Complainant

Respondent

Parties

Brian  Connolly

Coldwinter Garden Centre Ltd

Representatives

  N/A

Susan Jones BL instructed by Jones Magee Solicitors

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-00036343-001

25/05/2020

The Complainant commenced employment with the Respondent on 27th April 2018 and was paid a salary of €412 per week. He claimed that he was dismissed on 23rd May 2020. The dismissal is disputed by the Respondent.

The Complainant was laid off because of Covid-19 in March 2020. He stated that he was led to believe that it was temporary until restrictions were lifted and that his employment would continue as normal when these were eased. He was asked back to work on Tuesday 19 May 2020 and worked without incident until Friday 22 May when he arrived 5 to 10 minutes late. He stated that Mr F immediately and aggressively confronted him in front of staff members and customers which he alleged was belittling.

Upset and humiliated and unable to face anyone, the Complainant left the premises to compose himself and asserted that he had no intention of quitting. He stated that he returned about an hour later to speak with Mr F to resolve the situation because he wanted to go back to work as normal. Mr F told him however that he would talk to him later as he went to serve customers. Despite waiting for Mr F to do so however, he did not speak to him and as a result the Complainant left the premises and returned home. He stated that when he returned home he called and then texted Mr F to call him but he did not respond.

At 17:50pm that day he finally got through to Mr F after a few unanswered calls and was told that he was dismissed. On hearing this news, the Complainant was shocked and asked if the owner knew about it because Mr F did not have the authority to dismiss him. Mr F stated that the owner did know. The Complainant stated that he tried to understand and discuss the decision but Mr F hung up on him and wouldn’t answer his phone when he tried to call back. He stated that he also tried to contact the owner via Whatsapp, email and phone calls but received no response.

The following day both the Complainant and his father went into the business to try to discuss the situation as neither Mr F or the owner were responding to their calls or text messages. While there was a quiet moment at the till he asked if he could discuss the matter once again with Mr F but was treated with hostility and aggression. When his father mentioned the rights he was entitled to, Mr F told him to “stay out of this” and that “it’s none of your f***ing business.” The Complainant stated that Mr F became out of control and furious when he tried to question him further and that they had no choice but to leave the premises.

The Respondent stated that the Complainant was placed on temporary lay-off in March 2020 as a result of the Covid related lockdown. Following the re-opening of the garden centre, the Complainant resumed work on May 19th 2020 and was repeatedly requested to ensure that he was no longer in receipt of the Pandemic Unemployment payment. Having failed to confirm this, the Complainant stated, in a verbal altercation with the Respondent on 22nd May 2020 over his late arrival at work, that it was no longer worth his while working there and left the premises.

He subsequently returned a short time later seeking his letter of dismissal but was told by the Respondent that he would not receive same because he had not been dismissed. He subsequently telephoned the Respondent again that evening seeking a letter of dismissal and was again told that this would not be issued because he had not been dismissed.

He then attended the Respondent’s premises the following day with his father, the Complainant in ADJ 28430, once again requesting the letter of dismissal but was told that that the Respondent would not be issuing same because he had not been dismissed.

The Law

Section 1 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows: (1) In this Act—

• “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, or(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

Analysis

Dismissal as a fact is in dispute and therefore it is for the Complainant to establish that a dismissal in line with the definition set out under the Act occurred.

While there is disagreement between the parties as to the events, the following is noted;

·       The Complainant was in receipt of €370 net per week while he was working with the Respondent and no evidence was produced to demonstrate that he had ceased claiming the Pandemic Unemployment Payment of €350 per week after he recommenced employment on 19th May 2020.

·       The Complainant was not asked by the Respondent on 22nd May to leave the premises at any stage and according to his evidence was dismissed in a phone call that he (the Complainant) made to the Respondent that evening.

·       The Complaint stated that he did not accept that Mr F was the manager of the Respondent’s premises because he had never been told that this was the case and that he did not therefore have the authority to dismiss him.

·       In his correspondence on 23rd May, the Complainant did not make the owner aware of the nature of his dismissal and did not clearly say that he had been dismissed. Specifically, he said “I was not dismissed in person or given any notice. I have not received written notice of dismissal or given formal verbal or written warning of what I’ve been accused of. If you have these documents, I need them posted to me as soon as possible.”

Having carefully considered the submissions made, and having regard to the above key points, I prefer the Respondent’s version of events. Moreover, while the failure of the owner to enquire or respond to the Complainant’s messages is notable, it was not clear from the correspondence sent to him by the Complainant that he was actually dismissed, and the failure of the owner to reply cannot therefore in and of itself equate to a dismissal.

In light of the foregoing, I find that no dismissal took place.

I find that the Complainant was not unfairly dismissed for the reasons set out above.