Complainant

Respondent

Parties

Thomas  Byrnes

Tommy and James Stack T/A Thomastown Training Centre (amended on consent at hearing)

Representatives

JJ Fitzgerald JJ Fitzgerald & Co. Solicitors

  Colm Kitson, BL, instructed by Maurice Power Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00033907-001

21/01/2020

This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

This case involves a complaint of Unfair Dismissal lodged with WRC on 21 January 2020.

The case came for hearing on 30 April 2021 in the wake of the Zalewski Judgement at the Supreme Court on 6 April 2021.

I addressed the parties on   the WRC stated position post Zalewski on that day. The Respondent clarified the correct legal title, which was amended on consent. As dismissal was conveyed as being in dispute, I adjourned the hearing to await the legislative amendments on provision of oath / affirmation. I requested the Complainant to forward details of loss and mitigation. The names of witnesses were confirmed and recorded.

On July 29, 2021, the Workplace Relations (Miscellaneous Provisions) Act 2021 amended the Workplace Relations Act, 2015. The amendments relevant to the instant case are set out below

12A) (a) An adjudication officer may require a person giving evidence in proceedings under this section to give such evidence on oath or affirmation and, for that purpose, cause to be administered an oath or affirmation to such person.

(b) A person who, in or for the purpose of proceedings under this section, gives a statement material in the proceedings while lawfully sworn as a witness that is false and that he or she knows to be false shall be guilty of an offence and shall be liable—

(i) on summary conviction, to a class B fine or to imprisonment for a term not exceeding 12 months, or both, and

(ii) on conviction on indictment, to a fine not exceeding €100,000 or imprisonment for a term not exceeding 10 years, or both. 

(13) Proceedings under this section shall be conducted in public unless the adjudication officer, of his or her own motion or upon the application by or on behalf of a party to the proceedings, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public. 

 (14) (a) Subject to paragraph (b), the Commission shall publish on the internet in such form and in such manner as it considers appropriate every decision of an adjudication officer under this section.

The case was relisted for hearing on October 1, 2021.

Both parties were legally represented in this case. The Complainant by JJ Fitzgerald Solicitors and the Respondent by Colm Kitson, BL instructed by Maurice Power Solicitors. Both parties submitted written submissions.  The Respondent also tendered a copy of the Complainants Contract and Staff Handbook.

The Respondent sought a Postponement at the commencement of hearing on day 2 as one of the Owners, who was also witness in the case was present at the Airport enroute to some Horse Sales, necessary for the business. The Respondent had sought to obtain a postponement prior to hearing but had been unsuccessful.

The Complainant Solicitor opposed the application for postponement and expressed a preference to press on with the case. He articulated a figure he wished to realise for his client in the case.

I took a short adjournment before conveying that I intended to continue with the hearing in the case and was prepared to facilitate Mr A either at his destination or subsequently that day. Counsel for the Respondent reserved his position on Mr A at that point.

I offered the parties an opportunity to resolve the matter between them. This was not viewed as a viable option.

As the dismissal was in dispute, the Complainants’ Solicitor opened the case by outline.

The hearing was subsequently reconvened to take evidence from Mr A, Owner and Mr G, the then Head Man at the stable. The case did not have the benefit of Mr X, the fourth person at hearing.

The Complainant had worked as a Stable Hand from age 17, in 2013. He earned a weekly gross pay of €485.00. He had a break in service before returning to work on 1 January 2018.

On 16 December 2019, the Complainant happened across a scene where a work colleague had suffered a heart attack at his home. The scene was attended by emergency services and resulted in the death of the work colleague which shocked the complainant.

A series of events followed, where the complainant stood back from his work as a result and culminated in the Respondent dismissing him on 17 December through a phone conversation with Mr G.

 His case was that he was unfairly dismissed on 17 December 2019. He did not have a disciplinary record.

The Complainant Solicitor submitted that the Complainant   did not resign his position in either behaviour or by his words as relied on by the Respondent. The Respondents Mr G, Stable Manager had told him that his job “was not available “when he had sought his job back.

Evidence of the Complainant: by affirmation

 The Complainant confirmed that he had started work with the Respondent at 17 and had got on well with the Partnership of owners. He had taken a break in service due to a hurling injury. He had not seen a staff handbook in the course of his employment.

He recalled 16 December 2019, when he went to the shop during his lunch break 1-2pm. He observed a work colleague lying on the ground at his house attended by Gardai and Ambulance, who asked him if he knew the man? The Complainant mentioned that he worked with him.

The Complainant alerted the man’s partners phone and Mr G, stable manager, who handed the phone to Mr A. He wanted them   to prepare the man’s partner for “what was ahead of her “. They both came down to the house.

The Complainant stayed on at the staff members house until 3.30 pm -3.45 pm and did not feel like going back to work, which normally finished at 4.40pm

He said he went home after that before going for a drink at 5pm.

He returned to work the next day and undertook “one rolls out “when at 9.30 am, Mr A queried his whereabouts the day before? The Complainant was informed that he would be docked wages and a day’s holiday. A heated discussion progressed between them, and the Complainant said: “Not today, Mr A “

The Complainant went to his van and went home.

He habitually attended work at 7.45 am daily. 

The Complainant reflected that he knew the staff member very well as he “had showed him the ropes in the job and we went to matches “

He recalled Mr C, Mr B and he had left work that day.  He had gone home before meeting up with Mr B for a drink.

He recalled that at 2pm the Stable Manager, Mr G had told him by phone “that his job was gone over leaving “The Complainant said he would meet him the next day.

The Complainant was categorical that he had not resigned. He took Mr Gs   statement as a dismissal.

He met Mr A the following morning and asked to “go back”. Mr A told him that his position had been filled the day before and that “we know where to find you “

The Complainant had an instinct that this couldn’t be right. He said that he had been a compliant employee.

He found new work on 23 March 2020. He had asked around for work. He was concerned as his partner was not working.

During cross examination,

Counsel asked the complainant if he knew what would happen if stables were not mopped out in the mornings. the Complainant responded saying “you get someone to do it “He accepted that animals would be left in an unsanitary setting.

He accepted that his extended leave from work on 16 December was unauthorised. He clarified that some employees had gone to the staff members house and had returned to work. He accepted that he did not have permission to be away.

The Complainant recalled that some of the part time staff who finished at 1pm and had been friends with the staff members partner had also gone to the house. He was unsure of their arrival time.

The Complainant was silent when asked where he had gone on leaving the staff members house. He said he had been affected by his experience at the staff member’s house. He accepted that he knew cover was needed at work.

The Complainant denied that he was an active participant in a plan that he had decided to resign with Mr B and Mr C rather than face a disciplinary procedure.

He confirmed that he had left the Centre following his conversation with Mr A the next day and went to his van. He denied uttering the profanity put to him by Counsel when he said

“I definitely didn’t say that “

He shrugged in response to Counsel when he put it to him that the trio had formed a “pact of resignation “ 

He said they had returned to the Pub.

He recalled that Mr C had received a phone call from Mr G and had decided himself to return. The Complainant understood this was prompted by a number of warnings already received by Mr C.

He confirmed that he was also allowed back to work at that point.

He said that he had stayed on at the pub alone and went back to look for his job back the next day.

Counsel asked, why would you ask for your job back if you had resigned?

The Complainant replied that Mr G had told him his job was gone.

The Complainant contended that in the event of the untoward event in the workplace, people were wont to fill in the tasks.

He accepted that he had been replaced at work. He re-affirmed his efforts to find work but did not tender records of job applications

During re-direct, the complainant confirmed that it was not the norm to be replaced at the centre so swiftly. Cover was normally provided internally.

In clarification to the Adjudicator, the Complainant confirmed that he no idea that notice applied at the end of employment. There were no paper records of a resignation or a dismissal. He was not provided with a debriefing post his experience at the staff member’s house.

He confirmed that he spoke with Mr G   for 5 minutes on 17 December without being subject to direction. He said he was one of 5 stable hands.

He confirmed that the Emergency services had told him the staff member had died and he knew he needed to contact the yard with that information.  

In closing remarks, the Complainants Solicitor submitted that the complainant had not resigned, and he had not been paid in lieu of notice. He posed the question as to why would he have come to work if resignation was his objective?

He reflected that Mr A had been annoyed by the “4 exits “but no evidence existed on how employees were managed in the aftermath of a sudden death of a work colleague. He professed that a more sympathetic approach was called for in the face of a low hour’s level of loss on the first day.

He re-affirmed that the Complainant had not resigned and deserved a more common-sense approach by the Respondent. He acknowledged that Mr C had returned contrite to the business, but the respondent did not reflect that the “short period of absences “were out of character for the complainant and ought to have prompted a pragmatic approach to reconciliation at the business.

He concluded that the Respondent had endeavoured to show the lads who left as “teaching the guys a lesson “

The Grievance procedure in the not previously seen handbook nominates the Head Lad as a contact point.

The Respondent operates a Partnership in a Horse Training Business and has disputed that a dismissal occurred. It was the Respondent case that the Complainant resigned his position.

Counsel for the Respondent outlined that an unexpected death of a member of the respondent staff, whose partner also worked at the business had occurred close to the training centre. Employees had attended the house in support.

Four employees did not return to work and chose to absent themselves, which was viewed very seriously by the respondent when animal welfare obligations and regulatory issues were taken into consideration.

The Employees made an appearance at work the next day. Mr B, a colleague of the complainants dismissed a request to explain his absence. Mr X, the fourth member of absentee grouping apologised for his absence.

Another colleague, Mr C, would give evidence that a pre-determined plan was formed that they trio would leave the employment to avoid activation of the disciplinary procedure.

The Respondent contended that the complainant had uttered an outburst profanity at Mr A on not wanting his job back. 

Mr C was the sole employee to return to work.

The Stable Manager agreed to facilitate the return of the other two colleagues and the Respondent case centred on the fact that the Complainant had surrendered his job.

Counsel submitted that the Complainant had subsequently presented at the Training Centre requesting his job back. The Respondent had borne him no ill will, but it was a business imperative to fill the two vacancies in the best interests of animal welfare.

By then, the Complainant had uttered unambiguous words of resignation and he had clearly resigned.  The Respondent was not obliged to take him back.

He concluded in the alternative, that the Complainant had made a significant contribution to his own dismissal as author of his own misfortune.

Evidence of Mr C, Colleague

Mr C was at work during the 16 December 2019. He went to town on his lunch and was informed about the staff member incident. He drove to his house before linking up with colleagues. He did not return to work after 2.30pm and accepted that he did not have permission to be absent.

He went to work the next day and recalled a heated discussion with Mr A on not having a real excuse to govern the previous days absence from the trio of Mr B, the complainant and him.

Mr C recalled that they were all placed on warning and there were surprised as a colleague had died. He recalled the Complainant saying that he had seen the staff member in an ill-disposed position to which Mr A replied that he had seen him also.

He recalled that Mr B had passed negative remarks at Mr A.

He recalled that the trio of Mr B, C and he had left work of their own accord. His car had remained at the Pub overnight. Mr G rang to see where were had gone. He said that he panicked and got into his car to return to work. He understood that Mr B, and the complainant went to the pub as photos were sent from there later. These photos were not exhibited at hearing.

During cross examination:

Mr C confirmed that the Complainant had known the staff member RIP better than he did as he had socialised with him.

Mr A told the trio that they would be docked pay and warned. Both he and another colleague received a warning.

In recalling the scene, he encountered, he confirmed that the staff member was re-positioned by then and the Complainant was in attendance. He was unsure whether emergency services were there? He confirmed that he had not seen “an incident such as that “

He reaffirmed that the “choice words “were spoken by Mr B

In redirect, he confirmed that the animals need someone to feed them.

In clarification of the disciplinary sanction, he thought he had been docked half days pay.

Evidence of Mr A, Business Owner:

Mr A is a Licensed Trainer. He recalled the events of December 16 when a staff member had died. Most of the staff had attended the staff members home and he had supported that initiative. Four of that cohort did not return, Mr B, C, the Complainant and Mr X. This left a pronounced vacuum in staff to care for animals as they had not communicated that they would not be back.

Caring for horses is not a standard job and, on that occasion, general animal welfare was compromised. The Complainant was away from 4pm to 5pm and had not returned by the time Mr A left that evening.

He met Mr B, C, and the Complainant the next morning. He spoke to them and told them that he would dock them all afternoons pay and would apply a writing warning. He fully respected the level of upset amongst the staff, but all returned bar the four mentioned above.

He recalled that the Complainant told him that “I’m finished, I’m done “and drove away.

 Mr A referred to the staff handbook retained in the Tack room. Mr C went with the others. Mr B adopted a menacing approach and said “the yard would be finished without him “

Mr A interpreted the Complainants declaration as a strong resignation.

Mr C returned to the business a short time later. There was no further contact from the complainant that day.

On 18 December, the Complainant returned and sought his job back. He told him he knew where to find him if needed. After events of 16 and 17 December, the” mess” meant that there wasn’t enough staff for tasks, and this was unsustainable.

Mr A concluded that the situation was a mess through short staff and omissions in the “mucking out” process. Everything was delayed because of the absences. By the afternoon of 17 December, he had secured a back fill from two named employees.

He submitted that the Business was vulnerable to an unannounced Regulatory Inspection at any time, and he wished to protect the Reputation of the yard at those external levels of inspection.

During cross examination, the Complainants Solicitor put to Mr A, how would a small number of hours of absence have made such a difference?

The crux of the issue for Mr A was that all four had departed together leaving a major void in caretakers for the animals. It was the cumulative effect of the absence rather than individualistic episodic effect.

He recalled that it was the deceased staff member who had invited the Complainant back to work in 2017. He confirmed that the complainant did not have a disciplinary record.

He appreciated that the Complainant had come across the scene and entered the staff members house on 16 December. He recalled that while everyone was upset, the complainant could not be “beyond reproach “

With 4 staff missing, he could not cut him slack.

He understood that the complainant was boasting about drinking on snapchat, but he had not seen the photos.

He denied sacking any employee, instead, the Complainant resigned and walked out.

He was clear that he had not instructed Mr G to make a call to the Complainant on 17 December. He acknowledged that he had hardened his position by the afternoon of December 17. He denied instructing Mr G to refuse the trio to return to work.

He confirmed that he hired two back fills.

He contended that it was open for the complainant to return. He had not thought about addressing him on that. He contended that Reality had set in for the complainant as he sought his job back. He informed him his job was gone. One of the back fills had increased from part time and one was a new hire.

Mr A confirmed that he had informed the complainant that he would be paid what was owed to him. He had not considered the disciplinary procedure and did not apply a warning to the complainant. He was docked ½ days’ pay.

In redirect, Mr A re-affirmed the risk faced by the business if the external scrutineers established an omission to mop out a stable.

In clarifications to the Adjudicator, Mr A was unclear whether notice was paid at the conclusion of employment. He didn’t get a chance to ask the Complainant to serve notice as he walked out.

He distinguished the previous termination of employment as being on health grounds.

The Stable was not in any prior difficulty with the Regulator

Evidence of Mr G, Stable Manager:

Mr G commenced work with the Respondent in the 1990s and was headman to Mr A. He was aware of the events of 16 December. On 17 December, he had gone to the garage with a colleague when, on his return, Mr A informed him that the lads who usually do the “mucking out “had left the yard.

He recalled that he called Mr C and asked whether they were returning? He did not contact the complainant that day.

Mr G said that the Complainant rang the next day looking for his job back and he told him that “it was out of my hands “

During cross examination, Mr G confirmed that it was not his job to manage resignation or hire staff as that was the preserve of Mr A.

He confirmed that the Complainant had been a good employee.

Mr G repeated his denial that he had contacted the Complainant at 2pm on 17 December. He said that it wasn’t his job, in a busy yard, to talk around issues. He clarified that it was his job to check that the horses were ok.

Mr G said that he had not been present when the trio had left the yard. He confirmed that the complainant had phoned him regarding his job, but it was not his place to intervene. Mr A was in charge.

In redirect, Mr G clarified that he had missed the complainants call and he phoned him back.

He stated that he was not involved in the resignation, and he was no longer Head Man at the Yard.

In conclusion, Counsel for the Respondent submitted that no evidence existed by word or action of dismissal.

He disputed the Complainants evidence on going to the pub “after work” on 16 December as opposed to Mr Cs reflection of “during work “ 

He submitted that the Complainant had denied going to the pub on 17th, but pictures emerged. These have not been presented at hearing.

He maintained that the Complainant resigned by his words and was unambiguous in those words of resignation (Redmond)

The Complainants behaviour stood in contrast to that of Mr C who returned to work.

At any rate, the Complainant was fully intent on resignation and the Respondent was not obliged to accept the Complainants withdrawal of notice.

Mr G had not informed the Complainant of his job loss. The Complainant had not appealed. He knew that he had resigned.

Counsel was dissatisfied the Complainants lack of evidence on mitigation, which was unvouched.

The Complainant had made a massive contribution to his own demise.

I have inquired into the circumstances of this case. I have heard evidence from the pro-offered witnesses, and I have reflected on this and on the written submissions.

This is a claim for statutory unfair dismissal by the Complainant which has been vigorously disputed by the Respondent.

From the outset, I would like to compliment both Representatives in this case as both were strident advocates for their respective clients.

The legislative framework for the case is the Unfair Dismissals Act, 1977.

Both parties accepted that the Complainants employment came to an end on December 17, 2019. However, neither are at one on just who initiated that termination of employment.

The Complainant, on whom the burden of proof rests to prove that a dismissal occurred, is clear that he did not resign his position but rather that he was dismissed by means of a phone call from Mr G at 2pm on 17 December 2019. He said that he approached Mr A to reconsider this the next day and was informed that he had been replaced.

The Respondent is clear that the Complainant resigned his position on the morning of 17 December 2019, and he was not under any obligation to take him back. He had been compelled to replace the complainant.

This is therefore a disputed dismissal.

For my part, I was struck by the absence of any paperwork of any kind to guide me to an early distinction between resignation or dismissal in the case. I did not have a letter confirming resignation, neither did I have a letter confirming a dismissal. Furthermore, I did not have the benefit of back up contemporaneous notes from either party.

I did identify that both parties accepted that the antecedent event in the case centred on the sudden death of a staff member at the Stables at his home on 16 December 2019. This is the event from which all occurrences in this case flowed and in particular each of the party’s interpretation of those occurrences.

The law on the definition of dismissal is set out in Section 1 of the Unfair Dismissals Act, 1977 as amended.

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.

 Date of Dismissal means

( a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

( b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973,

Resignation:

The rules on resignation are set out in section 5.6 of the Staff Handbook, which the Complainant maintained he had not seen in the course of his employment.

The contract of employment exhibited was dated May 2013, which did not reflect his recommenceme and did not cross reference a clause on notice.

The legislative framework on Notice is contained in the Minimum Notice and Terms of Employment Act, 1973

Minimum period of notice.

4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

Rights of employee during period of notice.

5.— (1) The provisions of the Second Schedule to this Act shall have effect in relation to the liability of an employer during the period of notice required by this Act to be given—

(a) by an employer to terminate the contract of employment of an employee who has been in his continuous service for thirteen weeks or more, and

(b) by an employee who has been in such continuous service to terminate his contract of employment with that employer.

(2) This section shall not apply in any case where an employee gives notice to terminate his contract of employment in response to a notice of lay-off or short-time given by his employer.

(3) Any provision in a contract which purports to exclude or limit the obligation imposed on an employer by this section shall be void.

I have included these provisions to demonstrate that there are rules around effecting resignation/ minimum notice as well as a dismissal.

The Resignation Argument:

I listened carefully to all evidence adduced in this case. As I have stated everything occurred within a 72-hr window of an unexpected death of a staff member.

In Redmond on Dismissal, Des Ryan outlines some observations on resignation in Chapter 22

Where unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, generally it is safe to conclude the employee has resigned. The contract is terminated in accordance with its terms and there is no repudiation, acceptance is not required by the employer. However, context is everything. A resignation should not be taken at face value where in the circumstances there were heated exchanges or where the employee was unwell at the time. The intellectual make -up of the employee may also be relevant.

Millet v Shinkwin UD 4/2004, May v Moog ltd [2002] ELR 261

In the instant case, I was very taken by the evidence of the Complainant, who was consistent in his account of his recollections over the 3 days. I was also  very taken by the evidence of Mr A, who sense of responsibility to the Yard could not be disputed and he presented as a cogent  and clear witness. I would liked to have met Mr X who while commencing as the fourth man engaged in unexplained absence on 16 December 2019 had altered his course on 17th December when it seems he apologised for his absence and returned to the fold.

I found Mr C to be clear in his recollections, but found Mr G quite fluid in his recall, preferring to emphasis the parameters of his delegated authority than present a solid chromoly on what occurred.

I accept the complainant evidence that his proximity to the sudden death of his friend/ staff member had a traumatic effect on him.  I accept that this was an unforeseeable event and one that no one could predict the impact it would have on either the complainant or indeed the business of caring for the horses which the Respondent was steadfast about. It really was a moment in time.

I have drawn on the WRC Employment Guide for Horse Breeding and Racing Sectors, 2020, where it states in the pre-amble:

Employees are an invaluable asset for all enterprises but especially in the horse breeding and racing sectors were working with these special animals requires special people. The recruitment and careful retention of employees can often lead to a life long and mutually beneficial relationship between employee and employer which we see frequently during the Racing and Breeding Industry. The success of such relationship depends not only on trust, commitment, communication and fairness but also on compliance by employers with a range of obligations relating to employee’s employment rights, health and safety and welfare. We call the employment life cycle a “Walk through Working Life “….

For me, at least , this reflects a Mission Statement for the Horse Breeding and Racing  Industry .

It was undisputed that the complainant was one of 4 employees who failed to return to work in the aftermath of his happening across the sudden death of his friend and sponsor, while on his lunch break from work. I did not establish evidence of a collective plan to sidestep the prospect of punishment for absence by resignation. Firstly, I am satisfied that the complainant was not familiar with the staff handbook, secondly with a young child and dependent partner, I just could not see him risking his job in that way.

However, it is clear to me that the complainant blended into a “musketeer “(four employees) type formation when he did not return to work. I was struck by and inquired into whether he was met with any type of “de-briefing “in the aftermath of his discovery and the responsibility he faced in communicating what he found to his employer? I was disappointed to find a vacuum in that regard.

I have found that the complainant fell back on that “musketeer “formation mentioned above and did go to the Pub on the afternoon of December 16.

On the next morning, it appears that all four absentee employees presented back at the workplace and resumed work. This was interrupted by Mr A, understandably, seeking reasons for the complainant’s absence.

I have established that what occurred at that point goes to the root of the case. In relying on Mr Cs evidence, it was Mr B who directed the profanity on which the Respondent relied as the Complainants resignation.

I accept the evidence of the Complainant when he denied that utterance.

I understand that the Respondent, Mr A thought he had a mutiny/insurrection on his hands on the evening of December 16. He could not understand how four employees, would abandon the care of the animals. He was genuine in that regard.

However, in my view this duty of care to the animals was not adequately balanced with the duty of care I would expect to see  towards an employee.

The situation went of out of control on the morning of December 17 and really,I found that  it was a confused blur in the complainant’s mind and not that clear in the respondent’s mind either, who at its height accepted Mr X apology and a further exodus of the now trio grouping, one of whom later reconciled by his return.

Conflict of that nature, coupled with residual trauma and perhaps the aftermath of the pub visit from the day before did not serve as a solid platform for engagement or  resolution. However, the Complainant left the yard stating that he couldn’t face the probe mounted by Mr A, who in turn interpreted his actions as a resignation. I have found that this was a wrong call by the respondent.

I reflected on the evidence of both the Complainant and Mr C   in relation to the call attributed to Mr G at 2pm that day. I accept Mr Cs evidence when he told the hearing that Mr G had inquired on whether the trio were returning? I don’t accept that Mr G communicated his dismissal to the complainant  at that time or directed him to return.

However, it’s clear to me that the “Snap chat “photos attributed to the December 17 pub return, whilst not exhibited at hearing, by either party, served as a major irritant to Mr A, who was clearly struggling with reconciling the Yards responsibility to the animal welfare in the prolonged absence of 2/5 stable hands. Mr C mentioned those photos as did Mr A. The Complainant did not seem to recall them.

I find that the Complainant did have an informal  conversation with Mr G prior to his engagement with Mr A on the morning of 18 December from where he viewed, he had been dismissed. That was the basis of his plea for re-instatement with Mr A, which was unsuccessful.

However, I found that he was formally advised by Mr A that he had been replaced on the morning of December 18. I find that this constituted a dismissal and was not prefaced by a resignation.

In the context of a resignation, the employer is expected to record that development in an employment relationship. There was no evidence of a record of this, and I am swayed by Mr Cs evidence that it was Mr B who dissociated himself from his job in conversation with Mr A, not the complainant. In a three-way heated conversation with three employees and one owner, it is not unreasonable to be confused on who said what at what time.

Instead, Mr A confirmed that the Complainant had been docked half days pay and a written warning. I did not find any evidence of those applications.

In analysing Mr A’s evidence at hearing, he was disappointed at having to manage this situation where employees had taken off work without permission. He was not prepared to consider the complainant as an   individual and did not, in my opinion apply a proper weighting to the shock experienced by the complainant, who by Mr Cs   admission knew the deceased much better than he did.

 Mr A had a legitimate expectation that the complainant would attend to the responsibilities associated with his job rather than depart to the pub. I found that the Complainant had not reflected on this expectation at that time and got lost in his coping strategy.

I did review the staff handbook, which is outdated. I noted that the Respondent did not action any of the management techniques directed towards incidences such as absences. Instead, the Respondent engaged in a knee jerk sanction once more without records and crucially without an  opportunity for everyone to be heard under the umbrella of fair procedures.

I have not found evidence of a resignation by word or deed.

Instead, I have found that the Complainant was dismissed from his employment on the morning of December 18, 2019. I accept that the Respondent had a service imperative in animal husbandry and welfare, however, I am mindful of the Complainants evidence, when he said replacements were never affected that quickly and service gaps were habitually populated by multi-tasking.

I must accept the Complainants argument that he was dismissed as I established a crescendo of growing intolerance towards the position adopted by the complainant towards his job by the Respondent from the evening of December 16 onwards and it manifested in a unilateral replacement of the complainant during December 17, which was in turn communicated to him orally on December 18.  That , in my opinion constituted a dismissal .

There was no appeal of this decision which was never communicated in writing.

Neither party explored their legal obligations regarding notice prior to leaving the employment.

I find that the Respondent cannot rely on the argument on resignation and that the Complainant was summarily dismissed on December 18, 2019.

As this dismissal was not recorded or prefaced by application of the company procedures, I must deem the dismissal to be an unfair dismissal both substantively and procedurally . I did not establish substantial grounds covering the dismissal which veered significantly outside the “ band of reasonableness “ contained in Section 6(7) of the Act . The Respondent cannot rely on Section 6(4) of the Act .

I found this case to be poignant. The parties had a mutually respectful employment relationship prior to December 16, 2019.

The Respondent experienced a disconnect and distraction from an employee who had experienced sudden death of a friend in the course of his work. This for most  people would be  a once in a lifetime experience and I share the Complainants view that he would have benefitted from being “cut some slack “in the common-sense version.

However, I found that the Complainant failed to appreciate the enormity of the impact of his absence on the business high standards and ever readiness for  external scrutiny or inspection . I agree with the Respondent Counsel that he did contribute somewhat to his own demise.

However, I am left with the observation that “two wrongs don’t make a right “The Respondent was angered at the lack of regard and respect demonstrated by the Complainant when he absented himself from work over Dec 16 and part of Dec 17. This ought to have been addressed through a procedural framework but was overtaken by a summary dismissal without recourse to appeal. In other words, the Respondent took a procedural short cut.

It was open to the Complainant to seek reasons for his dismissal within 14 days, but he did not advance that.

I note that the complainant was not provided with a new contract of employment on his return to work in January 2018. The two-page contract exhibited reflected 2013 agreements.

Section 4 of Walk-through Working Life is devoted to the context of ending employment and I would advice both parties to review this. I appreciate that this advice was not live in the context of the occurrences of this case, however, it is a well written example of best practice in the specialised horse industry. I appreciate that it is not legally binding .

In all the circumstances of the case, I find that the Complainant was unfairly dismissed. However, on balance, I must find that he played an active role in his own demise, and I would request that he reflects on this.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the Complainant was unfairly dismissed with an established contribution to his own demise.

I find that time has moved on in this case and compensation is the only practical remedy open to me.

I was dissatisfied at the lack of evidence on Mitigation advanced.

I order the Respondent to pay the Complainant €5,820 comprised of 11 weeks salary and one week’s pay in lieu of notice.

Dismissal in Dispute, Unfair Dismissal