Complainant

Respondent

Parties

Michael  Fortune

 Jeff Watson t/a Clone Country House

Representatives

Robert Jacob of Jacob and Twomey Solicitors LLP

Stephen O’Sullivan B.L. instructed by Lise Tyndall of Niall T Cawley & 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-00035790-001

21/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00035790-002

21/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00035790-003

21/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00035790-004

21/04/2020

The complainant says he was unfairly dismissed, not issued with Terms of Employment, not paid for a period before his dismissal and did not receive any notice period payment when he was dismissed.

Summary of Respondent’s Case: The respondent says the complainant started employment for the respondent, a heritage guest house, on 15 January 2018. He undertook some work in the six months before that but it was on a casual self-employed basis. By agreement between the parties he worked different shifts and different weeks at €15 per hour. They accept his average weekly gross pay was €181.

On 19 February 2020 the complainant arrived for work at 7.00am, as requested by the respondent, and parked in an area which was away from the designated parking area, in a place he had been asked not to park in. The respondent requested him to move his car to the designated area but the complainant got very angry, refused to move his car and left the premises. There followed messages between them, in which the respondent said the complainant was suspended until he was willing to agree to park in the designated area. The guest house was closed for a few days. On 27 February the respondent asked the complainant if was available to work on the Friday and Saturday of that week. The complainant did not respond to this or other phone calls where the respondent was trying to allocate shifts. On 6 March the complainant responded and said he had been suspended. The respondent replied “you have never been suspended. You are an employee still on hourly wages. I trust you are then rejecting these shift offers….”. The complainant did not reply to arrange to work any shifts.

Arising from the Covi-19 pandemic the guest house was closed from 18 March 2020. Because of the closure the complainant was dismissed on 9 April 2020. The respondent took over the complainant’s duties himself and did not employ anyone in a similar role until September 2021. The respondent accepts the complainant is entitled to a redundancy payment arising from his dismissal. The respondent dismissed one other employee and laid off two others.

The respondent submits the complainant was dismissed for redundancy by reason of the Covid-19 pandemic.        

Summary of Complainant’s Case:  the complainant submits he was dismissed without good reason and without fair procedures on 9 April 2020. The dismissal occurred after the complainant was suspended without pay on 20 February 2020.

On 12 July 2019 there was an incident involving an adjacent property. The complainant was asked by the respondent to make a statement about the incident to An Garda Siochana. He did this but the working relationship between him and the respondent and his wife deteriorated after this incident.

In the summer of 2019 the complainant and his wife provided barbeques for the respondent’s guests. This resulted in mixed reactions from the respondent and his wife. The complainant felt his hours of work were threatened as a result of this.

On 14 October 2019 the complainant was instructed by the respondent that he was no longer permitted to park his vehicle where he had always parked it. This was close to a shed where all the tools he used were stored. The complainant agreed to this new arrangement but said he would have to park in the old spot if the assigned area was occupied and there an agreement between them that the complainant could park near the shed when the weather was poor. Despite this agreement the complainant submits he was repeatedly harassed by both the respondent and his wife about where he parked his vehicle.

The complainant agreed to start work early in the morning on 19 February 2020. It was raining when he arrived at 7am so he parked near the shed, where he would be working from. The respondent came out to remonstrate with the complainant and told him to move his car and when the complainant reminded of their agreement the respondent ordered him to go home.

The next day the respondent sent a text message to inform the complainant he was suspended. Two weeks later the respondent claimed the complainant had never been suspended.

On 9 April 2020 the respondent informed the complainant he had been removed from the payroll and the Guest House was closed due to Covid-19. The complainant submits he was dismissed without warning or any procedure whatsoever. Furthermore, there was no mention of redundancy.

Findings and Conclusions: the events between the complainant and the respondent have been presented very differently. However, what is clear is that following the parking dispute on the morning of 19 February 2020 there were a number of text messages between the respondent and the complainant. The respondent did suspend the complainant in a message on 20 February and said that he would remain suspended from work until he confirmed in writing his full compliance with the parking regulations. The complainant did not give any such confirmation. Shortly after, in the exchange of messages the complainant said, “Thank you for helping me make my final decision I am bringing you and your wife to the employment tribunal”.

Then, on 27 February, the respondent asked the complainant to let him know if he wanted to work Friday and Saturday that week. There was no mention of the suspension or the need to give an undertaking about where he should park. The complainant did not reply until 6 March when he reminded the respondent he had suspended him. The respondent replied that the complainant had never been suspended and the complainant was rejecting the opportunity to work because of his stance on the parking regulations.

I understand this to mean the respondent still expected the complainant to comply with the parking regulations before he could return to work. Furthermore, it is also clear from the correspondence that the complainant was not going to give confirmation that he would comply with the parking regulations. Thus, an impasse was reached that was never resolved.

The direct evidence of the complainant and the respondent given at the hearing is that the distances between the two parking areas was short and the complainant would have suffered very little inconvenience by complying. In these circumstances I consider the respondent was not being an unreasonable employer in asking the complainant to park in the designated area, for what he considered were good reasons. However, the complainant considered it unreasonable and unnecessary and for these reasons he chose, during exchange of messages on 19/20 February, not to confirm his agreement to park in the designated area at all times and therefore chose not to return to work.

The Covid-19 pandemic meant the Guest House was closed and brought the impasse to an end.

My conclusion is that the complainant was unwilling to give a written confirmation to comply with the parking regulations laid down by the respondent. By so doing he chose not to go back to work and did not engage meaningfully with the respondent when the offer of work came on 27 February. I find that the complainant had already decided he was never going to return to work for the respondent and had terminated his own employment. The respondent used the closure of the Guest House to end the complainant’s employment but in effect this had already occurred.

In circumstances where I found the complainant ended his employment of his own volition I conclude he was not dismissed and find the claim of unfair dismissal not to be well founded.

Summary of Complainant’s Case: the complainant submits he never provided with a statement of his terms of employment as required by the legislation.

Summary of Respondent’s Case: the respondent accepts the complainant was not provided with terms of employment in accordance with the legislation.   

Findings and Conclusions: the complainant did not receive terms of employment as required by the legislation. I find the claim to be well founded and award redress of four week’s pay; €724.

Summary of Complainant’s Case: the complainant submits he received no pay from the period after he was suspended on 19 February 2020 until he was dismissed on 9 April 2020. This amounts to 7 weeks and he should have received a total of €1,575.

He was dismissed on 9 April 2020, without any notice period. He was entitled to two weeks notice.

Summary of Respondent’s Case: the respondent submits the complainant chose not to work from 20 February 2020 until the guest house closed and therefore has no entitlement to be paid for this period.

The respondent accepts the complainant was entitled to two weeks minimum notice for which he was not paid.

Findings and Conclusions: as I have found the complainant chose not to work and terminated his own employment I found both claims not to be well founded.

CA-00035790-001 – Unfair Dismissal: for the reasons given above I find the complainant ended his employment of his own volition and find the claim of unfair dismissal is not well founded.

CA-00035790-002 – Terms of Employment: for the reasons given above I find the claim to be well founded and award redress of four week’s pay; €724.

CA-00035790-003 & 004 – Payment of Wages: for the reasons given above I find both claims to be not well founded.

Unfair dismissal – complainant left of own volition – not well founded.