Complainant

Respondent

Anonymised Parties

Apprentice Carpenter

Joinery Manufacturing Company

Representatives

none 

none 

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00037272-001

17/06/2020

The Employee commenced work with the Employer as an apprentice carpenter on 1 May 2018. He claims he was unfairly dismissed on 21 March 2020. The Employee worked a 40-hour week for gross pay of €273.91; net €271.89. The Employer denies the that there was a dismissal.

The Employee believes that he was unfairly dismissed by the Employer on 21 March 2020. At the time the company was temporarily closed due to Covid-19 and all of the employees were put on the 70% wage subsidy scheme.  A company ‘WhatsApp’ group was formed and if an employee agreed to the wage subsidy scheme they were asked to give a thumbs up ‘emoji’; if they did not agree they were asked to give a thumbs down emoji. The Employee gave a thumbs down because 70% of his wages would have equated to roughly €160 which was not a viable financial option for him.  he has a family for which he has to provide. After giving the thumbs down, he submits that he was removed from the group and informed that if he did not agree to this that there would be no job for him to return to when the company reopened after lockdown.

The Employee contacted the community welfare officer and they agreed to help him out during this time. He then informed the Manager that he was in a position to accept the wage subsidy scheme, contrary to his initial choice. The Employee contends that it was then that he had been told that there would not be enough work for him to go back to and he had been dismissed  via ‘WhatsApp’. He also submits that the Managing Director of the company promised him that a letter would follow from the Human Resources Department clarifying the Employees’ position, but he never received such a letter.    

The Employee asserts that only himself and a handful of other people were not taken back and that online adverts have been posted by the Employer seeking new employees.

The Employee took up employment as an apprentice carpenter with a new employer in July 2020 and is now in the process of starting up his own business. 

The Employer denies that it dismissed the employee.  The Employer submits that the Employee had been laid off due to the Covid lockdown and that it had every intention to re-employ him in July 2020 but that the Employee had instead taken up employment with another Employer.

The Employer said it set up a ‘WhatsApp’ group to determine whether employees would agree with coming to work under the Employment Wage Subsidy Scheme (EWSS) but that the Employee had declined and instead opted to apply for the Pandemic Unemployment Payment (PUP). The Employee subsequently found out that he was not entitled to the full latter payment. The Employee had changed his mind and re-applied for the EWSS scheme but in the meantime the Employer asserts that had it had already employed its full compliment and was not in a position to take the Employee back at that time.

The Employer submits that the Managing Director had personally contacted the Employee by text message and stating that there was no work for the next few months or so and wished him well. The Employer asserts that the wording of such a text suggests a temporary lay-off situation and did not signify dismissal.     

The fact of dismissal is at issue in this case. The Employer says that it communicated in a text to the Employee the temporary nature of the lay-off and that a letter would follow from the Human Resources Department. The Employer accepts that it did not send such a letter to the Employee. It was clear in this dispute that that the Employee and the Employer were on good personal terms and each did not significantly contradict the account given by both parties, which is unusual in itself. However, I discern from the reading of the text message at the hearing that there was an element of finality in the text message from the Employer to the Employee. Wishing someone well in the context of telling them that there is no work presently suggests an element of finality. The Covid-19 lockdown has had an effect on everyone, but It does  not absolve Employers from the responsibility of dealing in a proper manner when it comes  to lay-off and/or potential dismissal. Communicating by ‘WhatsApp’ and not issuing a promised formal letter signifies in itself that the Employer fell short of what a reasonable employer would have done in the circumstances.

It is clear that the Employer continued to trade and brought back the Employees who were willing to accept the EWSS during the Covid-19 crisis. The Employer likewise did not re-employ the Employee even though it is clear that had he given the thumbs up on ‘WhatsApp’ in late March 2020, he would have been re-employed and there would be no dispute. When the Employee re-considered his position and contacted the Managing Director, I find that he should have been re-employed.

After full consideration of both submissions in this case I find that the Employee had no option under the circumstances but to honestly believe that he had been dismissed and seek other work, which he did so in July 2020. I find that the Employer acted unfairly towards the Employee and I recommend that the Employer pay the Employee compensation of €1,000 as settlement of this dispute.       

I recommend that the Employer would pay €1,000 as compensation for the unfair manner of the dismissal and that both parties would accept this sum as  settlement of the  dispute.

Section 13 of the Industrial Relations Act 1969, Dismissal.