Complainant

Respondent

Anonymised Parties

A Worker

An Employer

Representatives

  Self represented

Wendy Doyle Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-000XXXXX-XXX

03/01/2021

The Worker contends that he was dismissed from his position after he requested a performance and salary review.

The Complainant stated that he was employed as an Engineer by the Respondent company from 20th January 2020.  He received core conditions of employment on 10th January 2020 which committed the employer to give him a performance and salary review after 9 months.  He reminded the employer of this by emails in November 2020 and when he had no reply, he emailed the Financial Controller asking for certain information.  This was wrongly taken as a resignation.  The Complainant submits that the Respondent unfairly dismissed him.

The Complainant commenced employment on 20th January 2020 and his employment was uneventful until the Covid-19 pandemic caused the Respondent’s offices to close, and all employees were asked to work from home. The Respondent had ongoing contact with the Complainant in respect of work throughout the period of closure and the Complainant never raised any issues at work with the Respondent. In fact, Financial Controller Mr F of the Respondent met with the Complainant by chance on 15th October 2020 at the office whereby the Complainant spoke about his Christmas holidays in Portugal.

On 13th November 2020 the Complainant sought to enquire from the Financial Controller of the Respondent as to when his performance and salary review would be held.  At this time the offices of the Respondent continued to be closed due to the Covid-19 pandemic and all employees were working from home. This delayed reviews for all employees and not just the Complainant.

On 12th December 2020 the Complainant again wrote to the Financial Controller stating .. “I should have had a Performance and salary upwards review after 9 months from the start of the contract (20th January 2020) …Today 12th December I did not have it”. He also informed the Respondent that after speaking with the Workplace Relations Commission that they were “breaching the following obligations as an employer”. The Complainant proceeded to set out a number of issues to which there was no substance and noted “As I did not receive the contract, I am aware the termination notice is one week. I want to know how many days of paid leave I have until the end of the year and the amount (in euros) (The Respondent Company) must pay me (weekly pay +home allowance, Christmas voucher, paid leave etc).

The Financial Controller replied by email of 15th December 2020 stating that his performance review would be held on Friday 18th December 2020 in the Board Room. The Respondent was anxious about arranging any meetings with employees at this time but arranged to put all appropriate precautions in place prior to meeting any employees. The Complainant did not reply to this email and the Financial Controller tried to call him several times on his Irish and Portuguese mobile, but the Complainant did not answer.  

Having not received any reply from the Complainant who was also not answering his phone, and in light of his email of 12th December, the Respondent understood that the Complainant wished to leave his employment voluntarily and proceeded to confirm that the Complainant’s last day of employment would be 1st January 2021 and outlined the payments which would be paid to him.

By email dated 16th December 2020, the Complainant informed the Respondent that “I did not give a notice of termination, I simply asked how many days I have of paid leave”. The Complainant proceeded to state that he was due a performance and salary upwards review and “For your information, and with my academic background and professional experience, I now hold an MIEI with Engineers Ireland and can apply for Chartered Engineer in January 2021. I have been receiving several offers with a salary of at least €45,000, €10,000 more than now”. At this time the Respondent became aware that the Complainant had left the country without authorisation and was in fact in Portugal and in his email he states “I am currently in Portugal. A has received an email stating that I would travel to Portugal for Christmas and could work from here”. He concluded that “Once my contract ends, I will return the mobile phone, sim card, swipe card, gate key and monitor”.

Upon receipt of the email Mr F of the Respondent then tried to contact the Complainant several times by telephone to discuss his email and noted a foreign dial tone. Mr F sent the Complainant an email on 17th December 2020  noting “I’ve tried calling you numerous times and your phone keeps ringing out and going to voicemail”. Mr F asked him to call him “to discuss” the email of 16th December as Mr F was anxious to understand whether the Complainant wished to withdraw his resignation however the Complainant did not return the call.

Mr F gave evidence at the hearing that he had attempted to contact the Complainant by phone and email on numerous occasions, to no avail as the Complainant simply did not return his calls or respond to his emails asking him to phone him.

In light of the Complainant’s failure to return his calls and the fact that he was in Portugal, it was Mr F’s genuine belief that the Complainant had in fact resigned from his position.

At no stage did the Complainant return calls or emails in respect of his position and failed to contact the Respondent until the end of January 2021.

The Complainant lodged his complaints on 3rd January 2021 to the Workplace Relations Commission. 

It is the Respondent’s position that the Complainant resigned from his employment in light of his email dated 12th December whereby he stated that “As I did not receive this contract, I am aware that the termination notice is one week”. The Complainant had also informed Mr F on several occasions that he could obtain an increased salary elsewhere. Upon receipt of the Complainant’s email of 16th December whereby he refuted that he resigned, Mr F tried to telephone him on several occasions to understand what he wished to do however the Complainant never returned his calls. Around this time Mr F had also become aware that the Complainant had left the country and was in fact working from Portugal and he subsequently learned that the Complainant was setting up a business there.   

It appears from the complaint form that the Complainant resigned due to his not having received a salary and performance review despite the fact that the Respondent had scheduled a review with the Complainant on 18th December. We would respectfully suggest that these are the actions of an employee who had already decided to leave his role and that it was most convenient for him to ignore all calls and emails from his employer seeking clarification as to his status. The Complainant’s conduct in not returning the Respondent’s calls, leaving the jurisdiction and setting up a business

in Portugal are indicative of an employee who had already left their employment and who had not intended to return to work with the Respondent.

In the email from the Complainant dated 12th December 2020 he states that he is aware that the termination notice is one week.  The question arises why did he state this?  The Respondent clearly considered that he was handing in his notice.  When the Complainant then advised by email of the same day that he was not resigning, I note the Respondent did all it could to make contact with the Complainant to clarify the situation.  I also note that the Respondent did intend to carry out the performance review in any case and had scheduled the review with the Complainant.

In view of the fact that the Respondent made every effort to contact the Complainant to clarify matters, and the Complainant failed to respond, I find that it was reasonable for the Respondent to consider that the Complainant has resigned from his job.  I do not uphold his complaint that he was unfairly dismissed, and I therefore can make no recommendation in which this dispute can be resolved.

Unfair dismissal, less than 12 months service, not upheld.