similar lines at the hearing on 11th January 2019. The Respondent’s Solicitor also confirmed that the fact of dismissal was being put in dispute and the hearing was adjourned to enable the exchange of legal submissions. By open letter dated 14th January 2019 to the Respondent’s Solicitors, the Complainant’s Solicitors referred to their exchange and stated: “Our client is confused and disappointed that your client has decided to renege from its position as expressed in the letter of the 21st December ult., that her employment had not been terminated and that your client was happy for her to return to work at any time… our client had intended to withdraw her claim for unfair dismissal and return to work on the basis of the clarity provided by this letter. It now appears… that this is no longer an option. We note your latest position is that our client resigned from her employment in April 2018. For the avoidance of doubt, we repeat again that our client did not resign from her employment at any stage. As we explained to your offices in detail in our letter of 23rd November 2018, the claim for unfair dismissal was lodged on a precautionary basis at a time when our client was certified unfit for work. The reason for this was that there was considerable ambiguity over whether her employment had been terminated by your client in May 2018 and the statutory time period to lodge a claim had been reached.”

Finally, the Complainant confirmed that following her last payment of salary in May 2018, she had been in receipt of Social Welfare for a period. She also confirmed that at the end of January 2019, she had secured employment in a similar position with a new employer from 11th February 2019 on a salary of €100,000 per annum along with a performance related bonus. Mitigation of losses was not put in issue. The Complainant sought compensation in respect of her existing and future losses.

The Respondent’s Solicitor put the Respondent’s position to the Complainant and questioned her about the Parties’ conduct after the alleged date of dismissal. When asked why the Respondent would have paid her up until the end of May 2018 if she had been dismissed on 1st May 2018, she said that she thought this was standard procedure with Company B. When asked why she had not submitted a medical certificate until the backdated certificate submitted at the end of May 2018, she said it had been unnecessary before then given that she had been paid for May. She had felt confused about her employment status following her exchanges with Mr A and hoped that the grievance procedure would resolve matters. It was put to her that she had walked out of work and had been absent without permission for a period which she denied. It was further put to her that she had rebuffed Mr A’s efforts to contact her and had made no efforts to return to work. She maintained her position that the Respondent had not engaged with her. It was put to her that she had not made any reference to being dismissed in the ensuing six month period until referral of this complaint. When asked what she considered her employment status to have been for this period, she said that she considered herself to be on sick-leave pending the investigation of her grievances. She confirmed that she had received her outstanding holiday pay. She also accepted that she had received a gift of a 10% shareholding in the Respondent in 2017 when her €9,000 cheque for same had not been cashed and had also recently received a significant payment of €81,000 in a pay-out.

It was submitted that the Complainant was deemed to have been dismissed by the Respondent on foot of Mr A’s text and email of 1st May 2018. Reliance was placed upon various cases regarding a dispute as to dismissal including Devaney -v- DNT Distribution Company UD412/1993 which set out an objective test. The failure by an employer to make an effort to clarify its position and resolve a dispute was held to be a relevant factor in Mansour -v- Romanza Limited UD360/2004. In that case, the EAT found that use of words “leave now” following an altercation was tantamount to dismissal particularly where no effort was made by the manager to contact the employee to resolve their dispute. Similarly, in the present case, the Respondent had failed to clarify the comments made to the Complainant on 1st May 2018. In Duggan -v- A&T Drain Services UDD1737, the Labour Court held that it is the employer’s behaviour that is determinative in deciding whether a dismissal had taken place. With support from the reasoning in these cases, it was submitted that the Complainant had been dismissed by the Respondent and did not voluntarily resign on 27th April 2018 or thereafter as contended. The Respondent had failed to engage or correspond with the Complainant following 1st May 2018 in order to clarify her employment status. She had engaged with Company B’s grievance procedures in an effort to resolve her difficulties with Mr A. She had continued to submit medical certificates to the Respondent until she was furnished with her P45 and instructed that they were no longer necessary. The first clarification as to her employment status was the Respondent’s confirmation that her position remained open on 21st December 2018. However, this offer was withdrawn without explanation on 10th January 2019 and the Respondent reverted to its original position in accordance with Mr A’s text and email of 1st May 2018. In summary, the Complainant maintained her position that at no stage did she resign or intend to resign from her employment. She had referred this complaint of unfair dismissal as a precautionary measure due to the ambiguity that existed over her employment status on legal advice in order to protect her statutory rights as notified to the Respondent. In all the circumstance it should be determined that the Respondent terminated the Complainant’s employment. It follows that this termination of employment was prima facie unfair and the Complainant is therefore entitled to redress under the Unfair Dismissals Acts on the basis that the Respondent had no grounds to justify the dismissal, failed to follow any fair procedures in respect of the dismissal and had acted unreasonably in all the circumstances.

At the hearing, it was further submitted that if the Complainant was deemed not to have been dismissed by the Respondent on 1st May 2018, then in the alternative she was dismissed by virtue of being furnished with her P45 under cover of a letter dated 13th November 2018 following referral of this complaint on 30th October 2018. There was some discussion as to whether a complaint of unfair dismissal on a date subsequent to referral should be entertained in the context of the High Court Judgement in Brady -v- Employment Appeals Tribunal & Bohemian Football Club (2014) IEHC 302.

Summary of Respondent’s Case:

The CEO, Mr A gave brief evidence with reference to supporting documentation as furnished and supplementing the detailed written submissions furnished. He outlined the nature of the Respondent’s business and Complainant’s employment history which was not in issue. With the benefit of the training afforded, the Complainant had enjoyed an upward promotional trajectory.

By way of Agreement dated 20th December 2017, the Respondent was purchased by Company B. The Complainant was gifted 10% of Mr A’s shares in the Respondent as part of the sale of the Respondent and was fully aware of the transaction. An uncashed cheque for €9,000 from the Complainant for the shares was submitted in this respect. As part of the administrative changes resulting from the transaction, certain functions previously undertaken by the Respondent were managed by Company B from its base abroad. The Complainant’s role evolved and from 22nd March 2018, she had the sole responsibility for a specialist brokerage and the corresponding reporting. This function required detailed and timely statutory reporting in adherence with strict statutory deadlines. Failure to comply could result in the Respondent’s liability for fines and a Revenue audit.

Documentation submitted by Mr A as part of the investigation into the Complainant’s grievances clearly put her account of what occurred at the meetings of 26th and 27th April 2018 in issue. It was further contended that the latter meeting had been a routine review of the Complainant’s role. In the course of that meeting, Mr A had articulated some legitimate concerns regarding her productivity and output. She reacted badly to some of the issues raised and was extremely angry despite his attempts to calm her. Mr A contended that she wanted to be bought out. She walked out of the meeting and ultimately out of the office and never returned. This ‘walk-out’ took place just as statutory deadlines were fast approaching and during one of the busiest times in the business when all filings are prepared. The Complainant was fully aware that she would be leaving the Respondent in an extremely difficult position and never explained her behaviour. As outlined above, Mr A issued a letter by email to the Complainant on the afternoon of 27th April 2018 inquiring as to when she would return to work but no response to this correspondence was ever received by the Respondent. Mr A additionally made a number of unsuccessful attempts to contact the Complainant by telephone and text to establish the position in respect of her employment as outlined above. He did not know what the Complainant had done or intended to do regarding her job and it appeared as if she had left permanently. On 1st May 2018, Mr A wrote to the Complainant in an attempt to elicit a response and advised her that if she did not respond, the Company would have no option but to regard her as having resigned her position. On the same day and unbeknownst to Mr A owing to the time difference, the Complainant issued correspondence directly to Company B but not to the Respondent being her de facto employer. The Complainant’s absence continued without any explanation whatsoever to the Respondent. As per the Complainant’s correspondence, she purported to raise grievances against Mr A. By letter dated 22nd May 2018, the Global Head of Human Resources wrote to the Complainant confirming that her grievances would be investigated, set out the manner in which this would be conducted and also stated: “I am aware that you left your office following a meeting with (Mr A) on the 27th April, last. As matters stand, you should note that you are absent from work without permission and I should inform you that this may be the subject of disciplinary action against you in due course.” On 23rd May 2018, he emailed Mr A’s statement to the Complainant and afforded her the opportunity to respond. On 25th May 2018, he emailed her reminding her of the timelines and stating: “…the company will no longer be paying you after the end of this week as you are absent without permission.” Accordingly, she was paid up until the end of May 2018. Thereafter, she submitted a medical certificate dated 29th May 2018, one month into her unauthorised and unexplained absence, advising that she had been certified sick from 30th April 2018. The Complainant furnished medical certificates to the Respondent on a continuous basis from that date up until 12th November 2018, post-dating referral of this complaint on 30th October 2018.

On 1st June 2018, the Complainant wrote to the Respondent expanding on her position in respect of her grievances notably stating: “I am a totally committed employee.” It was submitted that it was difficult to marry this with her assertion that her position had been terminated. On 14th June 2018, the findings in relation to her grievances were issued to the Complainant. On 19th June 2018, Mr A emailed the Complainant stating: “Noting your recent medical certs, can you give me an idea of when you/your Doctor feels you will be able to return to work? From a health and safety perspective, I obviously need to ensure that you are ok to be at work. I am therefore going to make arrangements for you to be examined by an independent Doctor, details of which will be forwarded in due course. I think it would be a good idea if we could meet and have a coffee and a chat if you are able at some point?” However, he did not receive any response. On 21st June 2018, the Complainant appealed the investigation findings which was ultimately rejected by the Respondent on 11th October 2018. The Complainant referred this complaint of unfair dismissal to the WRC on 30th October 2018. Upon receipt of the complaint form and as already outlined above, Mr A wrote to the Complainant enclosing her P45, denying that she had been dismissed but acknowledging that she regarded herself as having been dismissed. It remained open to the Complainant at all times up until the hearing of her case to return to work as communicated in writing on 21st December 2018.

On behalf of the Respondent, it was submitted that the onus rested with the Complainant to prove dismissal and she had failed to do so. The employment relationship had remained very much intact after the date of the alleged dismissal despite the interpersonal difficulties that had arisen between the Complainant and Mr A. The continuation of that relationship beyond 1st May 2018 has been acknowledged in writing and by the conduct of both the Complainant and the Respondent. Whilst referral of the complaint form to the WRC claiming unfair dismissal is de facto evidence of the termination of the employer/employee relationship, the conduct of both Parties does not support the Complainant’s contention that the Respondent terminated her employment and/or that she was dismissed. In particular, the text and email of 1st May 2018 from Mr A to the Complainant did not in any way indicate that she was being dismissed and nor did she respond by stating that she considered this to constitute a dismissal; the Respondent paid the Complainant after the alleged date of dismissal; the Respondent engaged in an extensive investigation and appeal process into her grievances from May until October 2018; Mr A emailed the Complainant on 19th June 2018 enquiring about her return to work and offering to meet for a chat; the Complainant submitted medical certificates to the Respondent up until 12th November 2018; in the open letter of 23rd November 2018, the Complainant’s Solicitors acknowledge that she was “anxious to return to work”; at no point prior to the submission of her complaint form did the Complainant communicate that she considered herself as having been dismissed; there has never been any ‘letter before action’ from either the Complainant or her Solicitors and it is not understood what is meant by ‘precautionary proceedings’ in the context of the WRC. It was illogical that the Respondent would continue to pay the Complainant, would embark upon an extensive grievance process and would enquire about her return to work on 19th June 2018 if she had been dismissed on 1st May 2018. It is also illogical that the Complainant would engage in a lengthy grievance process and submit medical certificates for the period from 30th April 2018 until 12th November 2018 if she had been dismissed on 1st May 2018.

The Respondent also sought to distinguish the facts in the instant case from those in the caselaw relied upon and cited aforesaid. With reference to the Complainant’s reliance upon Devaney -v- DNT Distribution Company UD412/1993, it was submitted that the actions of the Respondent subsequent to the date of the alleged dismissal demonstrate in the clearest possible way that no dismissal in fact occurred. With reference to the reliance upon Mansour -v- Romanza Limited UD360/2004, it was submitted that there was a stark contrast between the facts of that case and the instant case. In that case the claimant had been told by her employer to ‘leave’ and no effort was made by the manager thereafter to contact the claimant and resolve the dispute. In the instant case, the Complainant had left the premises voluntarily without any encouragement from the Respondent. She was not told to leave, she was not asked to leave and it was not in any way suggested to her that she ought to leave. Secondly, it is clear from the correspondence from Mr A to the Complainant dated 19th June 2018 and from the grievance process conducted from May until October 2018 that the Respondent had sought to resolve any dispute. Finally, in Duggan -v- A&T Drain Services UDD1737, the Labour Court took into consideration the behaviour of the Respondent in determining whether a dismissal had taken place. In that case, the claimant’s manager had ordered the claimant to return the keys to a company vehicle and had left him to make his own arrangements to get home. The Labour Court took the view that in doing so, the Respondent had sought to deprive the claimant of his capacity to continue in employment. Contrary to the submission in the instant case, the Respondent had clearly sought to facilitate her return to work.

On behalf of the Respondent, it was further submitted that the Complainant’s assertion that the Respondent had failed to engage or correspond with her following 1st May 2018 to clarify her employment status is factually inaccurate. It is clear from the documentation referenced throughout and furnished at the hearing that the Respondent was completely unaware that there was even a question of the Complainant having been dismissed. On that basis, any effort by the Respondent to ‘clarify her employment status’ did not arise. The Complainant had in fact considered herself to be employed for approximately six months after the date of the purported date of termination. The ‘precautionary’ complaint herein is therefore frivolous and vexatious and should be dismissed. Overall and based upon the factual situation pertaining between the Parties as outlined above, there was no termination of the Complainant’s employment by the Respondent as set out in the complaint form or at all. It is also abundantly clear that that the Complainant’s conduct not only constituted her resignation from her employment but had the effect of eroding the employment relationship of mutual trust and confidence beyond repair. It therefore follows that the Unfair Dismissals Acts do not apply to the instant case and on that basis this complaint must fail.

Findings and Conclusions:

It is necessary to apply the factual matrix to the applicable statutory provisions and caselaw to determine whether a dismissal had in fact taken place in the instant case within the meaning of the Unfair Dismissals Acts 1977-2015 and if so, whether it was unfair. Essentially the Complainant contends that the Respondent terminated her employment on 1st May 2018 on foot of the various communications from the CEO, Mr A, as outlined above whilst the Respondent contends that both Parties’ conduct was not consistent with a termination of her employment. A complaint of unfair dismissal referred under Section 8 of the Act requires a dismissal to have taken place as a jurisdictional prerequisite by virtue of Section 6 of the Unfair Dismissals Act 1977 which provides: “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” Section 1 of the Act defines “dismissal” in relation to an employee in the context of a complaint of unfair dismissal as “(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,”.This wording imposes the onus of proving the fact of dismissal on the employee where it is put in dispute, and it is not until that has been established that the onus of proving that the dismissal was not unfair rests with an employer.

In most instances, an employer will have informed an employee clearly and unequivocally in writing that an employment contract is at an end, more usually in cases of dismissal for misconduct and there is no issue as to dismissal. However, instances arise where there is doubt as to dismissal and caution is required to ascertain the true factual situation. At paragraphs 22.14-15 of Redmond on Dismissal Law (2017), Desmond Ryan succinctly sets out the position in such cases: “Employers may attempt to avoid the consequences of dismissal, e.g. by providing in the works rules that on a particular breach employees will be ‘assumed’ to have left their employment or to have dismissed themselves. Breach of such a rule does not automatically exclude a claim under the Act. An employer may, for example, instruct an employee to perform the contract and tell him that if he fails to do so he will be deemed to have resigned. Where the employee actually resigns, everything will depend on whether the instruction issued by the employer was one which could lawfully issue under the contract of employment. If the employer was acting dehors the contract, its conduct may constitute a breach which is sufficient to justify the employee leaving and claiming constructive dismissal. The so-called doctrine of employee repudiation was mentioned earlier, para [22.09]. It is only exceptionally, it is suggested, that employee repudiation should be held to amount to a termination of the contract by an employee.” Caselaw from the various Irish fora as cited above set out the various tests used to determine disputes where dismissal is in issue following a breakdown in relations and each case tends to turn on its own particular facts. In Devaney -v- DNT Distribution Company Ltd UD412/1993, the EAT set out the following objective test: “…where words are genuinely ambiguous what needs to be decided is what the speaker intended? Did the employer mean to bring the contract to an end? In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention. We find, having regard to the relationship that existed between the parties prior to the termination and the claimant’s evidence that [the director of the respondent company] often expressed his feelings in very strong language, that the words uttered by [him] in an angry mood, did not amount to a dismissal and were never intended as such.” An objective assessment is therefore required to determine whether an employer intended to bring an employment contract to an end and how a reasonable employee in all the circumstances would have understood that intention.

Therefore, Mr A’s words as contained in his text and email of 1st May 2018 as outlined above cannot be taken in isolation and the Parties’ conduct thereafter has to be assessed in determining the issue.

Unfortunately it appears that after enjoying a positive working relationship with Mr A from 2003, during the course of which the Complainant had impressively worked her way up to a very senior position, relations broke down towards the end of April 2018 following a transfer of the business. In relation to the Respondent’s actions, it is not in dispute that the Complainant was paid up until the end of May 2018 and that her grievances against Mr A were processed albeit not to her satisfaction. The main distinguishing feature in the instant case to the caselaw cited is the fact that the Complainant herself did not consider herself to be dismissed by virtue of Mr A’s text and email of 1st May 2018 until she availed of legal advice some six months later, and this complaint of unfair dismissal was referred to the WRC on her behalf on a so-called ‘precautionary’ basis. It is not disputed that the Complainant engaged in a lengthy grievance process and submitted medical certificates even after the referral of this complaint. Throughout the exchange of correspondence, she referred to herself as an employee with no mention of considering herself to have been dismissed. Furthermore, it is not in dispute that regardless of the sincerity intended, Mr A wrote to the Complainant on 19th June 2018 seeking clarification as to her return to work and therefore the contention that there had been no efforts on the part of the Respondent to engage is not entirely correct. When the Complainant was asked at the hearing what she considered her employment status to be during this period, she replied that she considered herself to be on sick-leave pending the investigation of her grievances. The Complainant is effectively asking the WRC to retrospectively reinterpret an undisputed factual situation to infer that the Respondent unfairly dismissed her at a time when both Parties acted as if the employment contract was ongoing. Applying the aforesaid objective test to the factual matrix, I am not satisfied that the Respondent intended the Complainant’s contract to come to an end by virtue of Mr A’s text and email of 1st May 2018. In particular, I find that the Respondent’s investigation of her grievances against Mr A whilst all the time accepting medical certificates confirming her sick-leave to be inconsistent with the termination of her employment. I further find the Complainant’s response at the time, being to engage in a grievance process and submit medical certificates to be inconsistent with that of an employee who regarded themselves to have been dismissed. I must therefore conclude on the balance of probabilities that the Complainant has not discharged the onus of showing that she was dismissed by the Respondent within the meaning of the Unfair Dismissals Acts 1977-2015. Accordingly and as a matter of jurisdiction, she cannot pursue a complaint of unfair dismissal against the Respondent.

With respect, the Complainant’s evidence and submissions complaining of the unreasonable behaviour she was subjected to by Mr A and the Respondent’s inadequate response including a defective grievance process are more akin to those that would be made to support a complaint of constructive dismissal. As indicated by Ryan aforesaid, constructive dismissal is the more appropriate route in such circumstances. However, and with the benefit of expert legal advice, the Complainant opted not to pursue the constructive dismissal route and maintained her position that she had never resigned at any stage. For this reason, it is unnecessary to make any findings of fact regarding the reasonableness of the Respondent’s conduct. That is not to say that there are no concerns regarding same but merely that this is not relevant in the context of the complaint being put forward. Whilst sympathising with the Complainant’s position, I have to conclude that this complaint as an attempt to shoehorn a constructive dismissal complaint into one of unfair dismissal.

For the sake of completeness, I regard the exchange of open correspondence between the Parties’ Solicitors post-complaint as both protecting their positions and trying to meet a resolution which was unfortunately unsuccessful. It is therefore not necessary or appropriate to comment further on the apparent chopping and changing of their respective positions post-complaint. For the avoidance of doubt, I regard the furnishing of the Complainant’s P45 to her post-complaint as an administrative action in this context and there to be no factual or legal basis for the alternative proposition that this constituted a dismissal in the event that she is not deemed to have been dismissed on 1st May 2018. Fortunately, and to her credit, the Complainant secured alternative and similarly remunerated employment within a short period of time and consequently has not suffered significant losses.

Decision:

Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to a complaint of unfair dismissal in accordance with the relevant provisions. Based upon the aforesaid reasoning, I find this complaint not to be well-founded and accordingly, dismiss same in full.

Dated: 22/10/19

Workplace Relations Commission Adjudication Officer: Aideen Collard

Key Words: Unfair Dismissals Acts 1977-2015 - preliminary issue – fact of dismissal in dispute