Complainant

Respondent

Anonymised Parties

A Sales Executive

A Water Treatment Company

Representatives

  In person

 Peninsula Business Services Limited

Act

Date of Receipt

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

29/07/2020

The worker claims that he was unfairly dismissed by the employer. As the complainant did not have the 12 months requisite service to refer the issue of his dismissal under the Unfair Dismissals Act, 1977, the matter has been referred to adjudication under the Industrial Relations Act, 1969.

The worker stated that he was unfairly dismissed by the employer and that this was notified to him by email on 27th July 2020 enclosing a letter dated 14th July 2020 concerning the circumstances surrounding the worker’s purported resignation in April 2020.

The worker disputes the contents of the letter and denies that he resigned from his employment in April 2020 or at all. The worker outlined that following a meeting on 16th March 2020, a number of staff were given forms from the employer to apply for financial supports from the Department of Employment Affairs and Social Protection (DEASP) during the Covid pandemic. The worker stated that he applied for the Pandemic Unemployment Payment (PUP) a few days after the meeting had taken place having contacted the employer to clarify that this was the correct course of action.

The worker stated that he made contact with the employer a number of times over the months that followed to see if there was a possibility of working from home and/or when it was likely that he would return to work. The worker said that he was informed that there was no working from home scheme but that some people were working from home. The worker stated that he was informed by the employer that there was no update on a return to work date but that the employer would be in contact when they had an update for him.

The worker outlined that the letter he received on 14th July 2020 stated that he had removed himself from the payroll on or about 3/4/2020 and that the company was accepting his resignation. The worker reiterated his position that it was his understanding that he remained in the employment of the employer while unable to attend work due to the Covid pandemic and while he was in receipt of the PUP.

The worker stated that as well as the letter he received dated 14th July 2020 concerning his resignation, he received a further letter from the same member of management dated 19th August 2020 stating that his role had been made redundant with effect from 14th July 2020.

The employer outlined the problems it experienced around the time of the pandemic from March 2020 and the related difficulties in terms of keeping its business going in very difficult circumstances. The employer stated that between March and June 2020 there was a significant drop in sales calls resulting in approximately 20%-30% of previous business levels.

The employer stated that it made the decision to reduce its staff numbers by two and decided that the worker (as one of the last people to be hired) would be let go. The employer stated that this was conveyed to the worker by letter dated 19th August 2020 and he was provided with the opportunity to appeal the decision to terminate his employment.

The employer stated that it provided the worker with a reference as requested and discharged all outstanding entitlements to him. The employer contends that it was regrettable that the worker was not retained in the employment but there were no other options due to the downturn in its business at the material time.

I have given careful consideration to the submissions of the parties to this dispute and to the documents that have been submitted in relation to the worker’s employment.

The worker outlined the circumstances of what occurred in March/April 2020 and his understanding that he remained in the employment of the employer while unable to attend work and in receipt of the PUP. I have reviewed the Whats App messages between the worker and his employer in the months that followed. The content of the messages in my view supports the worker’s contention that he remained in the employment. The employer does not say in his responses to the messages that the worker is no longer in the employment as he had resigned in April 2020. The employer suggests that he will be in contact when more is known in relation to the worker returning to work. The first mention of the worker having resigned in April 2020 is in the letter dated 14th July 2020 despite the exchange of messages between the parties in the meantime. Having considered this issue I am of the view that the employer’s letter of 14th July 2020 did not reflect the reality of the situation that occurred between March and July 2020 where the worker was in a difficult situation and sought clarity from the employer on a number of occasions. The same member of management subsequently issued another letter to the worker on 19th August 2020 relating to the fact that the worker’s position was being made redundant with effect from 14th July 2020. If the employer was of the view that the worker resigned with effect from 3rd April 2020 there would have been no reason to issue such a letter.

Having considered the matter I find, on balance, that the letter of the 14th July 2020 relating to the worker’s purported resignation was an afterthought from the employer and was extremely unfair for the worker to receive this letter after he had done as instructed by management in March/April 2020 and had sought continuous updates in relation to returning to work thereafter. I am also of the view that the onus was on the employer to support the worker throughout this time, and to keep him informed on issues that were obviously unclear to him including issues surrounding his employment, which it failed to do. It also appears that the employer didn’t make any real effort to retain the worker in its employment despite the continuation of the PUP payments at the material time and it also appears that it did not enter into any discussions/consultation with the worker in advance of deciding that he was to be let go.

On the basis of the unfair treatment of the worker, the lack of support provided to him, the circumstances surrounding the letter of 14th July 2020 and subsequent termination of his employment, I recommend that the worker be paid €3,000 in compensation.

Having considered the submissions of both parties, I recommend that the worker be paid €3,000 in compensation.

Unfair dismissal, Industrial Relations dispute