Complainant

Respondent

Parties

Mark  Keane

Zns Steel Limited Zns Steel Limited

Representatives

Setanta Landers

Nicola Dowling Williams 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-00041981-001

14/01/2021

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

CA-00041981-002

14/01/2021

The complainant was employed as a metal fabricator with the respondent from the 1.02.2015 to the 2.11.2020.He submitted that he was unfairly dismissed by the respondent on the 2.11.202.He further submitted that he was never issued with written terms and conditions of employment in accordance with the provisions of Section 3 of the Terms of Employment (Information) Act 1994.The respondent denied that the complainant was dismissed and submitted that the employment came to an end owing to the resignation of the complainant.The respondent accepted that the complainant was not furnished with a written statement of his terms and conditions of employment.

The complainant’s representative submitted as follows :

SUBMISSIONS ON BEHALF OF MR. MARK KEANE

1. Introduction

1.1. The Complainant has brought his complaint under the Unfair Dismissals Act 1977 and the Terms and Conditions of Employment Act. He alleges he was unfairly dismissed pursuant to the unfair dismissals act.

1.2. A copy of the Complainant’s complaint to the Workplace Relations Commissions is attached

2. Factual Background/Summary of the Evidence

2.1. The complainant began working with the respondent employer in or around 2015. ZNS Steel was incorporated in the CRO in April 2019 and it is believed by the respondents employment transferred from John Mills to ZNS Steel at this time.

2.2. The complainants salary was € 600 per week.

2.3. It is admitted by the respondent that he was not furnished with a statement of his terms and

conditions of employment.

2.4. He has at least 12 months service with ZNS Steel and taken together he had over five years service with the respondent employer.

2.5. The complainant commenced his employment as a metal fabricator in February 2015.

2.6. The complainant had an altercation on site on 13 July 2021 with a facilities manager who had

criticized the complainant for not wearing a face mask. As a consequence, the complainant was

removed from the site when he refused to apologize for the incident.

2.7. The complaints position was advertised and a replacement was hired. After this hire we are

instructed the complainant was contacted by telephone on 24 October and informed that he was

terminated.

2.8. Mr Mills sent our client an email on Wednesday October 28 2020 setting out that following a

phone conversation he understands that our client will be resigning from his position with ZNS

Steel Limited on Friday 30 October 2021.

2.9. The complainant responded on 28 October 2020 to say that this was inaccurate and under no

circumstances had he resigned his position and he set out that regarding the phone conversation on Saturday 24 October 2020 that he was informed that his contract was terminated without any

reasonable excuse and without any prior warning. Further that he was only given one weeks notice.

A copy of this email is attached .

2.10. A letter was sent to the complainant on 2 November 2020. A copy of this letter is attached .

2.11. This letter appears to accept in the penultimate paragraph that our client was dismissed.

“I accept that you were given one weeks’ notice of the termination in circumstances where you

were entitled to two weeks notice”

If our client resigned by telephone on 24 October 2021- how was he given notice of the termination.

This letter is a written expression of the true position- that our client was dismissed and terminated.

2.12. This letter further sets out that there was no issue with our client’s work quality

2.13.The question before the adjudicator is not the incident of 13 July but whether the Adjudication Officer is satisfied thathe Complainant resigned or was dismissed.

2.13.2. If he was dismissed whether that was procedurally fair.

3. Law

3.1. Burden of Proof

3.1.1. The fact of whether the complainant resigned (as submitted by the respondent) or was

dismissed (as submitted by the complainant) is a question for the Adjudicator on the basis

of the evidence before them.

3.1.2. It is submitted that there is no evidence on the face of the record to show the complainant

resigned.

3.1.3. As opposed to that there is ample physical evidence to show that the  complainant was

dismissed.

3.1.3.1. Email of 28 October asserting that the complainant would be taken as dismissed.

3.1.3.2. Letter of 2 November 2020 indicating that our client was entitled to notice

3.1.3.3. Payment of notice period

3.1.4. We submit that the evidence points to a dismissal and thus burden of proof is on the

respondent to show that the termination followed procedure and was fair.

3.1.5. In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an

employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless

having regard to all circumstances, there were substantial grounds for justifying the

dismissal”.

3.2. Lack of Fair Procedures

3.2.1. In determination UDD2128 the Labour Court considered a case where a respondent did not

carry out any procedure in relation to a dismissal and where the decision to dismiss was taken

unilaterally without any discussion with the complainant at all.

3.2.2.The Court set out

The Court takes into account the provisions of S.I. No. 146/2000 - Industrial Relations Act,

1990 (Code of Practice on Grievance and Disciplinary Procedures) which emphasises the

importance of ensuring that an employee is aware of any disciplinary procedure which is

initiated in respect of him or her and to know any case being made against him or her and to

have a fair opportunity to respond to any such case.

The extensive jurisprudence of this Court and the Employment Appeals Tribunal is to the effect

that an employer contemplating disciplinary sanction against an employee is obliged to ensure

the observance of fair procedure and natural justice before making a decision in relation to

the matter.

In the within matter, despite the existence of a detailed disciplinary procedure which had been

made known to the Appellant at the commencement of his employment, no procedure at all

was followed and the decision to dismiss was taken without engagement with the employee. In

addition, the Appellant was given no right to appeal his dismissal.

It may or may not be significant that the Respondent was of the understanding that, at the date

of his dismissal, the Appellant did not enjoy the protection of the Act.

The Court has concluded that, in the absence of the operation of a fair procedure or any

procedure at all in dismissing the Appellant, the Respondent has failed to discharge the burden

resting upon it to establish that the dismissal was fair and that the dismissal was unfair as a

result.

The Court has concluded that, having regard to circumstances of the matter, the appropriate

redress is compensation.

3.2.3. It is submitted that logic is applicable in this case where the complainant was not given any

opportunity to engage in the decision to dismiss him.

3.3. Termination for Misconduct

3.3.1. In the case of Frizelle v New Ross Credit Union Limited 1997 IE HC137, Flood J provided

a list of premises which must be established to support an employer’s decision to terminate employment for misconduct.

3.3.2. The complaint must be a bona fide complaint unrelated to any other agenda of the

employer/respondent.

3.3.3. Where the individual(s) making the complaint is a person of or body of

intermediate authority, it should state the complaint factually, clearly and fairly

without any innuendo or hidden inference or conclusion.

3.3.4. the employee should be interviewed and his or her version of shared and furnished

to a deciding authority contemporaneously with the complaint and again without

comment.

3.3.5. The decision of the deciding authority should be based on the balance of

probabilities flowing from the factual evidence and in light of the explanation

offered.

3.3.6. the actual decision as to whether a dismissal should follow should be a decision

proportionate to the gravity of the complaint and of the gravity an effect of the

dismissal on the employee.

3.3.7. None of those procedures were followed.

3.4. In Donnelly v Arklow Pottery ltd UD 572/1990 where the EAT held that for a “last straw

dismissal” there must be a blameworthy act on behalf of the employee established to the

satisfaction of the employer judged by the standard which incorporate;

3.4.1. Employer belief of misconduct

3.4.2. Belief to be sustained by evidence on the balance of probabilities. Investigation be

reasonably full and fair, judged by a reasonable employer acting in a bona fides way.

3.4.3. Placing the accused on notice of the allegation and giving to the employee a reasonable

opportunity to defend himself and such representation as may be reasonable having regard to

procedure, agreements and the realities of good industrial relations.

3.4.4. In the current set of circumstances, the employee was given no opportunity to engage with

the employer.

3.4.5. Secondly the complainant was not at any time, given a reasonable opportunity to defend

himself having none of the relevant material gathered lawfully or put before him properly or

at all.

3.5. Reasonableness of decision

3.5.1. In the case of Looney and Co Limited v Looney UD 843/1984 the Employment Appeals

Tribunal (‘EAT’) held that its responsibility is to consider against the facts what a reasonable

employer in his position and circumstances at that time would have done and decided and to

set this up as a standard against which the employer’s actions and decisions are to be judged.

The EAT identified that relevant considerations in assessing the employer’s reasonableness

can include the following:

3.5.2. Whether the employee’s behaviour was deliberate

3.5.3. Whether the employer delayed its investigation

3.5.4. Whether the employee attempted to cover up the conduct, or denied it, or attempted to

change his story during the employer’s investigation

3.5.5. Whether the employer’s rules expressed in the contract of employment or otherwise adverted to the wrong in question so that the employee knew what he was doing was a disciplinary measure

3.5.6. Whether the employee was able to explain his behaviour and

3.5.7. Whether the employee did not immediately refuse an allegation of dishonesty when put to

him by his employer.

3.6. Objective Standard to be applied

3.6.1. Another similar case is that of Bunyan v United Dominion Trust [1982] ILRM 224 in which

the EAT endorsed the view that:

3.6.2. “the fairness or unfairness of dismissal is to be judged by the objective standard of the way

in which a reasonable employer in those circumstances in that line of business would have

behaved. The Tribunal therefore does not decide the question whether or not, on the

evidence before it, the employee should have been dismissed. The decision has been taken,

and our function is to test such decision against what we consider the reasonable employer

would have done and /or concluded”.

3.6.3. As to whether there were substantial grounds for our client’s dismissal it is submitted, the

applicable legal test is the “band of reasonable responses” test, as comprehensively set out

by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the

High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly

(2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to

establish that there were substantial grounds justifying the dismissal and that it resulted

wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct

of the employee or that there were other substantial grounds justifying the dismissal.

Section 6(7) makes clear that the court may have regard to the reasonableness of the

employer's conduct in relation to the dismissal. That is however not to say that the court

or other relevant body may substitute its own judgment as to whether the dismissal was

reasonable for that of the employer. The question rather is whether the decision to dismiss

is within the range of reasonable responses of a reasonable employer to the conduct concerned –

see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

3.6.4. We find the decision to dismiss our client, after securing another person for the role

unreasonable and in all the circumstances not in accordance with fair procedures, or the

applicable law.

3.6.5. The incident was not investigated by the respondent employer and no mitigation is put

forward to justify the termination but rather is the respondent employers submission that

the complainant resigned, which is expressly denied by the complainant.

3.6.6. It is not credible in the circumstances to submit that our client resigned in July and yet

waited until October until the employer had secured his replacement to crystalise that

resignation.

3.6.7. What is much more credible it is submitted that the respondent employer replaced the

incumbent complainant and then manufactured a narrative to say that he has resigned orally

be telephone.

3.6.8. It is submitted that the complainant suffered no prejudice by the lack of investigation. This

cannot be so where the respondent employer terminated the employee without any

investigation

3.6.9. The employer is now seeking to call evidence on behalf of the incident of 13 July 2020 to

somehow justify the respondent employers position. The employer cannot use the WRC as

a mechanism to retrospectively carry out an investigation which it refused to do at the time

to somehow mitigate its behaviours.

3.6.10. Either

3.6.10.1. the complainant resigned, in which case the incident of 13 July is irrelevant or

3.6.10.2. he was dismissed, in which case the incident of 13 July was only relevant at the time

to allow the employer come to a decision to see if it could justify the dismissal.

3.6.11. As no investigation, or disciplinary process or other sanction other than dismissal was either put forward or processed at the time the respondent employer is estopped from raising any

argument by putting forward a defence to assert the decision was appropriate or rational as

it now appears to seek to do.

3.7. Client Record

3.7.1. Mr Mark Keane had an unblemished performance and disciplinary record with the respondent employer.

4. Conclusion

4.1. The complainant denies he resigned.

4.2. There is no written evidence that the complainant resigned.

4.3. There is written evidence that the complainant was terminated and given notice and paid notice.

4.4. The burden of proof is on the respondent employer to show the complainant had resigned which is expressly denied.

4.5. The burden of proof is on the respondent employer to show the dismissal was fair.

4.6. No investigation or fair procedures were advanced prior to the dismissal.

4.7. The respondent employer cannot seek to advance two conflicting defences;

4.7.1. To say that the complainant resigned

4.7.2. To examine the incident of 3 July 2020 retrospectively to mitigate its position when it

refrained to do so at the time

4.8. The decision to dismiss the complainant did not follow proper procedures, was unreasonable, not appropriate, and not grounded on any disclosed breach of contract, or law.

4

.9. Even if the Adjudicator was minded that the employer’s approach to this matter was substantially fair there can be no doubt but that it was procedurally unfair.

4.10.The claim in relation to the terms of information act appears accepted in that the complainant did not receive a contract or terms and conditions of employment.

4.11. Our client reserves his rights to make further submissions at the hearing as required.

5. Mitigation of Losses

5.1. Our client has since taken up employment as a metal fabricator in November 2020. Fuller details will be furnished at the hearing.

The complainant’s representative was adamant that there was no written evidence of the complainant having resigned ;it was submitted that there was no gap in his employment following the incident at issue  and no transfer of employment.

In his direct evidence the complainant stated  that he did not resign and that prior to the contact by the respondent on the 24th.October 2020 there had been no discussion with him about the termination of his employment. The respondent told him that he had found someone to employ and “that was it”. The respondent had followed up with an email on the 28th.October 2020  to the complainant advising that he understood the complainant would be resigning from his position on the 30th.October 2021- the complainant replied  by email stating that he had not resigned  and that his contract of employment had been terminated  without reasonable excuse or prior warning. The complainant advised that the masks issued to them in July were falling apart because of sweat and heat and he pointed out to the Facilities Manager that his mask was not on properly.He confirmed that he walked out and handed back his badge .The complainant advised that he never said he resigned.

Under cross examination the complainant confirmed that an altercation had taken place about mask wearing with the facilities manager  on the 13th.July 2020– the complainant said his paper mask was destroyed .He handed his badge to the facilities manager who asked him for it in response to the row.The complainant said he left the building and went outside .The complainant   stated that he was never asked to apologise. The complainant denied that he was aware that  being barred from the premises  would have a significant impact on his employer. The complainant stated that the following morning Mr.JM asked him to apologise and he replied no ; that the man had been ill-mannered towards him and consequently he saw no reason to apologise. The complainant stated he did not accept that by refraining from apologising that it would have an impact on the respondent’s business  .He indicated to Mr.JM that if he wanted he could get a replacement for the complainant and he would continue on other work.He accepted that he told Mr.JM that he would continue doing  work at other sites  and MR.JM could get someone to do the other work.When asked if  he knew that the job was advertised the complainant responded that nothing was ever mentioned  about the row  from the 14th.July 2020 until he got the phone call from Mr.JM on the 24th.October.When asked how Mr.JM would not understand that he had not resigned the complainant replied that he continued to work on the other sites except for the site where the row had happened.The complainant stated he was shocked when he was advised of the termination of his employment and he responded that he had never resigned .The complainant stated Mr.JM told him he had no rights , that he would give him 2 weeks notice and a heated exchange ensued.The complainant stated that he did not accept that Mr.JM understood he had resigned – the complainant asserted that he had resigned from work at the Adsil site  only. The complainant stated  that when he was asked to apologise he was never told he would loose his job.The complainant accepted that he was not asked by Mr.JM to resign. He advised that Mr.JM would continue working on  that site and I would do other work.The complainant accepted that JM was surprised when he denied that he had resigned.

The complainant confirmed he got a new job 2 weeks later .When asked if he requested to stay on in the job , the complainant replied that he knew Mr.J.M. had made his mind up.The claimant agreed  he had not sought to source alternative work .He secured alternative employment on the 17th.Nov. 2020. The complainant reiterated that he told JM that he could go back and work on  his own or get someone to do the amazon work.He stated Mr.JM never responded.

In summing up the complainant’s representative submitted that the events of July 2020 were a red herring.There was no evidence of the complainant having resigned and no letter of resignation. There were other sites and the ban imposed by the contractor was a site specific ban. It was submitted that things could have been done differently – the complainant was entitled to fair procedures – even if there had been a resignation , the employer should have asked for a letter. The ambiguity was caused by the actions of the  employer .

The respondent’s representative submitted as follows :

 A. BACKGROUND TO EMPLOYMENT

The Complainant was engaged as a Metal Fabricator by the Respondent Employer on the 17th of September 2018 having previously worked for the director/sole shareholder John Mills (then a sole trader) at an earlier date [16/02/2015 – 20/04/2018]. The Respondent Employer is a limited liability company in the business of steel fabrication working primarily at the ADSIL Dub site for a client of the main contractor Collen Construction which provides 70-80% of the Respondent Employers’ steel fabrication work. The Complainant left the employment of John Mills on the first occasion because he didn’t like the work on the ADSIL Dub site. The Respondent Employer was satisfied with the quality of the Complainant’s work however, an incident occurred at the ADSIL Dub site on the 13th July 2020 which caused the Complainant to resign his employment with the company.

It is accepted that the Respondent Employer did not furnish the Complainant with a written statement of the Complainant’s terms and conditions of employment as required under Section 3 of the Terms of Terms of Employment (Information) Act, 1994.

B. BACKGROUND TO DISPUTE

The Complainant was working with John Mills in the data hall at the ADSIL Dub site on the 13th of July 2020 when they left the data hall to get a drink of water. It was very hot in the data hall. When the Complainant and John Mills left the data hall, they met the Facilities Manager in the corridor. The Facilities Manager asked them where their masks were as they were walking towards the water cooler. Both the Complainant and John Mills explained where they were working. The Facilities Manager had his mask on but it was down around his chin. The Complainant and John Mills had removed their masks. The Facilities Manager cautioned both to wear the mask. Both the Complainant and John Mills pointed out his own mask was low on his face. The Facilities Manager told them to get the water and put the masks back on. As they were walking away, the Facilities Manager asked them where they were working. The Complainant retorted “we were working in the fucking data hall on top of the crah units”. The Facilities Manager asked for the Complainant’s name and to see his badge. The Complainant took off his badge and threw it at the Facilities Manager. The Complainant was removed from the site by the Facilities Manager who also removed further access to the site. The following day, the Respondent Employer received a letter from the main contractor to advise that the Complainant had been removed from the site.

The Respondent Employer got the name and number for the Facilities Manager and rang him to apologise for what happened. The Facilities Manager indicated that if the Complainant could apologise for the incident, he could return to the site and the incident would be forgotten about. The following morning, the Complainant was asked by the Respondent Employer to apologise for the incident, however he refused to apologise. The Respondent Employer made it clear to the Complainant that if he didn’t apologise, he could lose the sub-contract managed by Collen Construction. The Complainant refused to apologise but indicated to the Respondent Employer that he would stay on in the position until the Respondent Employer found a replacement. The decision to resign was not prompted by anything the Respondent Employer said but the Complainant came up with this solution of his own volition.

The Respondent Employer understood at that time the Complainant had resigned his position and resolved to source a replacement for the Complainant’s position. The Complainant did not return to any ADSIL Dub site after the 13th July 2020 and his work had to be undertaken by labourers supplied by the main contractor. He undertook some other ancillary work for the Respondent Employer between the 13th July 2020 and the day his notice expired on the 2nd November 2020. At the time of the incident and at the time of writing 70-80% of the Respondent Employers’ steel fabrication work was being carried out at the ADSIL Dub site. The Respondent Employer advertised the position online.

On the 24th October 2020, the Respondent Employer found a suitable replacement for the Complainant. The Respondent Employer rang the Complainant to tell him he had sourced another employee for the work and indicated he could finish up the following Friday. The Complainant resiled from the position previously held out and indicated he had not resigned. The Respondent followed up this conversation with an email to the Complainant on the 28th October 2020 to which the Complainant responded, refuting the statement that he had resigned his position.

The Respondent Employer formally wrote to the Complainant on the 2nd November 2020  setting out the position. The Complainant submitted a Complaint to the Workplace Relations Commission some two months later on the 14th January 2021.

The Respondent Employer will call the following witnesses (subject to their availability) in respect of the incident which occurred on the 13th July 2020;

1. John Mills

2. Main Contractor Supervisor – David Jashi

3. Facilities Manager – James Kirwan

C. SUMMARY OF RESPONDENT EMPLOYER’S CASE

i                       i. Terms of Employment (Information) Act, 1994

The Respondent acknowledges he failed to give the Complainant a written statement of his terms and conditions of employment during the course of his employment however, the Complainant was not in any way prejudiced by the failure to furnish a written statement of his terms and conditions of employment. He had returned to the Respondent employer’s employment having worked for John Mills’ previously and did not raise it as an issue during the course of his employment.

No submission has been made to the WRC and the Complainant is unlikely to produce any evidence to show that the acts/omissions referred to have had any significance for him or caused him any detriment during the period of him employment with the Respondent Employer. Furthermore, there is no evidence to suggest that the Complainant raised any grievance or concerns about these matters at any time during the course of his employment. The Respondent Employer did not purport to discipline, threaten or sanction the Complainant for the incident at the ADSIL Dub site therefore the contraventions complained of had no practical consequence for the Complainant. The Complainant herein suffered no adverse consequences of any materiality as a result of those contraventions upon which his claim to compensation is grounded and therefore falls to be considered within the Supreme Court’s decision in Monaghan UDC v Alf-a-Bet Publications Ltd. [1980] I.L.R.M. 64 in respect of the de minimis rule.

Ii. Unfair Dismissals Act 1977 as amended

The fact of dismissal is in dispute. It is submitted on behalf of the Respondent Employer that the Complainant’s employment came to an end by reason of resignation and it is denied the Complainant was unfairly dismissed as alleged. The Complainant was not sanctioned or disciplined for insubordination following the Amazon incident. The request of the Respondent Employer for the Complainant to apologise to the Facilities Manager was entirely appropriate in circumstances where;

▪ The Complainant had failed to follow the Health and Safety requirements of the main contractor, Coleen Construction and the end user Amazon on the 13th of July 2021 during Phase I of the Pandemic.

▪ The Complainant had behaved in an offensive and dismissive manner to the Facilities Manager;

▪ The Respondent Employer’s business and to a significant extent, the Complainant’s employment was dependent on the work being subcontracted by Colleen Construction at the ADSIL Dub site.

Following the incident on the 13th of July 2020, the Complainant approached the Respondent Employer and indicated he would be resigning his position with the Respondent Employer on account of the fact he was not permitted to return to the ADSIL Dub site. The Complainant indicated to the Respondent that he would stay on with the company working on non-Amazon work until a replacement could be sourced. The Complainant sought to resile from this position when the Respondent Employer had successfully recruited another steel fabricator to take his place.

The Respondent Employer took no issue with the quality of the work undertaken by the Complainant and the incident which took place on the 13th July 2020 was entirely regrettable given the Complainant could have returned to the ADSIL Dub site by apologising to the Facilities Manager.

D. RELIEFS

The Complainant seeks to be compensated in circumstances where his employment came to an end by reason of resignation. The Complainant is put on full proof in respect of his loss of earnings / financial loss since the last worked for the Respondent Employer and the Respondent seeks the vouching documentation sought in letter dated 8th February 2021 to the Complainant’s legal advisors Tully Rinckey .The Respondent Employer seeks documentary evidence that the Complainant has taken all reasonable steps to mitigate his loss which the WRC is obliged to take into account, as per s. 7(2)(c) of the Acts.

Furthermore, it is submitted on behalf of the Respondent Employer that regard must be had to the reasonableness or otherwise of the Complainants’ behaviour in bringing his employment to an end following the incident on the 13th July 2020. In considering whether it is appropriate to compensate the Complainant in the circumstances, the WRC is required to take account of the extent to which the purported dismissal is attributable to the Complainant’s actions per Section 7(2)(f) of the Unfair Dismissals Acts 1977 as amended.

The Respondent Employer asks that the WRC does not compensate the Complainant in respect of either of the claims submitted.

In his direct evidence the respondent stated that 70-80% of their Metal Fabrication work was based at the Adsil site n Dublin.Mr.JM recounted the events leading up to the mask dispute – he stated that when the facilities manager approached himself and the complainant  , the complainant took his badge off and threw it at the facilities manager. He said that he tided up the tools – the complainant had been told by the facilities manager that he had to leave the site.The respondent phoned the contractor and was advised that the complainant could  return if he apologised.Mr.JM relayed this to the complainant the following morning and told him if he didn’t apologise that they could loose their work with Amazon .The respondent asserted that the complainant stated he would not apologise and told him that he would stay on until the respondent found a replacement. The respondent stated that the complainants assertions that he would do other work and work on other jobs was not true .The respondent was adamant that the complainant was staying until he could find someone to replace him(the complainant).Mr.JM said when he advertised the job , there was a poor response. He then recounted the ensuing exchanges with the complainant from the 24thOctober onwards – he said things got really tense between himself and the complainant who put him on notice that he would take legal action against him.

Mr.JM said the complainant at no point sought to remain – he said the complainant indicated he would leave when he found a replacement for him.Mr.JM said they were a small company with enough work for only 2 employees.Mr.JM did not know if it was possible that the complainant had misunderstood him.

Under cross examination it was put to Mr.JM that there were no threats contained in the  incident report form dated the 14.07.2020 , Mr.JM replied  that this was a 2 man company  and we could not get on to any of the amazon sites. When asked why he did not request the complainant for an email to confirm their understanding that the complainant would work until a replacement was found , Mr.JM replied “I took him at his word”.Mr.JM stated that he had no issue with the complainant’s work quality .It was put to the respondent that he could have gone after the complainant for insubordination .He stated that the complainant continued to work for another 4-5 months .The respondent stated that the complainant could possibly have continued in the work shop and that looking back things could have been handled differently .He asserted that the complainant’s work was definitely coming to an end by the end of October.

In summing up the respondent’s representative stated the facts were clear – the complainant clearly indicated an intent to resign – the complainant remained on and admitted this to be the case- Mr.JM should have asked for his resignation .He was faced with the complainant saying he was taking legal action .It was submitted that the delay in advertising the post did not change the fact that the respondent had no further work and does not change the fact of the complainant’s resignation.It was submitted that it was reasonable for Mr.JM to ask the complainant to apologise.

Terms of Employment (Information)Act 1994

The respondent conceded that the claimant was not issued with written terms and conditions of employment in accordance with Section 3 of the Act  and consequently I am upholding the complaint.

Unfair Dismissals Acts 197-2015.

I have reviewed the evidence presented at the hearing and noted the submissions of the parties and the authorities relied upon.I have concluded that the claimant was unfairly dismissed on the basis of the following findings :

The language and terminology used in the exchanges between the complainant and Mr.JM  was ambiguous to  say the least and no time frame for the alleged resignation was set or indeed agreed.

No written evidence of a resignation was presented .

The claimant was not furnished with written notice of his terms and conditions of employment .

In his direct evidence the respondent acknowledged that the matter could have been better handled in hindsight.

No plausible explanation was offered for the delay from the 14th.July 2020 to early October 2020 in advertising for a replacement – in these circumstances and given the ambiguous nature of the exchanges between both parties , it was not unreasonable for the complainant to assume his  continued employment was secure.

Accordingly , I have concluded that the complainant was dismissed – the termination of employment occurred without an  investigation  and was devoid of compliance with any fair procedures  or natural justice.I am satisfied that this finding  is consistent with provisions of Kwik-Fit (GB)Ltd -v- Lineham 1991 IRLR156 as well as Labour Court Determination UDD2128.

Resignation/Dismissal