Complainant

Respondent

Parties

Edward  Murphy

McMahon Concrete Products Ltd

Representatives

  Self

Eamonn Dillon, Edmond J. Dillon 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-00038107-001

21/06/2020

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

CA-00038264-001

22/06/2020

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

CA-00038265-001

22/06/2020

The complainant was employed as a labourer by the respondent company at its precast concrete plant at Knockbweeheen, Ardagh, Limerick.  He commenced employment on 14 March 2016.  He worked a 45 hour week and was paid €522.40 gross per week.  He resigned on 15 June 2020.   He contends he had to resign due to bullying and threating behaviour.  He submitted a complaint of unfair dismissal (constructive dismissal) to the Workplace Relations Commission on 21 June 2020.

The respondent submits that the complainant was not dismissed from his employment as alleged or at all.  The respondent contends the complainant voluntarily resigned from his employment on 05 and 15 June 2020.  The respondent further contends the complainant resigned to immediately take up other employment and he did not suffer any financial loss whatsoever.

The complainant commenced employment on 14 March 2016.  He worked at the respondents plant at Knockbweenheen until he was laid off on 19 March 2020. 

On 23 March 2020 an e-mail from the respondent noted that the company would be obliged to cease operating at that site in the immediate future due to issues arising under the Planning and Development Act 2000. 

On 03 May 2020 the complainant received an e-mail from the respondent advising that full time work would be available from 05 May 2020.  The complainant was asked to advise the respondent in writing if he was not able to commence work.  The complainant sent a replying e-mail the following day raising some health and safety issues.  He stated he would be happy to return to work if certain guidelines were in place and until then he would not be returning to work.  The respondent replied on the same day stating that they were working to ensure the workplace was as safe as reasonably practicable but considering the concerns raised by the complainant he was not required to attend work until further notice.

On 27 May 2020 the respondent sent an e-mail to the complainant stating he was required to attend mandatory safety training on 02 June 2020.  In the e-mail it was stated that failure to attend the safety training would affect the complainant’s ability to return to work.  It was further stated that the training did not necessarily mean that all staff would be brought back together at the same time.  Staff were to be brought back to work as required and as and when it was safe to do so. 

The complainant attended the training on 02 June 2020 as required.  It was a manual handling course.  The complainant noticed new employees on site doing his and other peoples jobs.  No further information about returning to work was provided that day.

In these circumstances the complainant decided to send an e-mail to the respondent claiming a redundancy payment.  He sent the e-mail on 05 June 2020.  On 12 June 2020 the respondent offered the complainant his job back. Later the in the day he received another e-mail that contained what he understood to be accusations and threats. 

The complainant contends he had no option but to resign for the following reasons:

·       The business at Knockbweeheen had to cease production

·       He was given no information and was ignored for several weeks

·       The e-mail of 12 June 2020 from the respondent contained accusations and a threat.

On 15 June 2020 the complainant submitted a letter of resignation stating that due to the behaviour of the respondent he believed the employment relationship had broken down irrevocably.

The complainant claims compensation for unfair dismissal.

The respondent denies that the complainant had to resign.

The first case of Covid-19 was identified in Ireland on 28 February 2020.  The public health advice issued shortly after that was to close all non-essential businesses.  The respondent, despite the serious disruption to the business and financial strain, adhered fully to the public health advice. 

The business is cyclical with 80% of all its sales being between April and September each year.  In March 2020 the respondent’s cash reserves were low after the winter trading period.  Considering the circumstances, the respondent determined that it would not be able to pay staff wages.  Consequently, the decision was taken to lay off staff.  The respondent provided as much notice to its employees as was possible in the circumstances.  Staff were informed of the lay off by e-mail, dated 18 March 2020.

On 03 May 2020 the respondent sent an e-mail to all staff advising them that a phased return to work was being planned.  The respondent engaged in a full safety review of the plant and operation, with particular but, not exclusive, reference to the risk arising from Covid-19.  Arising from the safety review the respondent carried out refurbishment works to the canteen and toilet facilities.  The cost of this work was more than €20,000.00.  The work took some time and was mainly completed by the end of May 2020.  On 27 May 2020 the complainant and other employees were requested to attend a health and safety training course on 02 June 2020.  All employees were advised that a phased return to work was being planned.

On 05 June 2020 the complainant sent an e-mail to the respondent claiming redundancy as he wanted to move on.  This e-mail was caught in the junk mail and was not seen for some days.  The respondent replied on 12 June 2020 confirming to the complainant that he was still an employee and his position was available for him.  The complainant was asked to complete a further online Covid-19 safety course.  All other employees were brought back to work on a phased basis.

The complainant attended the company site on 15 June 2020 and again resigned.  The complainant was not dismissed as alleged but, resigned voluntarily of his own volition on 05 June 2020 and again on 15 June 2020.   The complainant took up alternative, more lucrative, employment immediately after he resigned and consequently suffered no financial loss whatsoever.

Complaint CA-00038107-001

Complaint submitted under section 8 of the Unfair Dismissals Act, 1977.

The complainant contends that he had to resign from his employment because of the conduct of the respondent.  The circumstances of his resignation he contends amount to an unfair dismissal.   The respondent’s position is the complaint resigned voluntarily to take up alternative, more lucrative, employment.  The respondent rejects the contention that the conduct of the employer forced the complainant to resign.

Legislation

Before considering the issue of fairness I must be satisfied that there has been a dismissal.

Dismissal is defined in the Act as follows:

“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;

The complainant resigned from his employment.  Section (b) above defines dismissal in cases where the employee resigns because of the employer’s conduct.  There are two parts in this definition, entitlement and reasonableness. 

An employee maybe entitled to terminate the contract of employment where the conduct of the employer amounts to a significant breach going to the root of the contract or the conduct shows that the employer no longer intends to be bound by the essential terms of the contract.

If an employee is not legally entitled to terminate the contract of employment the conduct of an employer may have been so unreasonable that the employee had no option but to resign.  The conduct of the employee is also relevant in such circumstances.

Complainant’s Evidence

The complainant in his evidence stated that he was laid off on 19 March 2020 with little notice.  He worked at the respondent’s site at Knockbweeheen.  A short time after he was laid off he became aware that the respondent would have to cease operations at the site on the order of the County Council. 

The complainant stated that on 03 May 2020 he was notified that work was available.  He replied stating his concerns about health and safety guidelines.  He stated he would have returned if his concerns were addressed.  His concerns were not addressed by the respondent but, instead he was informed he was not required to attend work until further notice.  He stated he was left at home for several weeks and he understood his job was no longer available.

The complainant stated he attended a manual handling course at the plant on 02 June 2020.  He stated that when he was at the plant he noticed new employees doing his job.  He stated he was not given information on that day about his return to work.  The complainant stated that in these circumstances he believed he was entitled to redundancy, so he sent an e-mail on 05 June to claim his redundancy payment.  He did not receive a reply and he believed he was being ignored. 

The complainant stated that he received an e-mail on 12 June 2020 offering him his job back after he completed a Covid-19 induction course.  Shortly thereafter he stated he received a second e-mail in which he was accused of attempting to blackmail the respondent and threating to inform the Gardai.  The complainant then believed he had no option but to resign. 

Under cross examination the complainant acknowledged that over the years of his employment with the respondent he had been well treated.  He was first employed in 2014 and had resigned the following year.  He was re-employed in 2016 when he asked for his job back.  The complainant acknowledged that he had received assistance with loans and finding accommodation. 

The complainant accepted, in retrospect, that he received as much notice of lay-off as the respondent had of the need to close due to the pandemic health and safety restrictions.  The complainant acknowledged that the respondent needed to carry our upgrade work to meet health and safety standards and that his work was being done in May 2020. 

In response to questions about the e-mail exchanges of 12 June 2020 the complainant stated he felt he was within his rights to claim redundancy.  His understanding was based on the fact he had been laid off since 19 March 2020 and the site at Knockbweeheen had to cease production.  In addition, he stated he was given no information for weeks and his e-mail of 05 June was ignored.  He understood the reference in the last e-mail to the gardai to be a threat to him.  He felt like he had no other option but to resign.

The complainant confirmed that he started his new employment on 16 June 2020.

HR Manager & Financial Controller Evidence

The manager described the business of the respondent.  When the Covid-19 pandemic was declared in 2020 the respondent followed the Government’s advice on health and safety.  Because to the type of business the respondent is engaged in it was not possible for the employees to work from home.  The only part of the business deemed essential was the supply of water troughs to farmers.  Having considered the health and safety and financial issues it was decided to close and put employees on lay-off, except for two employees.  All employees were informed of the lay off by letter of 18 March 2020 and the plant closed on 19 March 2020.

The manager stated that no employee was made redundant or dismissed.  On 03 May 2020 an e-mail was sent to all employees stating that work was available from 05 May 2020.  However, if employees were not in a position to commence work they were asked to advise the respondent in writing as soon as possible so that alternative arrangements could be made.  As the complainant raised several health and safety concerns he was not required to attend work until further notice.

The manager stated that the respondent took health and safety issues very seriously and upgrade works were carried out over a six to seven week period.  Works were carried out on the canteen, toilets and new safety bars were installed at a cost of between €25,000 to €30,000 euro.  Following that, safety training was carried out on 02 June 2020.  The manager stated the complainant attended the training on 02 June 2020.  On that day the manager spoke with the complainant and no issue, complaint or grievance was raised by the complainant.

The request for a redundancy payment made by the complainant was unexpected and very surprising to the manager.  The manager stated that the company was not making employees redundant as work was resuming in May/June 2020.  He also checked if an employee could claim redundancy when on lay-off and had been advised that it was not possible at that time due to a change in legislation.  The complainant was advised on 12 June 2020 that he could return to work when he completed the online Covid-19 induction course provided by the CFI. 

The manager stated that there was no relocation from the site at Knockbweeheen until January 2021 and there were no redundancies arising from the relocation.

Conclusions

The complainant contends that he had to resign due to the conduct of the respondent.  I have considered carefully the complaint, written and oral submissions and the documents presented to me.  I am satisfied that there is no evidence that the conduct of the employer amounts to a significant breach going to the root of the contract or that the employer no longer intended to be bound by the essential terms of the contract.  On the contrary, to protect the business and taking account of the health and safety advice from the Government, the respondent put its employees on lay-off from 19 March 2020 to 05 May 2020.  In my opinion those actions were reasonable in the circumstances of a global pandemic and the financial position of the company. 

The complainant, along with all other employees, was informed that work was available again from 05 May 2020.  However, if an employee was not able to return on that date alternative arrangements would be made.  The complainant had several health and safety concerns, so he was not required to return on 05 May 2020.  I accept that the respondent was carrying out work to upgrade and improve the facilities during May and June 2020.  From the description of the upgrade work done I am satisfied that the complainant’s health and safety concerns would have been addressed when the works were completed.

It is clear from the complainant’s evidence that having been on lay-off from 19 March 2020 by early June 2020 he thought he was entitled to claim a redundancy payment.  It is true that in certain circumstances an employee on lay-off may claim a redundancy payment, section 12 of the Redundancy Payments Act, 1967, as amended provides as follows:

Right to redundancy payment by reason of lay-off or short-time.

12.— (1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless—

(a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the layoff or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) (a) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week’s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to

be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

However, against the background of the Covid-19 pandemic the Government amended the legislation to suspend the operation of section 12 as follows:

12A. (1) Section 12 shall not have effect during the emergency period in respect of an employee who has been laid off or kept on short-time due to the effects of measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19.

The emergency period was initially from 13 March 2020 to 31 May 2020 but was extended six times until 30 September 2021.  The complainant was therefore mistaken in his belief that he was entitled to claim a redundancy payment in June 2020. 

In his e-mail to the respondent dated 05 June 2020 the complainant stated that he hoped to claim his redundancy and move on. The respondent replied on 12 June 2020 informing the complainant that the legislation had been amended so preventing employees claiming redundancy where they had been temporarily laid off.  The complainant was informed that he could return to work when he completed the Covid-19 online induction course organised by the CFI.  I am satisfied that the respondent correctly informed the complainant that he could not claim a redundancy payment at that time due to being put on lay-off.  In addition, I am satisfied that there was work available for the complainant at the Knockbweeheen site at that time and until early in 2021.

In a second communication on 12 June 2020 the respondent made a statement that caused upset to the complainant.  The respondent stated that they were reserving their position in relation to advice they claimed to have received from their solicitor.  However, the complainant felt he was threatened with being reported to the Gardai.  The complainant contends that the statement was bullying and threating behaviour.  He stated in his letter of 15 June 2020 that due to this behaviour he believed the relationship had irrevocably broken down and he resigned.

I accept that the statement of the respondent in the second communication of 15 June caused upset to the complainant.  In my opinion the statement was unhelpful and unnecessary.  I accept the evidence of the respondent that against the background of the Covid-19 pandemic they were working to protect the business and the health and safety of the employees.  I am satisfied that the complainant has not shown the conduct of the respondent was so unreasonable that he had no option but to resign. 

I am satisfied that the complainant’s decision to resign was not reasonable considering all the circumstances.  The complainant incorrectly believed he could claim a redundancy payment because he had been laid off since 19 March 2020. He obtained alternative employment at a higher rate and he formed the intention to claim a redundancy payment and in his own words, of 05 June 2020, move on.  When he attended the on-site training on 02 June 2022 he did not raise any issue or grievance with the respondent.   It is well established that an employee is expected to pursue his grievance through company procedures before resigning.  (Conway v Ulster Bank Ltd UD474/1981)

I am satisfied that the complainant has not shown the conduct of the respondent was so unreasonable that he had no option but to resign.  I am satisfied that the complainant’s decision to resign was not reasonable considering all the circumstances.  In my opinion the complainant resigned to claim a redundancy payment, that he was not entitled to claim, and to take up another job at a higher rate, there was no dismissal.  I find the complainant was not unfairly dismissed.

Complaint CA-00038107-001

Complaint submitted under section 8 of the Unfair Dismissals Act, 1977.

I am satisfied that the complainant has not shown the conduct of the respondent was so unreasonable that he had no option but to resign.  I am satisfied that the complainant’s decision to resign was not reasonable considering all the circumstances.  In my opinion the complainant resigned to claim a redundancy payment, that he was not entitled to claim, and to take up another job at a higher rate, there was no dismissal.  I find the complainant was not unfairly dismissed.

Complaints CA-00038264-001 and CA-00038265-001

Complaints submitted under section 8 of the Unfair Dismissals Act, 1977.

These complaints are duplicates of the above complaint and were withdrawn.

Constructive Dismissal

Redundancy Payment