Complainant

Respondent

Anonymised Parties

A foreman

A kitchen supplier

Representatives

Self-represented 

Self-represented

Act

Complaint/Dispute 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-00036342-001

25/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00036342-002

25/05/2020

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

CA-00036799-001

15/06/2020

The complainant started to work for the respondent on the 24th October 2007, albeit there were two later breaks in this employment. Most recently, the complainant commenced employment with the respondent in mid-2016. He received gross pay of €687.62 per week. The fact of dismissal is in dispute as are the circumstances around the ending of the employment. The complainant commenced new employment on the 22nd June 2020. There is a Terms of Employment (Information) complaint as well as a section 13 dispute relating to staying at home and returning to work during the Covid-19 pandemic.

The complainant outlined that he was the foreman at the respondent facility and a senior member of staff. His gross pay was €687.62 per week. During the first lockdown in 2020, he and his colleagues felt that they should stay at home, but the respondent said that they should try to go to work. The respondent owner sent photographs of the company bank account. The complainant said that his colleagues contacted him to say that they felt under pressure to go to work.

The complainant outlined that he had wanted to return to work on the 18th May 2020, but the respondent said ‘no’. The respondent then contacted other colleagues for them to return. The complainant said that the respondent owner was angry with him, but they still reached an agreement for the complainant to return to work. The respondent suggested that the complainant work a back week, but the complainant objected to this. He noted from the bank account photograph that there was an overdraft facility available to the respondent. The complainant said that he submitted the first complaint when the respondent refused to allow the complainant back to work. The complainant said that the respondent owner had made it known that the complainant had left because he had taken a case to the Workplace Relations Commission.

The complainant said that he was not provided with a written statement of the terms of his employment, and it was for the employer to do so. He had reached a verbal agreement with the respondent regarding his terms.

The complainant said that he was never allowed back to work. The respondent told the complainant in early June 2020 that he had to take the back week in order to return to work. The complainant said that everyone else went back on the 25th May 2020. The complainant stated that the date his employment ended was the date of the complaint to the Workplace Relations Commission, i.e. early June 2020.

The complainant outlined that he never resigned. The respondent had told colleagues that the complainant left because the complainant had taken the WRC route. The complainant outlined that he was owed one week of annual leave and was owed 2.5 hours of overtime. The complainant outlined that he commenced new employment on the 22nd June 2020 on similar money.

The complainant outlined that everyone was scared during the first lockdown, and no one wanted to work. The respondent wanted to keep working even in the first lockdown. The respondent had the overdraft and there was no requirement for the complainant to accept the back week. The complainant was then in receipt of the Pandemic Unemployment Payment and needed to be paid immediately and could not wait for the back week.

The respondent outlined that it had been operating at a loss over the last two years and was still in a vulnerable position. They were only properly back to work in 2021.

In respect of the annual leave claim, the respondent acknowledged that the complainant was due a week of annual leave at the time of the lockdown. The respondent stated that during the initial lockdown, they were all, in a sense, on a holiday. The complainant was not paid the week of annual leave because he had not given two weeks’ notice. The respondent stated that it was an agreed term that the employee would not receive holiday pay if they did not give notice.

The respondent stated that it had not dismissed the complainant and the complainant had been unreasonable in not returning to work. The overdraft was only for emergencies and only €5,000 while the weekly wage bill was €4,000. The respondent stated that the complainant left voluntarily on the 18th May 2020 and the respondent had tried to get him back to work on the 15th, 17th and 20th May.

The respondent owner outlined that he has known the complainant since they were teenagers, and the staff were all friends. While the respondent owner became aware of the need to have written contracts, they were not provided because they are all friends and things were running smoothly. The respondent owner said that he allowed employees flexibility in terms of being late and extending the length of time of paid tea and lunch breaks. They had a relaxed policy on using social media at work. Staff were paid on a Thursday of the week worked, including being paid for the next day. The respondent outlined that not having a contract helped employees.

The respondent outlined that the complainant had previously left without giving notice during the recession when he took up a new role. The respondent had showed him loyalty by re-employing the complainant and by making him foreman. The complainant also handed in his notice in the summer of 2016 and was re-employed two weeks later.

The respondent outlined that the complainant had only once mentioned not having a contract and this was in their discussions about returning to work from the lockdown.

In respect of the back week, the respondent outlined that they were all on the back week with the PUP, so the complainant would have been paid the PUP €350 on a Tuesday and then €600 in wages on the following Thursday. The complainant could have come back and got full pay the following week.

The respondent owner said that both he and his step-son offered to pay the complainant directly, but the complainant insisted that the wages go through the company.

The respondent outlined that they had been allowed wind down projects when the lockdown was announced. The complainant had caused difficulties in the group about the ongoing work and the respondent had agreed to stop working. While the respondent had referred to a letter confirming them as essential workers, he had never referred to this as a ‘golden ticket’. The respondent cited the project of the nursing home owner, who was temporarily residing in the nursing home but had to leave for Covid reasons. The respondent said that the income from this job would have meant not needing to put staff on a back week.

The respondent owner outlined that he sent two or three messages regarding going back to work. He had mentioned his daughter continuing to work in a shop in the context of them being able to work in houses which were empty. He explained that they were doing essential work and staff did not have to do it. The respondent owner explained what the future held if they did not work. The respondent said that it was the complainant’s actions that caused the need to move to a back week, but then refused to accept it.

The respondent owner outlined that the complainant had undermined him on the Whatsapp group and influenced others in not supporting the respondent. The complainant’s messages could be seen to have incited others not to go back to work.

In respect of the Whatsapp messages, the respondent owner referred to wanting to do the essential work available in order to save the business. The complainant had called him a disgrace, and this made it easier for everyone else to row in behind the complainant. What the complainant had said was not true. The respondent owner was not making people feel guilty and this was essential work. The respondent owner said that he never asked anyone to break the law as this was essential work.

The respondent owner outlined that while the complainant said that they would revert to him in two weeks, this did not take place. He said that the complainant’s message completely undermined him. This occurred in March 2020 and the respondent still offered the complainant his job back as they needed him to work with a new saw and to clear the backlog.

The respondent owner outlined that they were all friendly on the group chat, but this episode showed that this was unwise. The complainant had later referred to a ‘genuine’ offer of essential work, but the previous offer had also been essential.

After deciding not to go back to work, the complainant could have contacted the respondent owner about wishing to go back to work. On the 15th May 2020, the Government said that outdoor workers could return. While most of the respondent work was indoors, their competitors returned to work on this day. The respondent owner was confused why the complainant now wanted to return to work while the situation related to outdoor construction was unclear. It was envisaged that there were all to go back in early June.

The respondent said that it never threatened to cut off anyone’s Covid payment, see the handwritten letter from a named colleague, dated the 17th July 2020. The respondent owner outlined that every business in the yard they worked in was then open. The public were then allowed to have a kitchen installed where there was no kitchen. The respondent did not get the benefit of this work because of the complainant’s refusal.

The respondent referred to the statement from the named staff member regarding the complainant stopping people going back to work and saying that the respondent had not put any pressure on him. The staff member made a second statement stating that the complainant had offered excuses for an employee to give so as not to return to work. The respondent referred to the messages between this staff member and the complainant.

The respondent owner referred to the statement of another staff member, who is the complainant’s brother in law. This statement was provided voluntarily.

The respondent owner outlined that he messaged the workers about returning to work. He said that everyone could return to work on the 18th May 2020 and if they did not wish to return, it was up to them to report this to the State. The respondent owner said that he had not threatened anyone.  He said that they were allowed to do indoor work if it was for an outside facility, for example a BBQ top.

The respondent owner referred to two messages which indicate that a named staff member would not return to work because of the complainant. No pressure was ever placed on employees to go back to work.

The respondent owner said that a named staff member phoned him to say that he had changed his mind about going back to work, attributing this to the complainant.  The respondent owner cursed at the staff member, which the respondent owner accepted that he should not have done.

The respondent owner outlined that he did not have the opportunity to inform people in writing regarding the back week proposal. He had not known when they would return to work in order to plan this proposal. The respondent outlined that staff had to agree to the back week in order to return to work. The respondent owner would not allow staff on site without their agreement.

The respondent owner said that most of the employees did not go back in March because of the complainant while his son in law did not return because of his wife’s health.

The respondent owner outlined that the complainant sent him a message to say that he was returning to work the following day and was expecting his contract. This was unreasonable given that this was already the afternoon. He had since given contracts to everyone. He did not open the business the following day in case the complainant came to work and suggested the complainant stay on the PUP. The complainant then asked to return to work on the 20th May and to be paid as normal.

The complainant then indicated he would return to work on the 25th May 2020. His colleagues had agreed to work the back week. The complainant should have taken the money from the son in law of the respondent owner, and they could have looked at the back week again. The respondent owner never replied to this message.

The respondent owner said that he texted the complainant again on the 8th June 2020, repeating the back week proposal. By then, the complainant had referred the complaint to the WRC and the respondent had to wait for this.

In respect of the messages exchanged between the complainant and the respondent owner, there was the group message regarding the nursing home job and this being essential. The complainant was argumentative in this conversation. The respondent owner stated that they would work on the Monday after the first lockdown to wind down jobs. The complainant questioned this and forwarded a media story about the lockdown. The respondent owner said that he had raised his financial concerns as these concerns were the reality. The complainant had mocked him, but the business was on the brink. The respondent needed the back week to keep the business going and it was unfair for the complainant to mock him. The respondent owner outlined that the complainant had put his foot down in the group conversation, despite the replies of the respondent owner’s son.

In private messages, the respondent owner outlined that the complainant said that he now thought it was okay for him to work. They had a long phone conversation on the Saturday and on the Sunday, the complainant messaged again regarding going back to work the next week but objecting to the back week. The respondent owner replied by saying the back week was reasonable. The respondent owner explained that the complainant would get paid from the Government one week and the next week from the employer. The respondent owner said that he took the complainant’s message of the 20th May 2020 and the reference of going to the WRC as the complainant leaving his employment. The respondent owner said that they were already back at work, and they could not leave the job open.

The respondent owner outlined that he had explained to a name staff member why they would return in late May 2020, but the complainant persuaded the staff member otherwise. This staff member apologised for drunken texts and the respondent owner replied that he was fighting to save all seven jobs including the complainant’s job.

CA-00036341-001

This is a complaint pursuant to the Terms of Employment (Information) Act. Section 3 of the Act requires an employer to provide to an employee a statement of the terms of their employment. This should be provided within two months of the commencement of the employment and the failure to do so is a subsisting breach of the Act. This has been a legal requirement since the 16th May 1994.

The complainant initially started working for the respondent in 2007 and the most recent phase of employment commenced in mid-2016. It is accepted that in this time the complainant was not provided with a statement in accordance with section 3 of the Act. Section 3 provides that important terms should be set out in writing to the employee, for example when they will be paid. I note that the respondent has since provided staff with contracts and that its view was that there were very good informal terms beforehand.

It is clear, however, that there was a contravention of the Act as no statement was provided to the complainant over the years of his employment. Such a statement may have assisted the parties in managing the employment relationship, especially when hit with the unprecedented consequences of the Covid-19 pandemic.

The Terms of Employment (Information) Act transposes EU law, the Written Statement Directive of 1991 (91/533/EC and latterly, Directive 2019/1152). Redress must, therefore, be ‘effective, dissuasive and proportionate’.

In the circumstances of the case, I award redress of €1,500 for the contravention in respect of section 3 of the Terms of Employment (Information) Act.

CA-00036341-002

This is a dispute pursuant to section 13 of the Industrial Relations Act. This requires that I make a recommendation on the merits of the dispute.

I have dealt with the differences between the parties regarding the back week in the Unfair Dismissals complaint. I also note the different perspectives of the parties regarding when it was appropriate to return to the workplace.

The outstanding issue for this recommendation is the complainant’s entitlement to holiday pay of one week. This was accrued annual leave and remains owing to the complainant. No contractual term could forfeit this entitlement, in particular to statutory leave. I, therefore, recommend that the respondent pay to the complainant the one week of annual leave due, i.e. €687.42.

CA-00036779-001

This is a complaint pursuant to the Unfair Dismissals Act. The complainant outlined that he was effectively dismissed in not being allowed to return to work. He cites the 12th June 2020 as the date of dismissal. The respondent asserts that the complainant resigned his employment and refused a reasonable request to return to work.

The definitions section of the Unfair Dismissals Act defines ‘dismissal’ as follows:

‘(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 expiry of a fixed-term contract, not relevant here]’

The Unfair Dismissals Act envisages scenarios where the employee is dismissed by their employer, or where the employee resigns. In this case, there was no letter of dismissal, nor was there a letter of resignation.

The case law has found that an employer can, through their actions, dismiss an employee without explicitly stating that the employee is dismissed. In Duggan v A&T Services (UDD 1737), the Labour Court held that taking away the claimant’s van was a ‘proxy’ for his dismissal. In Devaney v DNT Distribution (UD 412/1993), the employer’s words and actions were said to constitute dismissal (angry words and a voicemail).

The case law sets out that “A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by a subsequent unilateral withdrawal of the resignation. Where adequate notice is given, the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract.” [Millett v Shinkwin [2004] ELR 319].

The events in this case took place against the backdrop of the upheaval wrought by the Covid-19 pandemic. The respondent, an established specialist business in the construction sector, availed of the wage supports schemes (the Temporary Wage Subsidy Scheme and the Employment Wage Subsidy Scheme). The complainant and his colleagues availed of the Pandemic Unemployment Payment. They were not paid by the employer during the lay-off.

As set out in the evidence, there was a great deal of communication amongst the respondent staff about the impact of the lockdown. This took place on Whatsapp. There was also direct communication between the complainant and the respondent owner by phone, email and Whatsapp. It is fair to say that the parties clearly expressed their views and that some of the communication was robust.

The complainant and respondent owner differed in the approach to be taken at the start of the March 2020 lockdown and when they could reopen. They differed about whether staff should now work a back week, i.e. not be paid immediately for the first week of employment following the re-opening of the respondent. It was the respondent position that the complainant could return to work once he accepted the revised remuneration terms. The complainant did not accept these terms for his return to employment.

While there may have been cash flow issues in any business in these circumstances, I note that the respondent had a backlog and new equipment. It availed of the subsidy schemes. I note that the complainant’s income was significantly reduced during the lockdown, even after receiving the PUP. There was no contractual basis for the respondent to insist on the revised pay terms as the complainant would now be at work and clearly did not consent to the change. It also would have resulted in a delay in when the complainant would be paid wages after the end of his entitlement to PUP.

The key event is the string of messages between the complainant and the respondent owner in and around the 18th May 2020. They differed whether the complainant should have to work a back week. This issue was not resolved and notwithstanding this, the complainant indicated that he was going to return to work. The respondent owner had previously indicated that the facility would re-open. In his reply, the respondent owner stated that the facility would not now open the following day. This was a step taken by the respondent to ensure the complainant could not return to work. This was an extraordinary measure to take. If the complainant returned at this time, no doubt their differences over pay would have continued. However, this was an issue to resolve in due course, with the complainant back at work and as mentioned in the evidence, using the new machine. Shutting the business to prevent the complainant returning to work constitutes a clear act which indicates that the respondent intended to terminate the complainant’s employment.

The complainant did not resign. While he and the respondent owner differed whether his payment terms should change, the complainant did not end his employment. Rather, the complainant indicated that he would return to work (the opposite of resigning), but the respondent shut the business to prevent this.

I have found that through its actions, namely shutting the business to prevent the complainant returning to work, the respondent dismissed the complainant. The dismissal was an unfair dismissal as there were no substantive grounds justifying the dismissal and it was procedurally unfair.

In respect of redress, I note that the complainant obtained new employment on the 22nd June 2020 on a similar level of pay. While the complainant commenced working for the respondent in 2007, there were breaks in this employment, with the last phase of employment commencing in 2016.

I note the definition of ‘financial loss’ in the Act: “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation.’ The extent of financial loss attributable to the acts, omissions and conduct of both employer and employee can be taken into account.

Here, there are two elements to the financial loss incurred by the complainant. The first element of financial loss is the loss of income incurred in the period between the dismissal and the complainant commencing new employment. The complainant cannot be faulted for finding equivalent employment so quickly during a pandemic. The second is the loss of the entitlement per the Redundancy Payments Act and this loss of value is attributable to the unfair dismissal. This is assessed according to the complainant commencing employment in 2016 as the previous periods of employment would not be reckonable.

Taking these elements together, I find that an award of €4,000 is just and equitable redress in the circumstances.

CA-00036342-001

I decide that this complaint pursuant to the Terms of Employment (Information) Act is well-founded and the respondent shall pay to the complainant redress of €1,500.

CA-00036342-002

I recommend that the respondent pay to the complainant €687.42 in respect of owed holiday pay.

CA-00036779-001

I decide that the complainant was unfairly dismissed, and the respondent shall pay to the complainant €4,000 as redress for the unfair dismissal.

Covid-19 pandemic / lay-off

Terms of Employment / Unfair Dismissal / Holiday pay