FULL RECOMMENDATION
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005 PARTIES : BOYLESPORTS UNLIMITED COMPANY (REPRESENTED BY COLLIER BRODERICK MANAGEMENT CONSULTANTS - AND - MR PATRICK MARKEY (REPRESENTED BY JOHN TEMPLE B.L., INSTRUCTED BY RUADHÁIN MAC AODHÁIN DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No:ADJ-00015017 CA-00019376-002. This is an appeal by Mr Patrick Markey (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00015017/CA-00019376-002, dated 6 August 2019) under the Minimum Notice and Terms of Employment Act 1973 (‘the Act’). Notice of Appeal was received by the Court on 12 September 2019. The Court heard the appeal in Dublin on 10 December 2020. The within appeal was heard in conjunction with the Complainant’s appeal under the Unfair Dismissals Act 1977 (UD/19/190). The Factual Matrix The Complainant was employed by the Respondent as an IT Helpdesk Administrator from 18 August 2015 until he purportedly resigned his employment by email dated 28 November 2017. The Complainant submits that he was coerced into submitting his written resignation on that date but that he was, in reality, unfairly dismissed by Boylesports Unlimited Company (‘the Respondent’). The Complainant’s starting salary was €21,000.00 per annum. This increased to €23,000.00 per annum on the completion of his probationary period on 30 May 2016. The Complainant undertook on-call work, including on-call outside of normal working hours, from June 2016 onwards, following a training period with a senior member of the Respondent’s IT helpdesk services team. With effect from 11 August 2017, the Complainant’s direct line manager was Mr Cahal Marron, Service Desk Manager. Mr Marron, in turn, reported to Mr Sean Convery, Chief Technology Officer. On 28 November 2017, the Complainant was scheduled to work between 1.30 pm and 10.00 pm. During his shift on that date, Mr Marron raised two concerns with the Complainant about his previous on-call claims. The first concerned a claim for €100.00 for a Data Warehouse (‘DW3’) issue. Mr Marron accepted the Complainant’s explanation for this claim but explained his interpretation of how claims in relation to this matter should be made going forward. Both parties agreed to draw a line under this issue. The second issue raised by Mr Marron concerned the claims made by the Complainant for on-call texts and telephone calls. Mr Marron told the Complainant that his understanding was that it was not permissible to seek payment in respect of texts sent while on call. Mr Marron asked the Complainant to check the number of on-call texts he had requested payment for. The Complainant checked his records and confirmed that he had sought payment for approximately 28 texts. The Complainant stated that he was willing to reimburse the Respondent for the payments he had received for those texts as it had been a genuine mistake on his part. The total value of the claimed payments was approximately €560.00. Mr Marron’s and the Complainant’s evidence diverges in relation to what occurred from this point onwards. The Complainant’s evidence to the Court is that Mr Marron discontinued their meeting as he had to confer with Mr Convery and that Mr Marron resumed the meeting some time later to tell the Complainant that he had been told by Mr Convery that he wanted the Complainant gone as he (the Complainant) had broken trust. According to the Complainant, Mr Marron offered him two options at this point: either Mr Marron would undertake an investigation into the matter of on-call claims made by the Complainant or the Complainant could choose to resign and receive a month’s pay and a reference. The Complainant’s evidence was that Mr Marron prefaced the first option by saying, “It’s not looking good for you”. The Complainant took a few minutes, he says, to ring his wife before making a decision. He then told Mr Marron that he would take up his suggestion to resign. According to the Complainant, Mr Marron initially instructed him to email him his resignation letter but then changed his mind and told him to print it off there and then. Mr Marron, he says, proceeded to dictate the first sentence of the resignation email and thereafter escorted him to the door of the Respondent’s building. Mr Marron denies that he conferred with Mr Convery in relation to the issue that had arisen about the payment claims made by the Complainant for on-call texts. Mr Convery, who also gave evidence at the within hearing, corroborated this. According to Mr Marron, he told the Complainant that he would have to investigate the over-payment issue and in response the Complainant immediately stated that he would prefer to resign rather than face an investigation. Mr Marron’s evidence is that he then told the Complainant that he would have to provide his resignation in writing and that the Complainant then proceeded to type up and print off his resignation letter without any input from Mr Marron. Mr Marron accepts he escorted the Complainant to the front door but he says he did so because it was necessary to use a company fob to exit the building and the Complainant had handed his over with his resignation letter. It is common case that Mr Marron completed the remainder of the Complainant’s shift on the helpdesk (until 10.00 pm) and then called to the Complainant’s home at approximately 10.30 pm that night in order to collect the Respondent’s IT equipment which the Complainant had for on-call use. The Complainant said that he had spoken at length to his wife and brother about what had happened that day in the office and told Mr Marron when he called to his home that night that he (the Complainant) had decided that he had made the wrong choice earlier that day and that he wanted to look into the procedures relating to an investigation. He told the Court that Mr Marron assured him that he had, in fact, done the right thing and, as he had two years’ IT experience under his belt at that stage he would have no difficulty getting alternative employment. Ms Jackie Lawlor, the Respondent’s HR Manager, gave the following evidence to the Court. She said when she attended the office on 29 November 2017 she heard that the Complainant had resigned his employment the previous evening. A copy of his resignation letter had been placed on her desk. Ms Lawlor told the Court that Mr Marron had conferred with her on 28 November 2017 after his initial meeting with the Complainant and had informed her of the apparent issue with the Complainant’s on-call claims. Ms Lawlor says she advised Mr Marron that the matter would have to be investigated and, if he recommended the matter be progressed to a disciplinary hearing, he would have no further involvement in the process (beyond the investigation). She says she told Mr Marron not to discuss the matter with Mr Convery as ‘he couldn’t be tainted’. Ms Lawlor then recounted that she telephoned the Complainant on the morning of 29 November 2017 as she had known him personally and had sat with him from time to time in the canteen. Ms Lawlor’s recollection is that the Complainant said to her on the call that he had ‘f****d up’. She says she went on to explain to the Complainant that it would not have been Mr Marron’s role to find the Complainant guilty or otherwise and she tried to encourage him to submit to the investigation process. Ms Lawlor was very firm in her recollection that the Complainant did not tell her he had changed his mind about resigning. Under cross-examination, Ms Lawlor accepted that she didn’t consider telling the Complainant that the Respondent would refuse to accept his resignation. She said the Complainant had been adamant during their telephone conversation that he was finished with Boylesports. Finally, Mr Sean Convery gave evidence for the Respondent. He told the Court that Mr Marron had not discussed the Complainant with him on 28 November 2017 but the Mr Marron did advise him of the Complainant’s resignation the following morning. Mr Convery says he asked Mr Marron if he had consulted Human Resources and Mr Marron had assured him that he had done so. Submissions Mr Collier,Representativefor the Respondent, submits that Mr Marron acted reasonably on 28 November 2017 when he raised his concerns with the Complainant about the latter’s previous on-call claims. He further submits that the Complainant was neither asked by Mr Marron to resign nor coerced into so doing by Mr Marron and that the Complainant of his own volition had decided to resign rather face an investigation that may or may not have resulted in disciplinary action. In summary, the Respondent submits that the Complainant was not dismissed by the Respondent. Mr Temple BL for the Complainant submits that his client was dismissed in circumstances where his line manager relayed to him that a more senior manager in the business had stated that he wanted the Complainant gone from the business as he had broken trust by making fraudulent claims for on-call payments. Counsel further submits that his client was not afforded the benefit of representation or the opportunity to consult with an appropriately experienced person and he, therefore, panicked when presented by Mr Marron with the option of resigning and getting a month’s pay or facing an investigation the outcome of which, he reasonably believed, was predetermined against him. The fact that the Complainant’s initial decision to resign was a knee-jerk, panicked reaction is evidenced, Counsel submits, from the conversation that took place between the Complainant and Mr Marron later in the evening of 28 November 2017 when Mr Marron called to the Complainant’s home. At the point, he says, the Complainant made it clear that he regretted his rushed decision to resign and wished, instead, to be afforded the opportunity to have the issue of his on-call payment claims fully investigated by the Respondent. It is Counsel’s submission, that the Respondent – if not through Mr Marron, most certainly through Ms Lawlor, a very experienced HR professional – should have accepted that the Complainant’s rushed resignation was unsound and should have given him an opportunity to withdraw the resignation and have the allegations against him fairly and impartially investigated. Finally, Counsel asked the Court to note that the Complainant’s offer to repay any monies he claimed in error does not appear to have been considered at all by the Respondent. Discussion and Decision In UD/19/190, the Court found that the Complainant had not voluntarily resigned his employment on 28 November 2017 but rather had been unfairly dismissed on that date. As of the date of his dismissal he had accrued in excess of two years’ continuous service with the Respondent. He was accordingly entitled to two weeks’ notice under the Act or payment in lieu thereof. It is common case that the Respondent paid the Complainant an additional month’s salary on the termination of this employment. It follows that the within complaint under the Act of 1973 is not well-founded. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary. |
