Complainant

Respondent

Anonymised Parties

Fitter

Concrete Business

Representatives

Doran O'Toole Doran W. O'Toole & Co. Solicitors

O'Shea Legal

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00027148-001

19/03/2019

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

CA-00027148-002

19/03/2019

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

CA-00027173-001

20/03/2019

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

CA-00027173-002

20/03/2019

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 and has submitted that he was unfairly dismissed (CA-00027148-001)

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973) and has submitted that he did not receive his statutory minimum period of notice on the termination or payment in lieu thereof (CA-00027148-002)

Complaints CA-00027173-001 and CA-00027173-002 are a duplication and are withdrawn

The Complainant was employed as a fitter, following a period of working as a self employed contractor for the Respondent, on or about the 1st June 2016. The Complainant was paid €4,100.00 gross (€2,900.00 net ) per month for 55 hours worked.

In or around early September 2018, the Complainant informed the Operations Manager, on or about the 14th September 2018, that he was unfit for work for personal reasons and during the subsequent weeks the Complainant remained medically unfit for work and continued to keep the Respondent informed.

Although the Complainant was asked to come to work to deal with some urgent matters, the Complainant indicated he was unable to attend due to his ongoing personal difficulties. However, the Complainant did attend the workplace on the 5th and the 15th October 2018 to provide medical certificates that he was unfit for work.

On this latter date the Complainant met with the Managing Director (MD). During the course of their conversation, the Complainant discussed his ongoing difficulties. The MD sympathised with his situation, and asked him when he would be able to return to work. The Complainant informed her that he did not know when he would be able to return to work, but asked whether he could return to work when he was certified fit. The MD confirmed that he could return to work then.

The Complainant submits, at this juncture, he did not intend to resign, and did not indicate any such intention at this meeting. Further, he did not request a P45. The MD did not ask the Complainant whether he wished to resign or otherwise terminate the employment relationship. The Complainant left the meeting under the impression that he remained employed by the Complainant, and that he would return to work from sick leave as soon as he was certified fit to do so. The Complainant was asked to return the Respondent's vehicle to the Respondent, as he did not require it for work while he was on sick leave, but when he explained that he needed it to get home, it was agreed that he would return it on a later date.

On or about the 30th October 2018 the Complainant attended the workplace, in the company of his daughter, to return the Respondent's vehicle. Upon returning the said vehicle, the Operations Manager handed the Complainant an envelope in which the Complainant found his P45 stating that his employment had terminated on the 28th September 2018 (and which was generated on the 19th October 2018), and a reference letter dated the 26th October 2018.

The Complainant submits that the Respondent relied on the fact that the Complainant declined its offer of reinstatement as evidence that he did wish to work for the Respondent, and therefore as corroborative of the allegation that he resigned on the 15th October 2018. However, as per the letter of the 13th May 2019,the Complainant's solicitors informed the Respondent's solicitors that the Complainant had been asked by the Respondent when he would be fit to return to work, had stated that he could not say, and was subsequently dismissed by handing him his P45. They also informed them that the Complainant had commenced working part time and that he could not accept the proposal to recommence working for the Respondent, as he could not risk jeopardising alternative employment to mitigate his loss.

The Complainant submits that he did not use the grievance procedure because it no longer applied because he was no longer employed by the company. Section 3.21.1of the Company Handbook states that the grievance procedure is for an "employee" to complaint regarding "contractual duties". After his dismissal the Complainant was no longer an "employee" and was no longer party to a contract with the Respondent, so the grievance procedure did not apply and is irrelevant. The Complainant has no grievance with the company other than his unfair dismissal, and the grievance procedure is clearly not intended to address an employee's dismissal.

The Complainant accepts that his working relationship with the Respondent was generally very good and mutually satisfactory and any arrangements in relation to days off and general timekeeping were the subject of a mutual agreement between the Complainant and the operations manager.

The Complainant submits that the law requires a resignation to be clearly and unambiguously expressed there was no such clear and unambiguous expression of resignation, and the necessary consequence is that the handing of a P45 to the Complainant was an unilateral termination by the employer. The Complainant was dismissed on the day he attended the workplace to return the Respondent's vehicle and was provided with a P45.

Since this dismissal, the Complainant remained medically unfit for work (and in receipt of illness benefit) until the 11th March 2019 whereupon he started in receipt of jobseekers benefit and has been actively seeking work with the assistance of family.

These complaints were received by the Workplace Relations Commission on the 19th March 2019.

The Tribunal notes the additional submissions on behalf of the Complainant dated the 24th July 2019.

The Respondent refutes the assertion that the Complainant was dismissed and submits that he resigned unprompted of his own initiative and informed the Respondent that he was not available to work his notice. Therefore CA -00027148-001 does not apply as the employer did not utter words of dismissal and CA-00027148-002 is refuted as the claimant did not make himself available to work any notice period.

The Respondent outlined the timeline in relation to the Complainants’ employment with the Respondent Company and detailed the various days that the Complainant did not attend due to ongoing personal issues.

The Respondent submitted that the Complainant went in to talk with the MD unannounced on his own initiative. The MD was unaware that he would be meeting her and no meeting was arranged by her. The Complainant was focused on his ongoing personal issues and of the distance he had to travel to work. Accordingly, the Respondent submits that the Complainant stated that

as a consequence of these family circumstances he wouldn’t be able to come back to work, he was sorry and had no idea when or if he would be able to come back to work again. Further, he made no reference to hospital or being sick.

The Respondent submits that the Complainant was aware that he was essential to certain projects but in the circumstances he did not know if or when he would be back to work and that the Respondent should hire someone else. Further, he asked if he could return to work in the future if things changed for him and the MD told him he could come back any time he wished. Accordingly, the Respondent took these statements to be a voluntary resignation due to his personal circumstances and a declaration that the claimant did not wish to work a notice period.

The claimant then informed the MD that he would leave the van that day and not return to work. She told him that he could take the van to get home and return it in his own time. The meeting was cordial at all times and ended by the MD telling him to keep in touch with her. Following this meeting the Complainant met with the operations manager and said he was leaving and would leave the car back the following week and he made no reference to being dismissed.

The Respondent submitted that the operations manager was not in the plant on or about the October 30th 2018 and therefore could not have met or dismissed the claimant on that day as has been submitted. The operations manager categorically denies that he dismissed the Complainant at any time. Further, the operations manger had no authority to dismiss anyone and is expressly forbidden by his contract to do so;

The Respondent submitted that the company is missing a fitter since the Complainants’ departure and has not replaced him, although the Complainant refutes that. Upon learning that the Complainant had made a claim to the WRC that he was dismissed, the company immediately invited him to return to work as the need for his services continued. However, the Complainant has indicated he is not prepared to return to this employment as stated in the aforementioned letter of the 13th May 2019.

The Respondent submitted that the Complainant had signed his employment contract indicating that he had read the HR handbook which has a full disciplinary and grievance procedure and in this regard states “Any grievances will be dealt with under the grievance procedure as set out in the

company handbook. A copy of the procedure is available at the general office upon request.

All grievances should be addressed in writing to the Managing Director, Respondent Company, in the first instance”. The Respondent submitted that signing this contract implies that the employee handbook had been seen and accepted.

Further, at no time since the Complainants meeting with the MD on October 15th 2018 until notification of the claims submitted to the WRC was the Respondent made aware of any complaint by the complainant.

There is no history of rancour between the claimant and the respondent. On the contrary, the respondent has been keen to retain the services of the claimant and has attempted to facilitate and accommodate the difficulties he is experiencing in his personal life by providing him with the use of a vehicle and paying him for 10 days additional leave ex gratia over and above his contractual entitlement.

It is submitted that the claimant resigned on his own initiative against the wishes of the employer and that he has submitted no evidence to the contrary. The failure of the claimant to submit sick notes for two weeks prior to the purported date of dismissal or to utilise the grievance period for six months thereafter supports the view that the claimant left of his own volition. The fact that the respondent did not replace him and has invited him back to work at the first known opportunity supports the view that the employer had no cause or desire to dismiss the claimant. There is no record of disciplinary action against the claimant and he enjoyed an unusually lenient

timekeeping regime in recognition of his difficulties with his home situation.

The Respondent relies on the decision of the EAT in Casey v. Dunnes Stores [2003] ELR 313 as authority for the proposition that a complainant must prove that a dismissal occurred before the unfair dismissal legislation is engaged. The Respondent also relies on the decision of the EAT in Farrell v. Farcourt Foods Limited UD6l0/89 as authority for the proposition that the issuing of P45 does not necessarily in itself constitute the termination of an employment contract. Not withstanding the Respondent refuting these complaints herein, there is an understanding of the Complainants personal circumstances and accordingly the position remains open to him to return on the basis of reinstatement or reengagement.

The Tribunal notes the additional statement on behalf of the Respondent dated the 9th August 2019.

In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of this hearing by both parties and considered the written submissions provided.

The lawful reasons for dismissal are set out in Section 6 (4) of the Unfair Dismissals Act 1977 which provides:

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Further, an onus is placed on the employer by Section 6 (6) of the Unfair Dismissals Act 1977 which provides

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal”

In the particular circumstances of this case, the Tribunal notes the case of Millett v. Shinkwin l2004l15 ELR 319. In that case the Court considered in detail the law on effective resignations, and held that a "resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end". The Court went on to refer to Kwik-Fit (GB) Ltd v. Lineham ll992l IRLR 156, in which it was held that if "words of resignation are unambiguous then prima facie an employer is entitled to treat them as such".

Further, "When unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, generally it is safe to conclude that the employee has resigned. However, context is everything. A resignation should not be taken at face value where in the circumstances there were heated exchanges or where the employee was unwell at the time."

In relation to the meeting between the Complainant and the MD on the 15th October 2018, there is a significant difference in recollection between the two parties. However, upon consideration of the evidence of the parties and the relevant case law, I do not accept that the Complainant expressed the intention to resign in unambiguous and unconditional terms. Further, in the context of the accepted difficult personal circumstances of the Complainant this resignation, if any, should not have been taken at face value.

Further, in consideration of the personal circumstances of the Complaint and the high regard in which he was held by the Respondent, it would have been considerate of the Respondent to either meet or correspond with the Complainant after the meeting of the 15th October 2018 to confirm his intentions before presenting him with his P45 on a later date.

In that regard, the Tribunal notes that In the case of Farrell -v- Farcourt Foods Limited wherein that case related to the specific circumstances of an employee requesting aP45 during a period of lay-off, it was submitted by the Complainant that in contract, and in the specific circumstances of this case, where there has been no resignation or any termination of the employment by an employee, the employer handing aP45 to the employee amounts to the unilateral summary termination of the employment by the employer.

Accordingly, in relation to the Complainant being presented with his P45, I note the supportive and persuasive evidence of the Complainants daughter who was in attendance on that particular day and I find that by giving the Complainant his P45 on or about the 30th October 2018, the Respondent unfairly dismissed the Complainant.

In all of the circumstances, I find that the respondent has failed to justify the dismissal of the complainant and therefore his claim must succeed.

Section 7 of the Unfair Dismissals Act, 1977, provides

S7(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

In the circumstances of this case, I find the most appropriate remedy is compensation. The Complainant was not available for work until the 11th March 2019 and the offer of reinstatement was made on the 4th April 2019 therefore I estimate that the Complainant was at a loss of his wages for approximately four weeks and I decide that the Respondent is to pay him compensation of €3,784.00. As this award is compensation for loss of earnings, it is subject to the normal statutory deduction.

In relation to the complaint pursuant to the Minimum Notice and Terms of Employment Act, 1973, in lieu of the finding that the Complainant was unfairly dismissed, I find that the Complainant was not given any notice of termination of his employment and he was not paid in lieu of his notice. I therefore decide that the Respondent is to pay him compensation of €1,892.00, equivalent to two weeks pay. In accordance with section 210 of the Taxes Consolidation Act 1997, this award is exempt from statutory deductions.

I find that the Complaint (CA-00027148-001) made pursuant to Section 8 of the Unfair Dismissals Acts, 1977, succeeds and find that the Respondent is to pay the sum of €3,784.00 to the Complainant.

I find that the Complaint (CA-00027148-002) made pursuant to Section 11 of the Minimum Notice & Terms of Employment Act, 1973, succeeds and find that the Respondent is to pay the sum of €1,892.00 to the Complainant.

Unfair dismissal - resignation