Complainant

Respondent

Parties

Seamus J (James)  McDevitt

Martin Houston & Sons Ltd

Representatives

Mr William McLoughlin BL instructed by  Conor McLaughlin & Associates

Anna Butler Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00040078-001

25/09/2020

The Complainant commenced employment with the Respondent as a mechanical engineer on 27 June 2016. He earned €673.14 gross: €557.78 net for a 39-hour week. The Complainant submits that he was unfairly dismissed on 6 May 2020. The Respondent denies the fact of dismissal. As the fact of dismissal is at issue the initial burden falls on the Complainant to prove that there was a dismissal. The Respondent originally raised the issue as a preliminary point with regards to jurisdiction in that the Respondent submits that there was no proof of dismissal or resignation and argues that this is a pre-lodged claim with the resultant question of jurisdiction at issue.

Respondent’s Preliminary Argument: Pre-Lodged Complaint

The Respondent argues that the Complainant lodged his claim on the 25 September 2020. The Complainant neither resigned nor been dismissed from his employment on this date.

The Respondent submits that this is a pre-lodged claim, and the Complainant did not fully exhaust the internal procedures, nor did he actually resign from the company. The issue of pre-lodged claims has been addressed by the High Court in Brady v Employment Appeals Tribunal [2015] ELR 1. The Respondent submits that while it is accepted that the High Court found that the claim was not pre-lodged in circumstances whereby the claimant had lodged his claim during his notice period and therefore his termination was imminent, the Respondent submits that in this particular case, the Complainant’s position with the Respondent had not been terminated.

 The Respondent also refers to the Tribunal case of Caragh Neeson v John O’Rourke & Sean O’Rourke Chartered Accountants (UD2049/2011)where the question of whether a claim will be judged to be pre-lodged in circumstances where a claimant has lodged claim papers but is still in fact employed by a respondent was considered. The Tribunal found that the wording of Section 8(2) “demonstrates a manifest intention by the legislature to preclude claims being lodged before the dismissal date.” The Tribunal also went on to state, “if the Tribunal were to look with leniency on premature claims the system could well become clogged up with claims based on the expectation that a dismissal might occur sometime in the future which could later be withdrawn.”

The Respondent submits that this is exactly what this claim was at the time of its being lodged, as a dismissal had not occurred.  The Respondent also refers to the Employment Appeals decision of Employee v an Employer (UD129/2012) wherein the division stated that “a Contract of Employment cannot be terminated by a mere mental process in the minds of one of the parties.”

Complainant Position:

The Complainant argues that he considered himself dismissed when reasonably interpreting the behaviour of the Respondent’s managing director. The Complainant was not paid for five to six months and that under such circumstances it was fair to assume that he was dismissed.

 I find that the “fact of dismissal” in this case goes to the heart of the complaint and is in fact a substantive issue which will be determined after both sides’ submissions and evidence is heard. Therefore, I declare I have jurisdiction to hear the complaint under section 8 of the Unfair Dismissals Act 1977, as amended, hereinafter “the Act”.

Summary of Evidence of the Complainant:

The Complainant gave evidence on affirmation. The Complainant’s most recent work with the Respondent was to map and draw out the computer bases for data centres which would then be fabricated at the Respondent company. His office at the company was a small office, circa 4 metres square.

On 27 March 2020, the Complainant was informed by phone call from Martin Huston, Managing Director, that he was to be put on temporary layoff due to the Covid 19 pandemic restrictions. The Complainant applied for and was granted the Covid 19 Pandemic Unemployment Payment.

On 10 April 2020, the Complainant received a phone call from his employer stating works would recommence and that he should attend a meeting on 14 April 2020, on his return to work. On 14 April 2020, the Complainant attended a meeting with Martin and Mark Houston at the Respondent's premises where he was told that they were now following the orders of the main contracting company and that the Respondent was deemed to be an essential service. At this meeting, the Complainant noted a number of safeguards, as mandated by the Department of Health, had not been put in place to prevent the spread of Covid 19 at the Respondent's premises, including the lack of a 2-metre social distancing, non-use of facemasks, lack of cleaning of workspaces and one toilet for 40 people. The Complainant raised these issues with the Respondent and the fact that the Respondent company appeared to be operating as normal despite not being an "essential service" in breach of the then Covid-19 restrictions.  He informed the Respondent that his wife was a front-line worker with the NHS.  The Complainant notified the Respondent that due to his family status, and the effect of contracting Covid-19 on him and his family, he was uncomfortable working at the Respondent premises as he was fearful of catching Covid-19 in the workplace. The Complainant stated he asked Martin Houston to comply with the Department of Health guidelines on Covid-19 but was told by Mr Houston “that’s the way it was going to be”. The Complainant was told that he could work from home between the period of 14 April to 6 May 2020.

On 6 May 2020, the Complainant claimed that he delivered drawings that he was working on to the Respondent's premises and met Martin Houston.  Upon delivering the drawings, the Complainant was informed that he was not needed anymore. The Complainant attempted to clarify his employment status/position but was advised that the Respondent company would contact him shortly to clarify his employment status/position.

Throughout the period of the 6 May to the 22 June 2020, there was no contact from the Respondent regarding his employment status.

On 22 June 2020, the Complainant received a phone call from Martin Houston who advised that there "was no work" for the Complainant. The Complainant asked for written clarification as to his employment status but to no avail. Subsequently, the Complainant discovered an advertisement posted by the Respondent advertising his job despite the Respondent having told the Complainant that there was no work for him.

On 2 July 2020, the Complainant received a letter from the Respondent stating that it was the Respondent's position that the Complainant was refusing to return to work.

On mitigation of loss the Complainant gave evidence of two positions he applied for. He said there was not a lot of work around and eventually got a position paying €400 per week in September 2021.

Cross – Examination:

In cross examination the Complainant accepted that in all other matters the Respondent was a fair employer. In answer to the question that it was his decision not to work on 14 April he said that he did intend to work until he saw the conditions. He further accepted that correspondence he alluded to in his evidence did not at any stage state explicitly that he had been dismissed.

Legal Submissions

Unfair Dismissal:

The Respondent did not provide a safe working environment with regards to the risk of infection of Covid 19 in the workplace. At the time of reopening on 14 April 2020 when the parties met, the Respondent:

·         was not an 'essential service

·         was not following the Department of Health guidelines regarding Covid-19 restrictions.

·         had not conducted any Covid 19 related risk assessments in the workplace,

·         did not have any Covid 19 related policies and procedures in the workplace, and or, had not provided any training to staff regarding Covid-19, thereby creating an unsafe working environment under the circumstances.

The Complainant complained to the Respondent as to the above breaches of the Department of Health's guidelines on Covid I9 that included a lack of 2-meter social distancing, non-use of facemasks, lack of cleaning of workspaces, etc. The Complainant also notified his employer that due to his family status; the Complainant was at high risk for Covid-19 and the effect of contraction would have on his family, especially his spouse who was a front-line worker.

The Complainant's issues over Covid-19 in the workplace, and his request to work from home, were reasonable under the circumstances and the Respondent acted unreasonably in failing to address them.

It is an implied term in any contract of employment that an employer must ensure protection from a biological hazard (and or follow State guidance on any biological hazard) as per An Operations Coordinator v A Facilities Management Service Provider ADJ-00028293 where at page 11, the Adjudicator states:

 As an infectious disease, Covid-19 constitutes a biological hazard. In this context and at the centre of this case are the duties of both employer and employee form the Safety. Health and Welfare at Work Act and the underpinning health and safety principles. Compliance with these statutory duties is an implied term of the complainant's contract of employment and significant non-compliance cold represent repudiation of that contract or mean it was reasonable for her to resign.

In the present case, it was reasonable for the Complainant to expect his employer to comply with Coivd-19 guidance and work restrictions. Furthermore, it was reasonable for the Complainant to complain to his employer for failing to comply with Covid-19 restrictions. The Respondent allowed the Complainant to work from home for a period of two weeks after the complaint (16/4/20 - 6/5/20) but:

·         did not pay the Complainant for works.

·         summarily dismissed the Complainant by stating "there was no work" for the Complainant (and subsequently denying the Complainant work),

·         and or, denied the Complainant any work from 6 May 2020 onwards.

The Complainant submits that it is reasonable for the Complainant to believe he was dismissed on the 6 May 2020 under the circumstances, where no work was forthcoming and he was not getting paid for any works, and such a dismissal was unfair under the circumstances. Furthermore, it is reasonable for the Complainant to believe his dismissal was as a direct result of his complaints to the Respondent on 14 April 2020 for not complying with Covid-19 restrictions in the workplace and or for failing to provide a safe working environment under the circumstances.

Summary of the evidence of Martin Houston (Managing Director).

The witness gave evidence on affirmation. On 27 March 2020 staff were temporarily laid off during as a result of Covid-19 restrictions. However, he was informed by the contractor they supplied, that because the Respondent company made frames for computers for data centres, this specific work could be considered essential under the regulations. He contacted a number of what he considered essential staff, including the Complainant, to carry out this project work by phone on 10 April to turn up for work on 14 April. He considered the Complainant to be a vital worker in this process.

In a discussion on 14 April the Complainant told him that he did not want to bring Covid into the factory due to his wife working in an NHS nursing home, across the border. The Complainant described measures that were put in place including 2 metre social distancing and that ‘snood’ type masks were provided for everyone. These measures were on the advice of a specially commissioned external health and safety consultancy. However, the Complainant left the premises.

On 6 May the Complainant arrived at the factory where he said he was about to do some drawings. The witness told him there was no work to do.  In the time between 14 April and the foregoing date the witness, and his son, worked hard covering the Complainant’s job. The Complainant left work again on that day without carrying out any work.

The witness referred to his letter of 2 July 2020 (exhibited) where he enquired of the Complainants position regarding coming back to work. On 22 June he rang the Complainant in response to missed calls the witness had noted on his phone.  The Complainant said to him if he could get a letter from the witness to say there was no work available for him so that he (the Complainant) could claim the Pandemic Unemployment Payment (PUP). The witness told him that he could not give such a letter under the circumstances because there was work available if he was to come back.  The Complainant replied, “If that’s you are going to go about it, you will hear more from me.”  

The witness referred to the Complainant’s letter of 16 July to him (exhibited). He referred to paragraph 2 where the Complainant states that in the phone call of 10 April the witness had agreed that there would be a discussion on the Complainant’s terms and conditions when he would return on 14 April. The witness denied that such a discussion had taken place on the phone. In further reference to that letter, the witness said that there was no agreement that the Complainant could carry out drawings at home. The witness denied ever suggesting this which he said was impractical given that the work which the Complainant carried out was hands-on supervision. The drawings can only be accurately created on the on-site computer and forms part of the Complainant’s instructions for the workers who would fabricate the frames with active direction from the Complainant.

The witness referred to the Complainant’s letter of 26 July (exhibited). The Complainant enquired as to whether he was permanently laid off. The witness said the Complainant was asked repeatedly in   correspondence to come back to work. There was never any mention of permanent lay-off. The witness said he wanted to give the man time and space. The next communication was the Unfair Dismissals complaint from the WRC of 25 September 2020.

The witness exhibited documents from an external health and safety audit concluded 4 August 2020 to show that the factory was declared fully prepared to prevent Covid infection. The witness was proud of the fact that in an area of high contraction of the virus at the time – Letterkenny - no cases of Covid-19 were recorded amongst the workforces.

The witness denied that the graduate training in the factory in the summer of 2020 was a substitute for the Complainant. That candidate was brought in on a suggestion by Intertrade Ireland to create a learning experience for the applicant. The Graduate was on 50% of the salary of the Complainant.

In response to a question as to when the witness considered that the Complainant was no longer an employee, he said it was 25 September 2020 when the WRC complaint form came in.  He never put pressure on him at any time to come back to work. He considered his walk-out to be his own doing of his own free will. He said the rumour machine around the place had it that he was working somewhere else in October 2020.

Cross-examination:

The witness stated that the Complainant was not paid for any work after 27 March. He accepted that there was no risk assessment of the premises around that date. He accepted also that there was no risk assessment between 17 April and 4 August. He said that given the unprecedented circumstances, no company was available to carry out such an assessment at that time in Donegal, however, they were in receipt of expert advice during that period.  The witness denied that he had told the Complainant to attend a meeting on 14 April. In an answer to a question as to what he did with regard to the genuine grievance raised by the Complainant on that day he said there was no disciplinary intention on that day nor was there a conflict as described. In response to the question if he agreed that a prudent and responsible employer would have initiated a disciplinary procedure, the witness said it did not occur to him.    

 Summary of evidence of Mr Mark Houston.

The witness gave brief testimony on affirmation. He said the Complainant did not mention anything to him regarding health and safety risks at the meeting of 14 April. In cross-examination he agreed that there was no formal training for staff on Covid-19 measures.

Summary of the Respondent’s Legal Argument:  

The Complainant has brought a claim under Section 8 of the Act, claiming that he was unfairly dismissed from the Respondent Company. This is strongly disputed by the Respondent.

 Dismissal is defined in the Act at section 1 as: –

“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……

The Respondent submits that in circumstances where the Complainant’s employment has neither been terminated nor resigned, it is unclear where the substantive basis of the claim lies.  It is submitted that the dismissal is in dispute and the Complainant has not claimed Constructive Dismissal.  In this regard, the Respondent refers to the Labour Court decision of Longford Co Co v Joseph McManus, UDD1753, where it was held:

“As a dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined”

 It is the Respondent’s position that the company at no time pressurised the Complainant into returning to work.  The Respondent did not seek to engage the Complainant in a disciplinary process but instead gave the Complainant a more than reasonable amount of time to return to work. It is submitted that the communication on behalf of the Respondent was merely to gauge when the Complainant would be in a position to return to work.

The Respondent refers to the WRC decision in respect of an employee’s refusal to work and an employer’s decision not to engage in disciplinary action in the context of the pandemic in Derek Keenan -v-An Post, ADJ-00030607:

“While the complainant refused to carry out his deliveries on the day in question, his concerns were taken on board by management….I also note that no disciplinary action was initiated in respect of the complainant”

The Respondent refers also to the Tribunal decision in Barry v Precision Software Ltd. (UD 624/2005) [2006] JIEC1801 the Tribunal said:

“… It is not for the Tribunal to intrude into the Respondent’s managerial decisions. The Tribunal has to look at what a reasonable employer would do in the circumstances. Neither is it for the Tribunal to consider what sanction it would impose. The Tribunal’s function is to decide whether the employer’s reaction and sanction came within the range of responses, which a reasonable employer might make.”

The Respondent submits that although this decision was issued in the context of an undisputed dismissal, the sentiment of the decision should be read in light of the Respondent’s circumstances. These circumstances were, in the context of a worldwide pandemic and an uncomfortable employee, the Respondent did not know the correct course of action and chose to maintain contact with his employee and gauge a date of when he is likely to return. At no time did the Respondent pressurise the Complainant to return to the work premises. The Respondent submits that the last communication between the parties was from the Complainant claiming his position had not changed, and that he was not returning to work. The Respondent submits that it was his intention to check back in with the Complainant after a number of weeks to see when he would be returning to work.

The Respondent submits that the Respondent never indicated that the Complainant’s position was not available within the company. The Respondent submits that there was no written exchange or conversation which could have led the Complainant to determine he had been dismissed.      

The Respondent submits that the only conversation held in respect of the Complainant’s ’s employment was on 22 June 2020, when the Complainant requested a letter for the Pandemic Unemployment Payment. This conversation cannot be said to be a termination of employment. Correspondence post-dating this event confirms same. In circumstances where the basis for the Complainant’s claim has not been stated, the Respondent refers to the Employment Appeals Tribunal’s decision regarding statements that may amount to a termination of employment, in the matter of Devaney -v- DNT Distribution Company Ltd, UD 412/1993:

“…what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”  

Fact of Dismissal:

This case pivots around the fundamental issue of whether an actual dismissal, as defined by the Act, has taken place. If I find that there was an actual dismissal then it is for me to determine whether the dismissal was unfair, as the Complainant alleges. It is well established that the initial burden of proof falls upon the Complainant to establish the fact of dismissal, when such a fact is at issue. The Complainant is not claiming constructive dismissal.

 A complaint of unfair dismissal referred under Section 8 of the Act requires a dismissal to have taken place as a requirement by virtue of Section 6 which provides:

” Section 1 of the Act defines “dismissal” in relation to an employee in the context of a complaint of unfair dismissal as:

(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……

It is common case that here was no explicit statement, written or verbal, from Mr Martin Houston to the Complainant to signify that his contract of employment was terminated per se, outside of an allegation by the Complainant that the Respondent had told him that there was no work for him in a conversation at the workplace on 6 May 2020.

The events of 14 April 2020 are important. The Complainant stated in evidence that he brought health and safety concerns to the attention of Martin Houston. He stated that he had issues regarding the Covid-19 measures that were in place, referring amongst other things, to the lack of a 2-metre social distancing, non-use of facemasks, lack of cleaning of workspaces and one toilet for 40 people, amongst other things. Martin Houston categorically denied that health and safety issues were raised by the Complainant that day, as did Mark Houston.  Martin Houston further pointed to the fact that they were advised on measures to combat the pandemic by an external independent consultancy and ‘snood masks, proper distancing guidelines and refillable hand sanitisers were in place. The Respondent also posted Covid-19 guideline posters which, it was stated and not denied, that the Complainant had knowledge of, at a prior management meeting. I preferred the evidence of the Martin and Mark Houston who came across as more plausible witnesses to the events of 14 April. Both the Complainant and the Respondent agreed that the Complainant, on that day, informed the Houstons that his wife worked in a nursing home and that he was afraid that he might bring Covid into the factory. However, it has been established that there were no Government guidelines to deal with that circumstance. The question arises then as to whether it was reasonable for the Complainant to walk off the premises. I don’t believe it was. Firstly, I am satisfied that the Respondent had done all that was possible under extremely challenging and everchanging circumstances. Evidence was given that, during the material time covering this complaint, no Covid-19 cases were recorded at the factory in a geographical area which had one of the highest infection rates at that time.  Secondly, an unrealistic ultimatum was put to the Respondent that either the Complainant worked from home or did not work for the Respondent and continued to be laid off. There was convincing evidence that working from home was not an option for the Complainant as the supervisory aspect of his role necessitated the Complainant to be physically present to complete his work, as the computer with all the files necessary to complete the particular drawings was located in the Respondent’s office.

The Complainant has alleged that the Respondent advertised a role similar to his own. I am satisfied based on the evidence heard, that such a role was an internship position for a graduate, which was solicited by an external training body, and that such a graduate was not given the supervisory position of the Complainant. 

The Complainant had originally stated in the complaint form that he considered his date of dismissal to be 27 March 2020 but during proceedings this was changed to 6 May 2020. On that day the Complainant claimed that he delivered drawings he was working on to the Respondent's premises and met Martin Houston.  Upon delivering the drawings, the Complainant claims he was informed that he was not needed anymore. The Complainant attempted to clarify his employment status/position but was advised that the Respondent would contact him shortly to clarify his employment status/position. Martin Houston asserted that the Complainant had said that things had not changed in that his wife was still in the same position and that he took it that the Complainant did not want to return to work. The happenings of this day, and the question of whether the Complainant could reasonably consider himself to be dismissed, must be seen through the prism of the further phone calls and correspondence.

 On the happenings of 22 June 2020, Martin Houston gave uncontested evidence of what transpired in a returned phone call. The Complainant asked for an update regarding work. Martin Houston informed the Complainant that work had slowed down in the factory. He gave further evidence that the Complainant proceeded to ask the Respondent for a letter stating that he was laid off as a result of the current pandemic. Martin Houston refused, telling him that he could not give such a letter under the circumstances because there was work available.   The Complainant replied, “If that’s how you are going to go about it, you will hear more from me.”  I am satisfied that the Complainant’s request for an update at work and a wish for a letter of lay-off so that he could continue to avail of the PUP payment, signified that the Complainant did not consider himself dismissed seven weeks earlier on May 6, 2020.

Copies of correspondence were exhibited which could be summarised as follows:

The Respondent prepared a letter dated 2 July 2020, confirming that the Complainant had been required to return to work on 14 April 2020 and asked therein for the Complainant to confirm in writing, his reasons for failing to return, and his current situation on whether he could return to work or not. The Complainant replied on 16 July, giving reasons of health and safety issues as to why he was not returning. The Respondent replied on the 23 July 2020, asking for confirmation on the Complainant’s current reasoning on the matter of his return to work.

 In the Complainant’s response on 26 July 2020, he confirmed that his opinion remained unchanged, and he would be adhering to the public health guidelines. The Respondent further received an email from the Complainant dated 24 August 2020, in which he asked the Respondent to confirm his status.

The Respondent opened Devaney -v- DNT Distribution Company Ltd, UD 412/1993:

“…what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”

I do not believe that the Complainant could reasonably infer that he was at any stage dismissed before the submission of the complaint to the Workplace Relations Commission on 25 September 2020. It seems to me that the extraordinary circumstances accompanying the Covid-19 pandemic allowed the Complainant to erroneously think that his decision to work or not work was arbitrarily his. I conclude that the Complainant’s actions of walking off the job on 14 April when convincing evidence showed that adequate measures were in place under very challenging circumstances, was unreasonably impulsive.

The Complainant claimed that he deemed himself dismissed on 6 May 2020 but the evidence showed that seven weeks later he sought a letter from the Respondent to suggest that he had been laid off as a result of Covid-19 so that the Complainant could continue claiming the PUP benefit.  I found such a position to be inconsistent when weighed against his complaint of unfair dismissal. Furthermore, I am satisfied that the Respondent took every reasonable step to inform him that his job remained open if he wished to return and put no undue pressure on him in light of the general uneasiness surrounding the evolving pandemic crisis.  The evidence shows that the Managing Director, to his credit, did not seek confrontation but instead repeatedly gave the Complainant the opportunity to return to work. I cannot find that there was a termination of the employment contract by the Respondent in such circumstances.

Having considered all the evidence and submissions in this case I find that the Complainant did not establish the fact of dismissal as defined under section 1 of the Act by way of termination of the contract of employment by the Respondent, therefore I cannot uphold the complaint of unfair dismissal. 

CA-00040078-001: Having considered all the evidence and submissions in this case I find that the Complainant did not establish the fact of dismissal as defined under section 1 of the Act by way of termination of the contract of employment by the Respondent, therefore I cannot uphold the complaint of unfair dismissal. 

Fact of Dismissal, Unfair Dismissals Act 1977, Covid-19.