Complainant

Respondent

Parties

Daragh Bolton

Stobart Air UC In Liquidation

Representatives

Not represented

Not represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00040468-001

18/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00040468-002

18/10/2020

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

CA-00040468-003

18/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00040468-004

Withdrawn

18/10/2020

In August 2017, the complainant commenced working for the respondent in the role of head of security.  Almost immediately following the onset of the Covid-19 pandemic in March 2020, he was laid off.  On the e-complaint form he submitted to the WRC, he said that his employment was terminated on September 29th 2020, although the documents submitted by the respondent show that his was dismissed on August 14th 2020.  The complainant argues that, as his role was a mandatory position which must be carried out under the national civil aviation security programme requirements, he should not have been laid off.  From September 2018, when he went from being part-time to full-time, he said that he was not paid his full wages.  He also claims that his dismissal was unfair.

Chronology

The complainant’s contract of employment was submitted in evidence by the respondent and it shows that the complainant commenced employment as security manager on August 8th 2017.  His contract makes no mention of his hours of work or his salary.  At the hearing, the complainant said that when he started, he was required to work two days a week and he was paid an annual salary of €30,000.  He said that while he worked for the respondent, he also did other work.

In March 2018, the complainant said that he agreed to work three days a week in return for an annual salary of €45,000.  In September that year, following representations to the respondent by the Irish Aviation Authority (IAA), he said that he moved to a five day week and he agreed to a salary of €75,000, based on a proportional increase in his original two-day week contract of €30,000.  He said however, that he was only paid €60,000, equivalent to the value of four days a week.  In March 2019, the complainant said that he got an increase to €60,900.  He said that his new hours of work and his new salary were never confirmed in writing. 

In March 2020, with the grounding of aircraft due to the Covid-19 pandemic, the complainant and many others were laid off.  He claimed the Pandemic Unemployment Payment.  He said that the company retained the employees who carried out mandatory functions as required by the IAA.  His role was a mandatory function, and he said that it was carried out by his deputy, who, he claims, was not fully qualified to do the job.

In the documents he submitted after the hearing, the complainant included a copy of his contract of employment with his new employer.  He signed this contract on July 1st 2020, although his start is effective from June 15th.

On July 17th 2020, the complainant said that he was contacted by the respondent’s head of HR and asked to come back to work.  A copy of an email submitted after the hearing shows that the head of HR informed the complainant that the company could not pay everyone their contracted wages and she suggested that he should come back for two days a week on a salary of €19,488, which was 20% of his five-day salary of €60,900.  She also indicated that, if he was required to return to work on a full-time basis, his reduced salary would be €48,720, a reduction of 20% of his five-day salary of €60,900.

The complainant replied on the same day and said that would be willing to return to work full-time, but that if he was returning part-time, he would require €30,000 for two days a week.  In a follow-up email later on July 17th, the complainant said that he felt that there was enough work for him to return three days a week and to gradually phase up to five days.

On Saturday, July 18th, the head of HR confirmed that the complainant could return to work for three days a week, worked consecutively, on a salary of €29,232.  The complainant replied the following day and said that he needed to do additional work and that he needed flexibility with regard to his work schedule and that he could not agree to three consecutive days.

On Monday, July 20th, the head of HR wrote to the complainant and said that it would be acceptable if he worked two consecutive days plus another day.  He was instructed to inform her of the name of his other employer, and the number of hours he was working there.

On Tuesday, July 21st, the complainant wrote to the head of HR and said that he couldn’t disclose the name of his other employer, for reasons of confidentiality.  He said that he was contracted to work for the respondent for only two days a week.  He said that he was committed to working for the respondent and that he would “allocate sufficient resources to fulfil my contractual requirement” and that he would be on call 24/7 for 365 days a year.  He said that he could come back to work on August 1st.  At the end of his email, he suggested that he could work as a contractor and invoice the company on a monthly basis.

The head of HR replied on the same day, and reminded the complainant that he had been working full-time since September 2018.  She said that he should return on a three-day week basis, with two days being worked consecutively.

The complainant replied the same day and said that, while his hours had increased since early 2018, his only contract of employment specified that he was required to work for two days a week.  He also complained that when he moved to a five day week in September 2018, he had been promised a salary of €75,000, but he was paid €60,000.  The head of HR repeated the position that the complainant had been a full-time employee and that he was to return for three days a week.  The complainant replied again reiterating that he had a contract for two days a week. He repeated his suggestion that it may be beneficial if he was a self-employed contractor.  The head of HR repeated her request to the complainant to return for three days a week, two of which were to be worked consecutively, on a salary of €29,232.

On Wednesday, July 22nd, at 11.13, the complainant wrote to the head of HR and asked for a written contract confirming the terms on offer.  At 13.54, he wrote to clarify his position.  He said that he was in a position to return to work for two days a week and that the two days would not be consecutive.

On Monday, July 27th, the head of HR repeated the offer of three days a week, on the terms she had stated previously.

The complainant wrote the following day and repeated that he was in a position to return for two days a week, and that, in his view, for operational reasons, it was not necessary for the two days to be consecutive.  He suggested that the head of HR was engaged in “bullying and intimidation tactics by presenting ultimatums.”  He asked for confirmation in writing of the terms on offer.  Finally, he asked the head of HR to address what he considered to be the shortfall in his wages from September 2018 and the failure to pay his expenses.

On Saturday, July 30th, the head of HR replied and informed the complainant that he had been working under an implied contract since September 2018, which required him to attend for work for five days a week on a salary of €60,900.  She repeated the offer of employment for three days a week, on a salary of €29,232, and for two of the days to be consecutive.

On Friday, July 31st, the complainant wrote to the head of HR and complained that he had never satisfactorily resolved his five-day wages issue.  He said that he was “merely seeking resolution to this immediately prior to resuming my contracted post as head of security from Aug 1st 2020.”  Less than an hour later, he wrote again complaining that his five-day salary had not been paid on a pro-rata basis with his two-day week salary.  He said that his request for a pro-rata salary was “point blank refused” on three occasions by the managing director.  He said that his understanding now was that he would be dismissed if he did not agree to the terms on offer of three days a week for €29,232.

On Tuesday, August 4th at 9.26, the complainant wrote to say he hadn’t got access to the company’s computer system so that he could resume working.  The head of HR wrote to say that he would have to confirm acceptance of her offer of three days a week on a salary of €29,232, with two days to be worked consecutively.  The complainant replied and said,

“I am in a position to return to my post from Aug 1st 2020 as I stated multiple times.

“Please respond to my previous email in full so I can fully understand the company position on the number of questions I raised on 31/08/20 (there is an error in the date, which should have stated 31/07/20) at both 12.04 and 12.08.”

The head of HR replied on August 5th, addressing each of the issues raised by the complainant.  She said that, in September 2018, while a full-time salary of €75,000 had been proposed by the Head of Compliance and Security, it was not approved by the Chief Operating Officer, and this is the reason the complainant’s salary remained at €60,000 (increased to €60,900 in March 2019).  The complainant replied the following day, countering the explanations provided and reiterating his grievance about his full-time salary.  He said that he expected:

“1.  Reinstatement on my existing contract as previously stated

2.  Payment of the outstanding salary from 01 Sept 2018 to 31 Mar 2020 with immediate effect

3.  There seems to be no point in pursuing my previously refused expenses but I expect by Q120 expenses, submitted to be paid in full with immediate effect.”

On Friday, August 7th at 8.08, the head of HR sent the complainant an email asking him if he was available for a video call with her and the managing director at 14.00.  He replied saying that he didn’t see how a meeting would be beneficial and he said that email is appropriate to address the issues.  The head of HR wrote again at 11.14 and asked the complainant to suggest a time that he was available.  The complainant replied and said,

“If you respond to my last email with the final company stance on all matters I will review it and we may then set up a meeting next week depending on the content.

“I don’t see a face to face resolving this from where we are.”

The head of HR replied and said that the points raised by the complainant would be addressed on a call and she asked him again to suggest a time that he was available.  She then scheduled a meeting for Tuesday, August 11th at 16.30.  The complainant replied and said that he would be available on Thursday, August 13th between 14.00 and 18.00 but that he would appreciate a response to his queries in advance. 

A meeting took place over Microsoft Teams on Thursday, August 13th.  From her email to the complainant after the meeting, it is apparent that the head of HR was joined on the call by the managing director and the complainant attended alone.  In her email, the head of HR reiterated that the salary for the five-day job of security manager is €60,900.  She said that the complainant was now required to work initially for two days consecutively and one other day.  In relation to the three points raised by the complainant in his email of August 6th, the head of HR wrote:

“1.  Reinstatement on my existing contract as previously stated – This is not an issue of reinstatement, this is returning to work based on company’s requirement initially a 3 day week and as per terms and conditions as previously outlined.

2.  Payment of the outstanding salary from 01 Sept 2018 to 31 Mar 2020 with immediate effect – There is no outstanding salary owed and therefore, no payment will be made.

3.  There seems to be no point in pursuing my previously refused expenses by I expect by Q120 expenses, submitted to be paid in full with immediate effect.” – We can deal with this point separately, they will have to be reviewed.

The head of HR again asked the complainant to return to work initially for three days a week on a salary of €29,232.  She asked him to confirm by midnight if he was accepting the terms offered.  When she received no response, at 12.09 the following day, August 14th, the head of HR wrote to the complainant and said that she “can only conclude that you no longer wish to work for Stobart Air and have thus abandoned your employment.”  She asked him to contact her immediately if he felt that he had not abandoned his job.  At 15.17, the complainant wrote to day that he was available to return to work on his existing contract issued in August 2017.  He said that the implied contract referred to by the head of HR, whereby he worked for five days a week from September 2018 “does not apply here as both parties did not have an agreement of understanding that created an obligation.”  He said that he did not accept the wage reduction offered for the three day week job, but that he would work two consecutive days.

At 17.58 on August 14th, the complainant wrote to the head of HR saying that he heard that the managing director told a group of employees in a meeting that he would not be returning to his job.  He said that this was unacceptable, had caused him stress and pressure and that it indicated that the managing director did not want him to return to work.

On Monday, August 17th, the head of HR wrote to the complainant and said, “Your actions deem that you have abandoned your employment.”  The complainant replied and said that he was available to return, “as per my email on Friday.”  On Thursday, August 20th, the head of HR wrote and said,

“My email of August 13th last reiterated the company’s position which has been put to your clearly on numerous occasions.  You either fail or refuse to accept that position and have steadfastly refused to return to work, except on your conditions.”

She went on to say that the complainant had been removed from the payroll, but that he could appeal that decision by setting out his position in writing to a named director of the company within five days.  On August 20th, the complainant replied and said that he felt that there was no point in appealing and that he would make a complaint to the WRC.

While this complaint was submitted under the Terms of Employment (Information) Act 1994, the complaint is about the non-payment of wages during the period when the complainant was laid off from March 2020 until his employment was terminated on August 14th 2020.

For the respondent, Mr Quinlan said that at the start of the pandemic, there were large-scale lay-offs in the airline industry as aircraft were grounded.  The complainant and others were laid off.  The company retained employees that were required for IAA functions.

The complainant is seeking payment of his wages for the duration of the period when he was laid off as a result of the Covid-19 pandemic.  The Terms of Employment (Information) Act is not the correct legislation under which to adjudicate on this issue.  The same complaint has been submitted under the Payment of Wages Act 1991, which I will consider next. 

For the reasons set out above, I decide that this complaint is not well founded.

Wages for a Five-day Week

The complainant is seeking payment of a wage increase from September 2018 to March 2020, which, he claims, amounts to €22,500.  His case is that, in September 2018, when he agreed to increase his working days from three days to five, his salary should have increased to €75,000.  He claims that his initial contract of employment provides that his salary is €30,000 for two days a week, and that this should have increased on a proportionate basis for five days, to €75,000.  After he commenced working five days a week in September 2018, the complainant’s salary was increased to €60,000. He said that he queried this with the head of compliance on numerous occasions, and that his response was that “it was being worked on.”  In 2019, when the head of compliance when absent due to illness, the complainant said that he queried his “salary shortage” with the managing director, but that the managing director refused to discuss the issue.  In March 2019, his salary was increased to €60,900 for five days.

Wages During Lay-off

The complainant’s case is that he should not have been laid off, because it his role was mandatory under the national civil aviation security programme requirements.  He submitted no evidence regarding these requirements, and no details regarding the mandatory nature of his job.  He argues that, as he should not have been laid off, he is entitled to wages of €20,375 which were not paid to him for five months from March 2020 until August 2020.

Wages for a Five-day Week

The respondent’s position is that, from September 1st 2018, the complainant commenced working for five days a week and that his salary was €60,000, which increased to €60,900 on March 1st 2019.  While a new contract of employment was not drawn up in September 2018, the respondent’s case is that the complainant worked for the respondent for €60,000 and then €60,900 and that these are implied terms.

Wages During Lay-off

As the representative of the liquidator, Mr Quinlan was not in a position to provide details on the roles that are determined as mandatory by civil aviation regulations.  At the hearing, he said that, with the grounding of aircraft in March 2020, the complainant and many others were laid off.  Employees who were required for IAA functions were retained. 

Wages for a Five-day Week

This complaint is about an alleged breach of the Payment of Wages Act that commenced on September 1st 2018 and which ended when the complainant was laid off in mid-March 2020.

Section 6 of the Workplace Relations Act 2015 sets out the timeframe within which complaints may be submitted for adjudication:

“…an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

An extension of time is provided for at subsection 8 of this section:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

It is clear from this section of the Workplace Relations Act that, “for reasonable cause,” an extension of the time limit from six months to 12 months for submitting a complaint may be permitted.  The complainant did not submit an application for an extension of the time limit.

This complaint was submitted to the WRC on October 18th 2020, and the timeframe within which I can consider that a breach of the Payment of Wages Act may have occurred is from April 18th 2020 until October 17th 2020.  The complainant’s case is that the alleged failure to pay him an increase in his wages ended when he was laid off in March 2020, and therefore, his complaint has been submitted outside the legal time limit for submitting a complaint.

For completeness, I wish to briefly address the complainant’s claim.  It is apparent that he expected that his wages for five days a week in September 2018 would be based on the agreement in his contract of August 2017 to work two days a week for €30,000, giving him an extrapolated annual salary of €75,000.  While he submitted no hard evidence in support of his contention that his manager at the time supported his expectation, it is clear that  the managing director never agreed that he would be paid €75,000, but rather, his five-day salary was €60,000 which was increased to €60,900 in March 2019.  The complainant expected to be paid more than €60,900, but he was not paid less than the amount due to him.  For this reason, I find that there is no merit in his claim that, in breach of section 5 of the Payment of Wages Act, his employer made an illegal deduction from his wages.

Wages During Lay-off

It is not my role to adjudicate on the requirement for airlines to retain certain roles in order to comply with aviation regulations.  The fact is that, in March 2020, the complainant was laid off from work as a result of the impact of the Covid-19 pandemic on the industry in which he was employed.  My task is to consider if, by not paying him his wages during the period of lay-off, his employer is in breach of section 5 of the Payment of Wages Act 1991.

The Relevant Law

The concept of lay-off is defined at section 11 of the Redundancy Payments Act 1967:

“(1)  Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and -

“(a)  it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

“(b)  the employer gives notice to that effect to the employee prior to the cessation,

“that cessation of employment shall be regarded for the purposes of this Act as lay-off.”

Under the heading, Lay-Off / Short-Time, the complainant’s contract of employment contains the following provision:

“The company reserves the right to lay you off from work or reduce your working hours where, through circumstances beyond its control, it is unable to maintain you in employment.  You will receive as much notice as is reasonably possible prior to such lay-off or short-time.  You will not be paid during the lay-off period.  You will be paid only in respect of hours worked during a period of short-time.”

The question of whether wages are payable in these circumstances is addressed at section 5(6) of the Payment of Wages Act 1991:

“Where –

“(a)  the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefore that fall to be made and are in accordance with this Act), or

“(b)  none of the wages that are properly payable to an employee by an employer on any occasion (after making any deductions as aforesaid) are paid to the employee,

“then, except insofar as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on that occasion.”

Findings

I accept the respondent’s rationale for laying the complainant off in March 2020 when the airline sector was shut down due to Covid-19 restrictions.  While he was laid off, the complainant claimed the Pandemic Unemployment Payment.  The design and introduction of this wage support scheme recognised the fact that many businesses would not be trading and employers would not be in a position to pay wages.  Implicitly, the introduction of the scheme acknowledges that lay-off occurs when an employer’s business is reduced and that an employer has no obligation to pay wages during a period of lay- off.

This issue was addressed by the Labour Court in the case of William P Keeling & Sons Unlimited Company and Barbara Ciszewska[1].  Ms Ciszewska was a fruit picker and her contract provided for the possibility that she may be laid off if there was no work in that seasonally-impacted business.  The Court noted that Ms Ciszewska’s complaint was under the Payment of Wages Act and the issue for consideration was not the fairness or otherwise of the decision to lay her off, but whether there had been an illegal deduction from her wages.  Considering Ms Ciszewska’s claim, the Labour Court concluded that,

“There is no provision in the Payment of Wages Act that requires that wages be paid in periods of lay-off.”

The statutory entitlement of an employer to lay off an employee when there is no work is provided for at section 11 of the Redundancy Payments Act.  It is clear from the case law that there is no provision for the payment of wages during a period of lay-off.  Finally, I note that the complainant’s contract of employment provides for lay-off without pay.

Conclusion

Having considered this matter and,  having reviewed the case law and, it is clear to me that, during a period of lay-off, when an employee does no work for his or her employer, wages are not “properly payable,” and the failure to pay wages is not an illegal deduction.

In respect of these complaints under the Payment of Wages Act 1991, I decide as follows:

I have no jurisdiction to adjudicate on a claim for an annual salary of €75,000 from September 1st 2018 until March 2020, because the complaint was submitted outside the legal time limit which is set out at section 6 of the Workplace Relations Act 2015.

The complainant’s claim for payment of his wages while he was laid-off between March and August 2020 is not well founded.

In his evidence at the hearing of this complaint, Mr Quinlan said that the head of HR wrote to the complainant on July 17th 2020 and proposed that he return to work on a part-time basis for two days a week.  At that time, the company was availing of the Employers Wages Subsidy Scheme, and they were not able to pay employees their normal wages.  It was proposed that the complainant’s annual salary of €60,900 would be reduced by 20%, resulting in a new annual salary of €48,720, and that, for two days a week, he would be paid €19,488.

At the outset of their “over and back” emails from July 17th until August 14th 2020, the complainant said that he would return to work for two days, but that he wanted to be paid €30,000.  He then agreed to return for three days, but he refused to work on consecutive days.  The argument then moved on to a claim for a pay increase to €75,000 to be paid retrospectively with effect from September 1st 2018. 

On July 19th, the complainant wrote to the head of HR and told her that he was contractually obliged to tell her that he “will need to take up additional work outside of Stobart Air.”  In an email on July 21st, he said that he couldn’t name his other employer and that “the hours are flexible and fluctuating.”  He suggested that “the option of converting to a consultant may be the most cost-effective option,” but this was declined.

On July 30th, the head of HR wrote to the complainant and confirmed an offer to him to return for three days a week, with two days being consecutive, on a salary of €29,232.  The following day, he repeated his request for a resolution of his claim for a salary of €75,000 for five days.  He said,

“Again I have not abandoned my employment or contract I am merely seeking resolution to this immediately prior to resuming my contracted post of head of security from Aug 1st 2020.”

He repeated this in an email of August 4th, listing his three expectations:

“1.  Reinstatement on my existing contract as previously stated

2.  Payment of the outstanding salary from 01 Sept 2018 to 31 Mar 2020 with immediate effect

3.  There seems to be no point in pursuing my previously refused expenses but I expect by Q120 expenses, submitted to be paid in full with immediate effect.”

On August 13th 2020, the complainant attended a meeting over Microsoft Teams with the head of HR and the managing director.  He was informed that he was required to return to work for three days a week and that his salary would be €29,232.  He was also informed that no salary was due to him in relation to an expectation of an increase to €75,000 in September 2018.  These details were confirmed in an email in which the head of HR asked him to indicate by midnight if he would return on the terms she had set out.  When he didn’t reply, on August 14th, the head of HR wrote to the complainant at 12.09 and told him that if he didn’t reply by 17.00, he would be removed from the payroll.  At 15.17, the complainant wrote to say that he was available to return to work on the terms of the contract issued to him in August 2017, of two days a week for €30,000.  He said that he would not accept the reduction in his wages.

Concluding his evidence, Mr Quinlan said that the complainant was asked to return initially for two days a week.  This was then increased to three days.  If the airline business had opened up again, he would have been required to return on a full-time basis and his wages would have been increased.   Finally, Mr Quinlan pointed out that the complainant did not notify the respondent that he had taken up alternative employment in June 2020.

On Saturday, August 22nd 2020, the complainant sent an email to the head of HR, and copied the managing director, the board member who was selected to hear his appeal, and three other senior executives.  While he complained about how he was treated by the company, he did not request an appeal of the decision to terminate his employment. 

In his evidence at the hearing, the complainant said that, at the end of August 2020, he was accepting the conditions for his return to work.  He said that he knew his job was at risk and he had engaged with the company about his return.  On August 14th 2020, he heard that the managing director told staff that he would not be coming back.  He said that he disputes the company’s contention that his acceptance of a salary of €60,000 in September 2018 and €60,900 in March 2019 implies that he consented to these amounts.  He said that he accepted the conditions for his return to work, apart from the dispute about his salary.   He said that he told the head of HR that he would get legal advice on the matter.

At the conclusion of his evidence, the complainant said that his intention was always to come back to Stobart Air.  Then he said that he had no intention of coming back “unless they offered me my wages that I expected.”

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 – 2015 (“the Act”) provides that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4)(b) of the Act provides that;

“…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from …the conduct of the employee.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case.  The email from the head of HR at 12.09 on August 14th 2020 sets out the reason for the complainant’s dismissal:

“In the absence of a reply from you we can only conclude that you no longer wish to work for Stobart Air and have thus abandoned your employment.  If by any chance you do not consider this is the case, then please contact me immediately but no later than 17.00 hours Friday, 14 August 20202.

“Accordingly, I have asked payroll today to complete the necessities to formalise your removal from payroll.  You will be paid for any accrued unused annual leave up until the end of March 2020.  From our calculations the balance of leave due is 5.25 days, total due, €1,229.71.”

Was it Reasonable to Dismiss the Complainant?

There are many precedents where the issue of the reasonableness of an employer’s decision to dismiss an employee are examined.  My role here is to consider if, as set out in Pacelli v Irish Distillers Limited[2],the respondent’s decision to dismiss the complainant was consistent with what “a reasonable, prudent and wise employer would have done having regard to the nature of the case.”

The facts are as follows:

On July 1st 2020, the complainant signed a contract of employment for a role as a “Permanent Full-time Head of Security” with a new employer.  His contract states that his employment is effective from June 15th 2020.  At the hearing, he said that he applied for this job in January 2020, two months before he was laid off.  When he was laid off, he started working with his new employer, but he did not inform the respondent.

It is apparent therefore, that when he was in correspondence with the respondent’s head of HR from July 17th until August 14th 2020, the complainant was employed on a full-time basis in a senior role with another organisation.  He was not available to work for the respondent, unless some arrangement could have been arrived at for him to work in the evenings and at weekends.  He did not reveal the scope of his commitment to the head of HR.  His suggestion that he could work as a consultant seems to fit with an objective to work full-time for his new employer and to provide an out of hours service to the respondent.

As he started in a new job in June 2020, it is my view that the complainant had no intention of returning to work with the respondent, although he denied this at the hearing.  He then contradicted himself and said that he had no intention of going back unless he was offered the wages he expected.

When I examine the four weeks of correspondence in July and August 2020, it is clear to me that the objective of the complainant’s engagement with the respondent was to extract some concession regarding his aspiration to be paid an annual salary of €75,000 from September 2018.  No amount of clarification from the head of HR to the complainant regarding the terms of his return would have persuaded him to return.  I find that his conduct in that correspondence was less than forthright.

The fact that the complainant did not appeal the respondent’s decision to dismiss him indicates to me that he was not seriously committed to the prospect of returning to work, and further, that he had no confidence that his appeal would be upheld.  His failure to appeal is fatal to his argument that he has been treated unfairly.

Conclusion

I have examined documents submitted by both sides before the hearing of this complaint and in the weeks after the hearing.  I have also considered the oral evidence of the complainant and the representative of the liquidator.  It is my view that, confronted with similar circumstance, most reasonable employers would have dismissed the complainant.  I find therefore, that his dismissal was not unfair.

For the reasons set out above, I decide that this complaint under the Unfair Dismissals Act is not well founded.

Double employment, refusal to return to work, lay-off