Complainant

Respondent

Anonymised Parties

Delivery Driver

Floral Retailer

Representatives

none 

Niamh Walsh Martin A. Harvey & Co. Solicitors

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-00038524-001

05/07/2020

The Complainant worked for over two years as a delivery driver for the floral products section of the Respondent company on a part-time, irregular hours basis. The Complainant’s salary for 2019 was €6,180.20, a sum agreed by both parties. She is currently in receipt of €350.00 per week in Covid -19 payment. The Complainant submits that she understood that she was dismissed as result of not being offered work during a lay-off brought about by Covid-19 restrictions. The Respondent submits that the Complainant was not dismissed but was placed on temporary layoff only due to the Covid-19 Pandemic and remains on temporary layoff. As the fact of dismissal is in dispute the Complainant was asked to present her case at the onset of the hearing.

The Complainant submits that staff were laid off in March 2020 as a result of the Covid-19 restrictions. The Respondent set up a ‘What’s App’ chat group where work updates and staff rosters were posted. On 6th June 2020 the Complainant sent a text to the chat group enquiring as to when she could return to work. She submits that the administrator of the group, Ms X, informed the group that only two employees would be returning to work for that week - Ms X and another employee. The Complainant submits that on 11th June 2020 she noticed two missed calls from Ms X at 10.02 and 10.32 respectively. She asserts that she noticed these calls at 14.09 on the same day, which was near the closing time of the business and therefore she did not return the calls.

On 2nd July 2020 the Complainant enquired, in the chat group, as to why she was taken off the roster and received the following reply from Ms X ““Hi …., I tried to call you before but I could not get through to you so we got a new driver and [Respondent] is not busy yet. We will stay in touch any way. Sorry about that. We presumed you didn't want the job while you were on the Covid payment. We are fine for now, if you wish we can stay in touch and see what will happen later" The Complainant gave further evidence of the conversation ending with an assertion, by the Complainant, that she was disgusted with the way she was treated. She submits that her removal from the online roster, as well as the subsequent discussion with Ms X, led her to conclude that she had been unfairly dismissed.

The Complainant submitted her claim to the Workplace Relations Commission on 5th July 2020. She accepted in cross examination that she did not inform Revenue nor the Department of Social Protection about the termination of her employment.

On the issue of mitigation of loss, the Complainant submits that she is a qualified health care assistant and has received offers of work since the alleged dismissal took place. She asserts that she is awaiting the outcome of the present process before taking up any offers of work.

The Respondent operates an interior landscaping business, supplying interior plants for offices, hotels etc. The Complainant is employed as a driver. The Complainant carries out work for the floral delivery business and also carries out work for a related florist business. On 23rd March 2020, the Complainant and a number of her colleagues were placed on temporary layoff due to the imposition of Government restrictions and the nationwide lockdown requiring the Respondent and its related business to close and not trade.

On 6th June 2020 the Complainant sent a message to a ‘What's App’ group, used by the Respondent's employees for communicating rotas, wherein she asked when they were to return to work. Ms ‘X’ gave evidence that she replied and confirmed that the business was reopening on Monday 8th June 2020 with two members of staff only, for the first week, and after that if the businesses were busy other employees would be brought back.

Ms ‘X’ gave further evidence that on 11th June 2020 she phoned the Complainant twice to discuss her returning to work from temporary layoff and to tell her the hours that were available in her role as a driver. The telephone calls were not answered, and no further contact was received from the Complainant until 2nd July 2020. In the interim, a driver was urgently required for operational reasons and particularly in circumstances where the business was trying to recover from a significant period of closure. Ms ‘X’ gave evidence that she hired a casual driver.

On both 22nd June 2020 and 29th June 2020, rotas were posted on the ‘What's App’ by Ms ‘X’. No queries nor contact was received from the Complainant about her name not appearing on the rota nor about the fact that Ms ’X’ had attempted to contact her. As the Group was for roster purposes only, Ms ‘X’ removed the Complainant and the other employees who remained on lay off from the group, on 2nd July 2020. At this point a text message was received personally by Ms X from the Complainant querying why she was removed from the Group. Ms ‘X’ gave evidence that she communicated to the Complainant that she had attempted to contact her but could not reach her therefore a driver was engaged. Ms ‘X’’ stated that she presumed that the reason that the Claimant did not wish to return to work was because she was on the Covid payment. She said they could stay in touch and see what would happen. The Complainant said she was disgusted, and Ms ‘X’ stated that she was too. The Respondent submits that at no stage did Ms ‘X’ dismiss the Complainant and the content of the conversation demonstrates that the Complainant simply remained on temporary layoff.

The Complainant made no further contact with the Respondent and proceeded to submit a complaint to the Workplace Relations Commission on 5th July 2020, 3 days after the purported dismissal, claiming that she was unfairly dismissed. At no point in time did the Respondent tell the Complainant that she was dismissed, nor was her cessation of employment processed via payroll nor Revenue. The Complainant remains on the Respondent’s payroll and is noted as a suspended employee for payroll purposes in line with the fact that she is on temporary layoff. The Complainant made no attempt to clarify the matter with the Director of the Respondent company, Mr Y, who gave evidence that he was the sole person who would be expected to make a decision regarding the termination of an employment contract. He contends that neither he, nor any employee under his direction, dismissed the Complainant.

Respondent’s Legal Argument:

The Respondent relies on the definition of dismissal as contained in Section 1 of the Unfair Dismissals Act 1977-2015, as amended, to show that the circumstances as outlined above that a dismissal has not taken place.

The Respondent further relies on the text “Redmond on Dismissal Law” by Mr Desmond Ryan BL where the Respondent specifically refers to the following extract:

“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.”

In addition, the Respondent relies on the Labour Court case of Devaney v DNT Distribution Company Ltd UD 412/1993 where the Respondent submits that it confirms the fact that the intention of the employer is key and that the test is objective.

The Respondent concludes that the evidence in this case clearly demonstrates that there was no intention to bring the Complainant’s contract to any end. The Respondent contends that considering the circumstances, the plain reading of the text messages and the existing relationship between the parties, that no reasonable employee could have understood the Respondent’s intention to be that of dismissal.

This case pivots around the fundamental issue of whether an actual dismissal as defined by the Unfair Dismissals Acts 1977-2015 (the Act) has taken place. A complaint of unfair dismissal referred under Section 8 of the Act requires a dismissal to have taken place as a requirement by virtue of Section 6 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 places the burden of proof of 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 addition, the test is an objective one, as determined by the EAT in Devaney v DNT Distribution Company Ltd UD 412/1993, which was opened to me. On the test for deciphering the circumstances surrounding the words of an employer in a purported instance of dismissal, the Tribunal stated:

“…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 of 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.”

The words of Ms X as contained in an exchange of texts are relied upon by the Complainant as evidence of the alleged fact of this dismissal. A copy as submitted by the Complainant and verified by the Respondent reads:

Complainant: “Hi (X), I’m just wondering why I was deleted from the group text, is there a problem. Or is it that I’m not at work at this time

Ms X: Hi …, I tried to call you before, but I could not get through to you, so we got a new driver and (Respondent) is not busy yet. We will stay in touch anyway Sorry about that

Complainant: A new driver? Why, what was wrong with me.

Ms X: I was looking for you after we opened but there was no response from you, so we had to get somebody else. We were under terrible pressure because I was so so busy here like never before and I rang everyone that day, but nobody answered so I had no choice but get somebody else. You never texted me back, so we presumed you didn’t want the job while you were on the Covid payment. We are fine for now, if you wish we can stay in touch and see what will happen later.

Complainant: I’m disgusted to be honest

Ms X: And I was too.

The background that gives context to the above conversation is important. The Complainant, who was on temporary layoff and in receipt of the Covid-19 government payment, received two missed phone calls from Ms ‘X’ on 11 June 2020. The Respondent asserted that the purpose of the calls was to offer available work to the Complainant. The Complainant submitted no evidence to the contrary as to a reason for the calls. However, the Complainant did not follow up on the missed calls but instead enquired on as to why she was not allocated work in an online enquiry on 2nd July 2020, some three weeks later. Furthermore, evidence was given that the casual driver who was hired to take up the position of the Complainant, was in turn replaced by another casual driver. It is clear to me that such was the nature of the stop/start floral delivery business during a pandemic and that it was irrational for the Complainant to discern from the online conversation that she was dismissed, or indeed that the Respondent had behaved unreasonably in hiring a casual driver. The Complainant, for whatever reason, did not follow up on missed calls from the Respondent for over three weeks. Convincing evidence was given by both the Director and Accounts Manager of the Respondent company that it was clear to them that the Complainant was always, for the relevant time, a suspended employee i.e. on temporary layoff, and never dismissed.

The words of Ms X on 2ndJuly 2020 could never be construed, in any reasonable reading, as being a clear and unequivocal declaration of dismissal. The conversation might have ended fractiously but I cannot see how the contract was fractured in the same exchange. I am satisfied no dismissal took place within the meaning of the Act.

Having considered the submissions of both parties, and the evidence adduced at the hearing of this complaint, I am satisfied no dismissal took place within the meaning of the Act therefore the complaint is not well founded.

Unfair Dismissals Act, Fact of dismissal in dispute, Covid-19.