ADJ-00029310

Complainant

Respondent

Parties

James  Brien

FG Wilson Engineering Ltd

Representatives

Represented by Brendan Guildea BL instructed by Rosemary Scallan and Company Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00039136-001

11/08/2020

The complainant commenced employment with the respondent on 5 December 2005. It was submitted that he is a skilled mechanic and electrician and provided specialist generator maintenance services to clients of the respondent either on/off site which involved travelling throughout Ireland. The complainant submits that as a result of the Covid 19 pandemic, he decided to self-isolate and informed the respondent by e-mail dated 17 March 2020 that he would be back to work on Monday 23 March 2020. He subsequently changed his return date to 30 March 2020. The complainant contends that he received no acknowledgement or reply whatsoever from the respondent in relation to his self-isolation.

The complainant submits that on 15 May 2020, he received an e-mail from the respondent, informing him that the company vehicle in his possession was required by the company. The complainant states that the company vehicle was collected from his home address on 15 May by his line manager MM at 2pm. The complainant asserts that MM did not make any comment to him when he collected the vehicle keys from him. The complainant contends that a colleague who drove MM to collect the keys informed him that the company was flat out and asked him about his return date so as to relieve pressure on the team.

The complainant submits that on Monday 18 May, he received an e-mail from the respondent stating that he was being made redundant and would be given a statutory redundancy payment. The complainant states that he received his final payslip on 25 May 2020 which included statutory redundancy in the sum of €18,000 which he states was an underpayment given his service with the company and overtime worked. The complainant states that at no stage was his redundancy discussed with him. The complainant submits that during his 15 years with the company, he experienced no disciplinary issues. He states that the respondent continued to engage in the same or similar work, in the same manner, and had no lawful basis for selecting him for redundancy. The complainant states that he is aware that the respondent has since employed at least one worker and/or re-deployed an internal worker to discharge his role and can produce documentary evidence of job advertisements to substantiate the fact that this was a sham redundancy.  The complainant stated that he commenced in a new job on 1 July 2020.

The respondent states that on 17 March 2020 the complainant informed his line manager by e-mail “due to the current situation regarding Covid 19, I have decided to stay away from the workplace for the moment. I plan to return on Monday 23 March but will review that over the coming week.”. The respondent contends that the complainant was not in any way sick or unwell or if he was he did not inform the company. The respondent states that the complainant provided no certs of any kind or any other explanation for his action. The respondent contends that on 18 March 2020, the complainant’s manager e-mailed the complainant and asked him if he was stating that he was unavailable for work and the complainant responded with a “Yes Mick” by e-mail on the same day.

The respondent states that on 23 March 2020, the complainant e-mailed his manager stating “will not be back until Monday 30 March. Sorry for any convenience but health before wealth.” The respondent maintains that the complainant was not in any way sick or unwell or if he was he did not inform the company and he provided no certs or explanation for his actions. The respondent submits that on 30 March 2020 the complainant e-mailed his manager stating “following the government order on Friday 27 March for all to stay at home, I will not be back to work before Monday 13 April.” The respondent contends that on 15 May 2020, the complainant’s manager e-mailed the complainant and requested return of its company vehicle which he collected on the same day. The respondent asserts that yet again the complainant provided no explanation for his actions to date.

The respondent states that on 18 May 2020, the complainant’s manager e-mailed the complainant informing him that he had made himself unavailable for work for the last number of months and that the company were now in a position where it had no work for him and that he would be made redundant. The respondent states that the manager advised the complainant that the company would abide by its obligations and make the required payment in the next pay run and that if the complainant required a reference he should not hesitate in contacting him. The respondent states that on 20 May 2020, the complainant e-mailed the company and asked for confirmation that the company would make a full payment regardless of Covid. On 21 May 2020, the complainant’s manager e-mailed the complainant to confirm that the company would pay as agreed. The respondent submits that on 22 May 2020 the complainant ceased to be employed by it and he was paid a lump sum for his 14.5 years service.

The respondent maintains that the complainant chose to make himself unavailable for work from the outset and that at no stage did the company request this course of action. The respondent submits that it is an essential service and during the course of the pandemic did not close its business. The respondent states that it takes its role as a support service to the HSE, state agencies and all of its customers very seriously. The respondent contends that it was left in a position whereby it was required to take on staff to fill the void left by the complainant’s actions. It states that it was unwilling to turn to those staff and dismiss them in order to facilitate the complainant whenever he deemed it suitable for him to re-enter the workforce and that their health and wealth is every bit as important to the company as the complainant’s is to him. The respondent states that it viewed the complainant’s actions as gross misconduct but chose to take a conciliatory approach in light of his length of service and, with a view to preventing this current course of action, the company made the lump sum payment to the complainant.     

I have carefully considered the evidence adduced in the course of the hearing.  The respondent submitted that it informed the complainant that if he did not come back to work, his job was at risk. The respondent admitted that there was not a redundancy situation but that while not wanting to dismiss the complainant on grounds of gross misconduct for not attending work on the basis of the Covid 19 pandemic, it tried to be conciliatory and offered the complainant a lump sum payment on the termination of his employment to which the complainant agreed. The Director stated that staff were under a lot of pressure at this time and the service they were provided was essential and critical in the context of servicing of equipment etc relating to Hospitals, Healthcare settings, Schools and various other organisations.

Having carefully considered the matter, I find based on the evidence heard that the complainant was not unfairly dismissed by the respondent.  I find that it was unreasonable for the complainant to absent himself from work on the basis of as he puts it “a global pandemic”. The complainant could have requested a risk assessment on the basis of Health and Safety at Work Act with regard to the work he was carrying out. I am cognisant of the testimony of the Director of the respondent company who stated that the company was under huge pressure at the time and the engineers were front line workers. He stated that it was vital that they were available to service the equipment in the HSE and the hospital and healthcare settings. The Director also stated that he was fearful that the conduct of the complainant would lead to other engineers absenting themselves, in that, if the complainant was allowed do so, other engineers may follow suit and therefore by mutual agreement, a severance payment was made to the complainant.

I note that the complainant had access to the company van from the time he absented himself from work on 17 March until 15 May 2020. I also note that at the hearing the Director stated that it informed the complainant that it would provide him with a good reference.  I accept the bona fides of the respondent wherein the Director stated that the company viewed the behaviour of the complainant as gross misconduct which warranted summary dismissal but that given the complainant was with the company over 14 years it took the conciliatory approach of making a severance payment to the complainant on the termination of his employment.  I am satisfied that the termination of the complainant’s employment was by mutual agreement.

While the respondent did not carry out the matter on a procedurally correct basis, I am of the view that it was in a very difficult position. The respondent was grappling with trying to meet its requirements in relation to the critical and essential service that it provides to hospitals, healthcare settings etc and the fear that other engineers may follow the complainant and absent themselves and the ensuing difficulties that would have arisen. Having carefully considered the totality of the evidence heard, I find that the complainant was not subjected to an unfair dismissal and accordingly I find that the claim is not well-founded.     

I find that the within claim is not well-founded.  I am satisfied that the complainant was not unfairly dismissed.

Unfair dismissal, severance agreement