Complainant

Respondent

Parties

David  Clinton

Marlboro Trust (Retail) Dac

Representatives

Robert Coonan , Solicitor

Sophie Crosbie , IBEC Regional Manager

Act

Complaints Reference No.

Date of Receipt

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

CA-00039154-001

12/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00039154-002

12/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00039154-003

12/08/2020

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

CA-00039154-004

12/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00039154-005

12/08/2020

This matter was heard by way of Remote Hearings pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

The Case came for hearing on June 30, 2021. On that day, the Complainant had pronounced difficulty in securing satisfactory IT connection. I adjourned the hearing and advised the complainant to undertake a trial run in IT connectivity before the resumed hearing.

In addition, I identified a serious and direct conflict in the evidence to be adduced and decided to adjourn the case to permit the legislative developments which followed the Supreme Court case of Zalewski v An Adjudication Officer and ors of April 6, 2021

The case resumed on 2 December 2021 and the last associated documentation in the case was presented by the Respondent on 5 January 2022.

By then, the Respondent had submitted Section 25 records as requested. The Complainant had accepted that the signature on this document was his but distinguished this signature from that attributed to him on the exhibited contract of employment.

The Respondent accepted the stated wage listed on the complaint form.

On 12 August 2020, the Complainant, an Accounts Controller lodged a complaint of Unfair Dismissal, absence of a statement of terms and conditions of employment, lack of payment of statutory minimum notice and annual leave   against the Respondent company,

The Complainant earned €987.28 per week for a 55-hour week. The wage amount was disputed by the respondent, who agreed to clarify this.

All claims were contested by the Respondent and Dismissal was firmly in dispute. Both parties presented written submissions .

The Complainant worked as an Accounts Controller from September 1, 2010, to 17 February 2020.

At the outset of the hearing on 2 December 2021, the Complainant representative submitted that the Complainant sought to present his evidence in the absence of the respondent witnesses. He feared that they may not tell the truth.

The Complainant qualified that he was not disadvantaged by the presence of the witnesses at hearing and agreed to proceed as a collective hearing, settling for having flagged the issue.

CA-00039154-001 Claim for Unfair Dismissal

The Complainants representative outlined that the Complainant worked administering a loans facility for customers. He was an exemplary employee amidst a company whose culture amounted to a “robust form of management “The complainant was regularly subject to derision, bad language abuse and name calling. He was unable to reverse this treatment.

The Complainant was required to work 50-60 hrs per week which drifted into the “unmanageable “and unrealistic targets territory for him. He had struggled in securing an element of his commission.

 The Complainants health gave way and he relied on mediation to address his stress. He resigned his position on February 3, 2020, and this was followed by a period of sick leave.

The Complainant case submitted that the Company had failed in their duty of care towards the complainant.

The Complainant did submit and subsequently withdrew his notice on 13 February, within the notice period. He was led to believe that the Respondent were considering this until they began to criticise his work performance and his alleged failure to maintain proper records. This in effect ended the employment.

The Complainant was cast aside by the Respondent, and he struggled in finding new work. The Complainant regretted resigning and viewed the decision as hasty and unwise while he was not well and very vulnerable. His resignation was  not predicated on an informed consent.

In referring to Keane v Western Health Board UD 940/1998 adopted in ADJ 26601, Robert Flanagan v Paramount Motors Repair ltd, the Complainant representative argued that informed consent was necessary for the resignation to be genuine and binding on the employee.

He went on to rely in Cox, Employment Law in Ireland, first edition, 2019 and focussed on Martin v Yeoman Aggregates ltd [1993] ICR 318 [1983] IRLR 49 in relation to employers who had spoken in the heat of the moment where the parties availed of an opportunity to recant words said in the heat of the moment which did not constitute a dismissal

The Complainant representative submitted that the Respondent was aware of the Complainants illness and should be permitted to rely on the purported resignation as the complainant was troubled by unresolved grievances.

 He sought the remedy of compensation. The Complainant had an extended period on sick leave post hi termination of employment and was unable to mitigate that loss. He has since taken up employment at a starter business on a modest salary. of €374.69 nett. on 7 April 2021

CA-00039154-002 rest period

On his complaint form, The Complainant had submitted that he had not been provided with daily rest periods of 11 consecutive hours per 24-hour period. This claim was not particularised.

CA-00039154-003 rest breaks

On his complaint form, the complainant had submitted that over the course of a 10-12 hr working day, he had not received breaks in accordance with section 12 of the Act. ~The claim was not particularised outside of this statement.

During cross examination, the Complainant confirmed that he had availed of rest breaks over the last week of employment, when out on the road with Mr C. The Complainants Representative subsequently confirmed his signature on Section 25 records.

CA-00039154-004 Statement of Terms of Employment

The Complainant submitted that the pro offered exhibition of the contract of employment was not familiar to the Complainant and he denied that the signature attributed to him   was genuine. There was no reference to a handbook and the complainant was not familiar with a company handbook.

CA-00039154-005   Minimum Notice

The Complainant submitted that he had not received full pay in lieu of notice. During his evidence, he confirmed that he was on sick leave over the course of the first week of notice. He had returned to work for the second week February 10 to 17.

Evidence of the Complainant:

I wish to mention a precursor to the record of the Complainants evidence. The Complainant exhibited a very fragile presentation during his evidence. This prompted me to inquire as to whether the complainant was medically fit to attend hearing. He assured me that he was fit to attend and participate. No Medical evidence was presented.

The Complainant outlined that he could not recall receiving the staff handbook. He denied that the signature appended to the contract as exhibited by the Respondent was his. He outlined that there was a blank in the notice obligation section therein. He also pointed to deficits regarding detail on commencement date and commission.

He submitted that he was good at his job and regarded as reliable. He had not attracted disciplinary action during the course of his employment.

He explained that he was troubled to be singled out and referred to as a profanity   of C*** Turbo apparently, due to speed, but he had no convictions, or Hawaii 5 0 in light of his extracurricular activities. He felt ignored when he asked for help in what he viewed had become a pervasive work culture.

Part of his role was to chase bad debt and he took on another “book “in 2017. He carried a heavy cash load as a result amounting to between 12 and 14 thousand euro.

The Complainant stated that he was ignored by his immediate line Manager Mr C, who had no interest in him and did not advance a referral to occupational health, counselling, or EAP in the case of his condition.

He recalled 3 February 2020 around 1.30 pm where he submitted two weeks’ notice of leaving for Mr A, he said that he was stressed and bullied by a certain unnamed supervisor and line manager.

The Complainant referred to the what’s app comments on the circumstances of handing in his notice during sick leave and his stated intention to return to work the following week.

He did not recall receiving a response to the what’s app.

He recalled having a few days to reflect before he phoned Mr A on the evening of either the 14 or 15 February. The phone call was 5 minutes duration and the complainant disputed that the call occurred after he left employment. He stated that he asked for his job back. He learned that the job had been filled.

In mitigation, he submitted that he had been hoping for more work at named companies and was involved in his own business.

During cross examination, the Complainant confirmed that his last working day was 17 February 2020.He accepted that credit limits were typically pitched at 20-21 weeks

He confirmed that he had taken his breaks the preceding week when out on client visits with Mr C.

The Complainant disputed that Mr C sought to convince him to stay, stating that by then he had already contacted Mr A, the previous Thursday.

On February 10, he resumed work across two named counties and on February 11 he was in the Depot. On 13 and 14 February, he worked with Mr C.

The Complainant initially stated that he had no recall of the contract of employment or of the handbook. Subsequently, he confirmed a slight memory of the contract but not of signing same in 2011.He had no recall of the Company grievance procedure.

The Complainant submitted that he had felt mentally unwell when he submitted his notice, his illness originated in September/ October 2019. He had not articulated a grievance.

He recalled telling Mr C that he was stressed. He confirmed that he had addressed Mr A on the Thursday on the advice of Mr C.

He stated that he worked diligently with Mr C between 10-17 February. His objective was to make sure the books were in order.

He re-affirmed that he had been in conversation with Mr A on Thursday evening, February 13, 2020, and rejected that he had not contacted Mr A between 3 and 17 February 2020.

The Complainant stated that he felt compelled to resign.

He could not recall when his role was filled, and he had considered returning. He denied that his financial targets were lower than others or that his upper limit of credit had surpassed 25 weeks in the books. He stated that he had not been requested to hand over to anyone outside the work he had done in his final week with Mr C.

In clarifications, the Complainant confirmed that when he secured his position, he had interviewed, and the appointment process took about a month. He re-affirmed the call he made to Mr A had occurred on Thursday and not Tuesday as submitted by the Respondent.

The Complainant explained the long lead in time before his claim came before the WRC was based on his studying employment law sufficiently to help him contact a Solicitor

He did not appeal to the CEO as provided in the staff handbook.

He confirmed that Mr B was already a Van driver at the Business prior to assuming his former position

In conclusion, the Complainants Solicitor outlined hat the WRC treats decision made in a hasty manner with some caution. The Complainant had spoken to his hasty decision which was no accompanied by any documentation. In relying on the lack of provision of counselling for the complainant, he relied on the case law detailed above.

He concluded that the complainant had not thought through his decision to resign, and nobody was prepared to help him when he expressed his wish to return to the job.

He contended that the Respondent with 150 employees had not taken their responsibilities seriously.

The complainant had been denied rest breaks, the contract of employment was unsigned and “a mess “The Complainant was willing to resume work as mitigation of loss. His age deterred seamless new employment and he was unfairly fixed with his poor decision to leave as he experienced extended illness as a consequence. The Respondent was insensitive to the Complainant.

The Respondent operates a Credit Company across the Country through a cadre of Sales Representatives who maintain weekly contact with customers.

The Respondent did not concur with the complainants captured  amount  of wages received and countered that the amount was variable and fluctuated through the application of wage commission. The Respondent exhibited a contract of employment.

The Respondent registered a very strong objection to the claims lodged.

CA-00039154-003 Claim for Unfair Dismissal

It was the Respondent case that the complainant resigned his position directly with the company CEO by phone on 3 February 2020. The Respondent representative disputed that the Complainant was compelled to work excessive hours.

The Complainant did not have a positive history of sick leave and there was no evidence of a Constructive Dismissal here.

He repeated this position on leaving on the what’s app directed at his line manager, Mr A, the next day and communicated that he would stay on sick leave during that week but would return to hand over the following week. He resumed work on 10 February 2020 and worked up to Monday February 17.

The Complainant returned to work and shared news of his new employment venue. A replacement for the Complainant was sourced internally during this time. The employment ended on 17 February 2020.

The Complainants role was covered by his line manager until the appointment of Mr B.

On 17 February 2020, in the aftermath of his employment, the Complainant requested to rescind his resignation directly with the CEO.

The next day, the CEO confirmed that his role had already been backfilled and wished him well for the future.

The Respondent has disputed that the Complainant was dismissed and rather he had resigned of his own volition. This version was endorsed by the respondent witnesses. The Respondent was bound to deliver on the weekly commitment to customers and had acted reasonably in backfilling the complainant’s position.

The Complainants efforts to rescind his notice came after the employment had ended and he had no standing to adopt that approach. as resignation had already taken effect.

CA-00039154-002 rest period

The Respondent submitted that the cognisable period for this claim was limited to two days 13 and 14 February 2020.

The Respondent contended that the Complainant managed his own hours and had never raised the issue of daily rest periods during the course of his employment.

The handbook provided that

All employees must take a rest period of at least 24 consecutive hours in each period of 7 days. Inability to avail of the break was couched in terms that Management needed to be notified in writing within one week of this inability.

The Complainant had not activated the company grievance procedure.

CA-00039154-003 rest breaks

The Respondent submitted that the cognisable period for this claim was limited to two days 13 and 14 February 2020 as the claim was lodged on 12 August 2020.

The Respondent contended that the Complainant managed his own hours and had never raised the issue of daily rest breaks during the course of his employment.

The handbook provided that

All employees should take a break of at least 15 minutes if working more than four and a half hours or a break of at least 30 minutes if working more than six hours. Inability to avail of that break must be notified to Management within one week.

The Complainant had not activated the company grievance procedure.

CA-00039154-004 Statement of Terms of Employment

The Respondent submitted that the Complainant had received a statement of his terms of employment. He had signed the contract in 2011 and was provided with the staff handbook in 2015.

CA-00039154-005   Minimum Notice

The Respondent submitted that the Complainant gave two weeks’ notice of leaving employment. He was employed during his and recorded as sick on GP certification during the first week and attended work during the second week. He was paid €590.68

Evidence of Mr F, Sales Manager

Mr F outlined the Operational team of:

5 Area Managers

51 Representaives.23 self employed agents 

Mr F was 41 years at the business and took over his present role in 2012 “against a wall of unsigned contracts “He confirmed that the complainant had signed the contract and he had countersigned in December 2013.

He said that he was unaware of any issues involving the complainant over past years. He said that they had got on well and met at monthly meetings. Heated words there were replaced by a quick resolution. He recalled that the complainant had been pleased to take on a named extra book.

He described the complainants leaving employment “as out of the blue “and it had surprised him. He said that he had learned that he was leaving on February 18, when he had sought to resume. He had not held an exit interview. Replacement for the complainant came in the form of Mr B, who was ready for the role.

During cross examination, Mr F re-affirmed that the complainant had been delighted with the extra book.

He had not intervened while the complainant was on sick leave

He recalled that the complainant had previously been upset and was animated in respect of an audit undertaken in April 2018

Mr F accepted that the complainant had not signed the contract in his presence. He accepted that there were gaps in the contract.

Mr F understood that the complainant was covered by a medical certificate after 4 February.

Evidence of Mr A, Managing Director

Mr A recalled that the Complainant had phoned him on February 3, and he described him as “amenable “he said that he was giving 2 weeks’ notice for personal reasons and had made his mind up to leave. He said that the complainant was calm and mentioned “a new chapter “and there was no mention of Harassment or Victimisation

Mr A said that he conveyed the news on the notification of leaving for Mr F and Mr C.

On Monday 17 February at 20.05 he received text from the complainant enquiring if he could call him? On February 18 at 08.34 hrs, he received a text from the complainant.

He denied talking with the Complainant the previous Thursday.

The Complainant explained that he had a change of heart and sought to be re-instated. The call lasted 5 to 10 minutes and he told the complainant he would talk to Mr F and Mr C. He learned that the recruitment process was underway, and it was not possible to “unbreak the egg “

In cross examination, Mr A stated that the block to accepting the c complainant back was that he knew somebody had been appointed. He was not aware of any other vacancies and was not involved in the appointment of Mr B. He had no issues with the Complainant. He did not know when Mr B commenced in role.

In addressing contracts of employment, all staff had now signed contracts.

Mr A responded to the complainant’s representative by stating that he had formed the view from his discussion with the complainant that he had something else lined up.

He did not receive a sick note covering the notice period. He denied dismissing the complainant on the Tuesday morning.

Mr A confirmed that the Complainant had not participated in an exit interview form. He confirmed that the notice requirements had not been followed and could not identify just where the reference to 2 weeks’ notice had emerged from.

Evidence of Mr C, Area Manager

Mr C had been in this role for 20 years.

Mr C confirmed that he had been involved in rehiring the complainant. He denied directing any derogatory remarks towards the complainant.

In recalling his level of absence, Mr C confirmed that the complainant had 5 days off in 2019, to attend Physio, a Match, and a Wedding. He was unaware of any work-related issues.

Mr C emphasised that the company modus operandum was predicated on Audits of accounts in progress in the field.

He confirmed that he habitually travelled out with a representative who was in the process of leaving. His objective to assess the status of the accounts. In this case, he stated that the Complainants books were not at balance stage, and he had observed some unusual transfers.

He recalled that the complainant finished on expiration of his notice on Monday 17 February.,

He recalled that the complainant had finished his collections on February 3. He recalled receiving a text from the complainant the next day, to which he had replied.

He travelled with the complainant on the final Wednesday, Thursday, and Friday of his employment. During this time, the complainant told him that he had a new job in a supermarket chain, where he would have reduced pay and hours were expected to be daunting.

He had not received a medical certificate from the complainant.

Mr C was clear that on that final Wednesday, the complainant had communicated that he had had enough and was ready to move on. By the following Monday, he asked the complainant if he had regretted his decision? To which the complainant confirmed that he had made a hasty and rash decision. The Complainant told him that he intended to phone ~Mr A that evening.

Mr C said the complainant left and went on holidays to Italy. He had retained approved use of the company car for two weeks. Mr C understood that the complainant had parted on good terms from the business and there was nothing unusual during his last days of work.

During cross examination, Mr C confirmed that he did not have a say in the complainant’s successor.

He affirmed that the complainant had not tendered any complaint during his employment and this case was the first time he had heard that he had a problem with him.

If the complainant had a complaint, the correct course of action would be for him to approach Mr F rather than Mr A.

Mr F denied bullying the complainant. He expanded on the status of the complainants’ books of accounts and stated that he had observed discrepancies and imbalance. He qualified this by stating that this was common amongst some representatives.

He described the complainant as an average employee. He was not subject of a Company Performance Appraisal.

He told the complainants solicitor that Mr B was appointed on the same level of operational experience held by the complainant when he started. He described Mr B as capable.

He re-affirmed that the complainant should call Mr A as he could not influence an outcome outside of the notice period.

He confirmed that Mr B was appointed on 24 February following an interview by Mr F.

He confirmed that the complainant had not participated in an exit interview.

Mr C denied dismissing the complainant. He said he was aware of his resignation. He had not been approached for a request for a reference.

In conclusion, the Respondent representative contended that the Complainant was not terminated as provided in Section 1 of the Act, he was not dismissed, nor where the circumstances relied on proximate to that required to prove a constructive dismissal.

The Respondent relied on Millet and Shinkwin DEE 4/2004 ELR 319

Ms Crosbie submitted that the complainant had been paid during his notice period and no contraventions had occurred during the cognisable prior of the claims taken under the Organisation of Working Time Act, 1997.

The Complainant was not available for work through illness and self-employment. He had failed to mitigate his and had not convinced the Respondent of his availability for work

I have been requested to make a decision in these five-complaint s, all of which were lodged on 12 August 2020, almost 6 months following the conclusion of the employment between the parties on 17 February 2020.

In reaching my decision, I have had regard for the written submissions supported by oral evidence in the case. I have also considered case law advanced by the parties.

CA-00039154-001 claim for unfair dismissal

For me, I found some opaqueness around the claim for unfair dismissal on the complainant side. The complaint form and narrative surrounding this indicated a first in time view that the Complainant was dismissed by the Respondent when his requests to return to work were not acceded to. This submission was flexed somewhat by the complainant representative when he added that the Complainant resigned his position in response to his treatment in the work setting, a view further reflected by the Complainant in evidence.

As a first step, I find it necessary to set out the definition of a dismissal under Statute, Section 1 of the Unfair Dismissals Act, 1977.

dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,

I had some unease around the variance in the practices set out in the staff handbook as best practice in an employment setting and what occurred in the reality of the facts of this case.

I found that the foundation of the complainant’s employment was ill defined by means of staff handbook documentation or contract.

By this, I agree with the complainant representative that the contract was indeed “a mess “The Complainant started work in September 2010 and the documentation relied on by the Respondent had its genesis in November 2011 and later in 2013. I can understand that for a time, the Respondent sought to secure agreement in contract formation and agreement, however, the document relied on by the Respondent was silent and blank on the key determinants on pay determination, start date, required period of notice period and most important of all it carried a disputed signature in the consent zone. These are concerns which collectively go to the root of this case.

This disputed signature formed a consistent component of the hearing and was not resolved by the submission of another signature, that purported to belong to the complainant on section 25 records under the Organisation of Working Time Act, 1997. This time, the complainant accepted that the latter-day signature was indeed his but continued to distance himself from the contractual signature.

I have reflected on this and find that I must accept the Complainant evidence in this regard. The employees were approached at a point in time regarding contracts, but he did not agree to sign. It is regrettable that the Respondent did not advance the opt out clause contained as a rider on the contract for conscientious objection.

I take on board that the Respondent has long since secured the co-operation of all staff in contracts of employment. However, for the purposes of the instant case, I must conclude that the complainant did not have the benefit of a proper presiding contract of employment, and this placed him at a disadvantage in seeking to navigate his exit from the company in terms of rules and rituals.

Section 1 of the Act gives a broad definition of a contract of employment

“Contract of employment” means a contract of service or of apprenticeship, whether it is express or implied and (if it is express) whether it is oral or in writing.

For the purposes of the case, I must conclude that the complainant had an oral contract of employment.

The staff handbook version 4 from 2019 referred to a number of practices such as a comprehensive grievance procedure, provision for referral to Occupational Health. The premise that resignation should be in writing, provision of exit interview and exit form as well as required notice. Had these landmarks been actioned, the course of events in this case may have been different for all parties. I noted that the complainant submitted that he had no knowledge of the staff handbook. On a careful reading, it read generically rather than particular to the work of the Respondent. It also referred to a personnel Manager role, which was not visible to me However, I accept that the staff handbook was in place during the Complainants employment. It may have been helpful if the Respondent had retained a record of distribution of this document during the Complainants employment. For the Complainant, a helpful default position can be found in the Code of practice on Grievance Procedure in SI146/2000.

Circumstances of Termination

I have been requested to decide on the facts as they have been submitted in this case. There is a considerable dichotomy in those stated facts.

The Respondent, on whom the burden of proof rests in a claim for Unfair Dismissal has consistently adopted the position that they were met with an oral resignation to Mr A which was framed in calmness. One day later a what’s app message was received which set out the exit plan.

They allowed the notice period of two weeks to run and carried out the recruitment of a replacement for the complainant. They did not receive a sick note to cover the first week of notice. They exhibited a what’s app on 4 February which for them conveyed a purposeful statement on the complainants planned departure post sick leave and post the goodbye ceremonies to clients the following week. Their reliance on the complainants last minute attempt to return on 17-18 was too late in the book of the employer as the stage had been set for his successor, who emerged from the internal cadre and was appointed at the end of February. The Respondent wholly disputed the Complainant submission that his resignation was not predicated on an informed consent and emphasised that he had stated an intention on diversifying into separate employment, going as far as to name that employment.

The Complainant had a wholly different recollection of events in which he participated and his separate chronology in narrative is the most profound difference for me in the case. He has presented a narrative where he was described being actively marginalised and insulted at the business which contributed to a sharp decline in his mental health by September/October 2019 he was affronted when he wished to alter his course during the second week of his notice period and was rebuked by Mr A. He attributed his resultant sickness and inability to work to these circumstances. He told the hearing that he was ignored by his managers when he sought help and he was called horrible names. He said that nobody helped him.

As I have stated previously, I detected a fragility in the complainant that prompted me to seek an assurance from him that he was fit to attend the hearing. He assured me that he was fit to attend.

An employment relationship like all human relationships is subject to the ups and downs of everyday living and everyday challenges.

The first point that I wish to make here is that neither party chose to rely on a history of animus of discord before September 2019. By then, the complainant had worked at the business for 9 years and was operating an expanded book. He said clearly that his mental health began to fail around September 2019, but he did not particularise this in terms of episodes at work. I accept the Respondent evident which recalled the 5 days of absence linked to social outings in the calendar year 2019. This was not disputed by the Complainant. I am therefore, at a loss to link the cause of the Complainants fragility to his work as neither party presented medical evidence and the complainant did not detail that transformation in recognisable or contextual detail in his evidence. He did not lead with the contextual background to his being referred to by insulting nicknames. These were denied by Mr C, who painted the existence of a professional and respectful working relationship up to and including the last shared week on the job February 10 to 17, 2020.

I listened carefully as the complainant’s representative made successive arguments that the complainant had been hasty in submitting his resignation, it was not his preferred course of action and he had attempted to alter that course on the Thursday prior to his leaving by means of a call to Mr A. This was disputed by Mr A and the call was pitched by him on February 18, a day after the employment ended.

I have reflected on this conflict and find that I must resolve the conflict in favour of the Respondent. I think that the Complainant did have a change of heart about leaving, but I had difficulty in his statement about wishing to stay and measuring it against that he felt he had no option to resign.

I have found that the Complainant finished his working relationship on the evening of February 17 in accordance with his planned departure. I accept Mr C evidence that he checked whether he was sure that leaving is what he wanted? The Complainant subsequently altered course and sought to stay and was severely disappointed when told that door was closed.

 It is my opinion that had the complainant made the call on the Thursday to Mr A, he would have followed up for a response before finalising his employment on the evening of the 17th. Placing the sequence of the contact with Mr A to the evening of 17 to morning of the 18th is a much more likely sequencing for me.

This brings me to a deliberation of the case law relied on in the case.

In Redmond on Dismissal Law, Chapter 22, Des Ryan BL outlines:

In general, a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt that dismissal was intended, or it may be reasonably inferred as having been intended. Duggan v A and T Drains Services UDD 1737

I did not have the benefit of a record of a written resignation outside of the dual measure what’s app of February 4 (sick leave and resignation notification), one day after Mr A received an oral account of the Complainants statement on resignation. This was at sharp variance to the best practice  procedure outlined in the staff handbook.

However, the Respondent took the resignation seriously and this was evidenced by the internal appointment process taken in tandem with Mr C commitment to working with the Complainant to audit the books during his last week of employment. The Respondent did not convey a written acceptance of the resignation.

The Complainant wanted me to apply Keane v Western Health Board UD 940/1988 to the facts of the case, where a complainant, a stranger to a grievance procedure was held to be in a confused state of mind at the moment of her resignation and the resignation was tainted by these events.

The instant case can be distinguished from this as I have not found evidence of the complainant’s confusion at the point of resignation. His stated career pathway was heard by Mr A and Mr C. He retained the company car for two weeks as he took an Italian holiday. For me, I found that the plans made by the complainant to diversify did not materialise at the point of exit and this plunged him into a disappointment.

If he had animus against the respondent, he was silent on the nature and particulars. He did not activate a complaint or follow through on an appeal of his petition to remain with the Company.

He did not prove a nexus between a reported deterioration in mental health and his statement on an enforced departure.

I was troubled by the chasm between the parties on the topic of animus and probed both parties on this. I can accept that the Complainant has engaged in a retrospective analysis of his working life through a rear view  window mechanism and found significant shortcomings as a result, however I have found that he was silent on those shortcomings during the active employment. I could not identify just when he had asked for help and just who had turned him down.

In my overview of the case, I found that the Complainant left work on the cusp of the outbreak of the national pandemic where all our worlds changed significantly. He was unable to relaunch into the world of work until April 2021 as he submitted that he was ill, subsisting on €207 per week illness benefit and engaged for a short time in seeking to launch his own business. I can understand his disappointment here.

In Keane, there was a short window before the complainant sought to withdraw her resignation. In the instance case, the complainant pitched the reconsideration of the notice to resign as Thursday, February 13, 2020, the Respondent pitched it 5 days later on 18 February 2020. This was not a short window by any standards.

The EAT held that the Respondent in Keane would have acted reasonablyhad they permitted a reconsideration of the withdrawal of notice.

In the instant case, the Respondent undertook to consider the request on February 18 and did not accede to the request to resume work. This position upset the complainant.

In Kwik fit (GB) ltd v Linehan [1992] IRLR,

The following passage appears at paragraph 31: 

“If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment, personalities constitute an important consideration. Words may be spoken, or actions expressed in temper or in the heat of the moment or under extreme pressure (‘being jostled into a decision’) and indeed the intellectual makeup of the individual may be relevant (see Barclay [1983] I.R.L.R. 313). These we refer to as ‘special circumstances. Where ‘special circumstances’ arise, it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such enquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the ‘special circumstances’ the intention to resign was not the correct interpretation when the facts are judged objectively.” 

I found this a very insightful and understanding observation and note its approval by the Labour Court in Millet and Shinkwin DEE 4/2004 ELR 319

In the instant case, Mr A learned of the Complainants intention to resign on February 3, 2020. He reflected this notification was couched in calmness. I accept that evidence. I find that the notice of resignation was unambiguous and was presented with a firm plan for relaunch in the world of work. 

I find that the complainant cannot rely on special circumstances here as he had not flagged the nature of his illness on February 4, nor had his notice to resign been spoken in temper or in the heat of the moment He may now on mature recollection reflect that he  had internal conflicts regarding the employment, but I could not find evidence of their exhibition during the notice period. the message the Complainant left me with if that he felt he had no choice outside resignation. This was a privately held view that he had not visibly teased out or tested  in the workplace. 

I find that the Complainant was clear and unequivocal in the transmission and execution of his notice to leave his employment. I find that his change of mind was communicated on the conclusion of his employment and while the respondent did give this some consideration, they were  not bound to accommodate the change of mind outside the existence of special circumstances.

The Labour Court considered a scenario in Millet, where a resignation was sought to be recanted. The Labour Court held that the Complainant had been discriminately dismissed following interpersonal conflict. 

(1) That where an employee makes a decision to resign which is not fully informed because he/she is not in a position to fully evaluate his/her options or he/she may act on a misinterpretation of something which is said or done and the situation is still retrievable, it would be unreasonable for an employer to deny an employee an opportunity to recant within a reasonable time once the true position becomes clear and such a denial may in the circumstances amount to a dismissal.

(2) That employees generally, and pregnant employees in particular, are entitled to expect that they will not be subjected to conduct which exposes them to physical or psychiatric injury including stress related sequelae.

(3) That the respondent conducted himself in relation to the claimant in a manner which would have provided reasonable grounds upon which the claimant would have been entitled to terminate the contract without giving prior notice to the employer, consequently the circumstances in which the claimant's employment came to an end could properly be classified as a dismissal within the meaning of s.2(1) of the Employment Equality Act 1998. 

In applying this test to the current circumstances, I have found that the Complainant made an informed decision in his resignation. His change of mind came outside his notice period and was not based on special circumstances.

I accept that by then the Respondent had noted some issues with his books on leaving, but Mr C qualified this when he said others also had that pattern and the matter had not escalated to a disciplinary footing.

I have found that the Respondent acted reasonably when they vetoed the complainants request to return outside the conclusion of his employment. I note that the complainant’s successor was not in place until February 28, and this has upset the complainant. However, the Respondent was clear that the Complainant had a clear relaunch plan in another named employment. I note that this employment had not requested a reference from the Respondent.

In conclusion, I have not found that the Complainant was dismissed by the Respondent in accordance with section 1 of the Act. Neither have I found that the complainant was constructively dismissed in accordance with Section 1 of the Act.

Instead, I have found that the Complainant resigned his position on February 3, 2020, expanded on his exit strategy the next day on the what’s app and sought to reverse the decision on the conclusion outside his employment zone, but unfortunately did not satisfy the test for special circumstances. There was no dismissal.

I also conclude that the Respondent did not activate their own policy on resignation, through  written formation, acceptance and exit interview . This was a significant  shortcoming from the pathway set out in the handbook relied on in this case . The impact of this was a missed opportunity for both parties .

It was unforeseeable that the evolution of the national pandemic would hit the employability market so hard. I accept that by the time the Complainant lodged his claim before the WRC, that market had shrunk significantly .

The Complainant was not unfairly dismissed, nor was he constructively dismissed. There was no dismissal. He resigned .

CA-00039154-002 rest period

The Complainant has claimed that he was not provided with daily rest periods of 11 consecutive hours per 24-hour period.

The cognisable period for this claim covers 13 February 2020 to 12 August 2020, the date the claim was lodged.

Section 11 of the Organisation of Working Time Act, 1997 outlines my jurisdiction in the claim.

Daily rest period.

11.— An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

The Complainant has not particularised his claim in this matter.

I have not identified a contravention in the Act on this occasion. I find the claim is not well founded. 

CA-00039154-003 rest breaks

The Complainant has claimed that he was not provided with rest breaks in accordance with Section 12 of the Act.

The cognisable period for this claim covers 13 February 2020 to 12 August 2020, the date the claim was lodged.

Section 12 of the Organisation of Working Time Act, 1997 outlines my jurisdiction in the claim.

Rests and intervals at work.

12.— (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

The Complainant confirmed in evidence that he had received rest breaks in his final week of employment which corresponds to the cognisable period of this claim.

I note the respondent reliance of the notification clause of staff handbook on missed breaks

I have not identified a contravention in the Act on this occasion. I find the claim is not well founded.

CA-00039154-004 Statement of Terms of Employment

The Complainant has submitted that he never received terms or conditions of employment. This was rejected by the Respondent who relied on a largely unpopulated document which I have not accepted was either properly provided to or signed by the Complainant. I have already endorsed the complainants view that “it was a mess”.

My jurisdiction in this matter rests in section 3 of the Terms of Employment (Information) Act, 1994

Written statement of terms of employment.

3.— (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, 

I have identified an egregious breach of this Section which has endured from immediately outside the first two months of the complainant’s employment in September 2010. This forms a subsisting breach.

This statement is a foundation document of employment and one which if it had been provided as the Respondent was obliged to provide it may have assisted the complainant to navigate more effectively through his working time.

I have identified a contravention of Section 3 of the Act.

The claim is well founded. 

CA-00039154-005   Minimum Notice

The Complainant  submitted that he had been denied notice pay in light of his dismissal .

I have found that the complainant was not dismissed but rather subject to sthe obligations set out in Section 6 of the act on notice .

Right of employer to notice.

6.— An employer shall, subject to the right of an employee to give counter-notice under section 10 of the Act of 1967 or to give notice of intention to claim redundancy payment in respect of lay-off or short-time under section 12 of that Act, be entitled to not less than one week’s notice from an employee who has been in his continuous employment for thirteen weeks or more of that employee’s intention to terminate his contract of employment.

The  Complainant gave two weeks notice of his intention to leave employment and was on sick leave for the first week and worked the second week .

I have not identified a contravention of the Act as I have not found that the Respondent had a liability to pay notice .

CA_00039154-001 Claim for Unfair Dismissal

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the Complainant was not unfairly dismissed .

CA-00039154-002 rest period

Section 41 of the Workplace Relations Act 2015 requires that I make decisions in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found the claim is not well founded .

CA-00039154-003 rest breaks

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found that the claim is not well founded .

CA-00039154-004 Statement of Terms of Employment

Section 7 of the Terms of Employment (Information) Act, 1994 requires me to make a decision in relation to the complaint in accordance with Section 3 of the Act.

I have found that the claim is well founded .

I order the Respondent to pay the complainant compensation to the amount which I consider just and equitable as €3,949.12, the maximum amount permitted to me .

CA-00039154-005   Minimum Notice

Section 11 of the Minimum Notice and Terms of Employment Act, 1973 requires me to make a decision in relation to the complaint in accordance with Section 4 -6  of that Act.

I have found that the claim is not well founded .

Unfair Dismissal, Rest period, Rest breaks, Statement of Terms of Employment, Minimum Notice