FULL RECOMMENDATION
PARTIES : CLADDAGH RING LIMITED T/A CLADDAGH JEWELLERS DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No.ADJ-00031007 CA-00041453-001, The Adjudication Officer decided to ‘dismiss the claim of unfair dismissal’. The fact of dismissal is in dispute. Withdrawal of two appeals The Adjudication Officer made three decisions under the Act. In each decision the Complainant was identified as Nima Amjadi and the Respondent was identified as Claddagh Ring Limited T/A Claddagh Jewellers. Each decision was appealed by the Appellant to this Court. At the hearing of the Court the Appellant accepted that, a first decision having been made by the Adjudication Officer in his complaint against the Respondent, any subsequent decision under the Act which identified the Respondent and Complainant in identical terms, was a nullity. He agreed that only one appeal could be in being against a decision of an Adjudication Officer in his complaint of unfair dismissal against the Respondent in respect of a single alleged act of dismissal on a single date. He withdrew two appeals against decisions of the Adjudication Officer which involved identical parties under a single Act. Preliminary matter The Respondent submitted as a ‘preliminary objection’that the within appeal was made out of time having regard to the time limits set out in the Act at Section 44. The Respondent submitted that the Appellant had not attended the hearing of the matter before an Adjudication Officer on 21stJune 2021 and that, on that day, the Adjudication Officer had stated that the complaint was dismissed. The Respondent submitted that, consequent on the making of an oral statement by the Adjudication Officer on 21stJune 2021 to the effect that the complaint was dismissed, the Adjudication Officer must be understood as having made a decision in accordance with the Act on that date and consequently that the ‘clock’ started in terms of the time allowed for the making of an appeal at that point. The Act of 2015 at Section 41(5)(a) provides as follows: 41(5) (a) An adjudication officer to whom a complaint or dispute is referred under this section shall— (i) inquire into the complaint or dispute, (ii) give the parties to the complaint or dispute an opportunity to— (I) be heard by the adjudication officer, and (II) present to the adjudication officer any evidence relevant to the complaint or dispute, (iii) make a decision in relation to the complaint or dispute in accordance with the relevant redress provision, and (iv) give the parties to the complaint or dispute a copy of that decision in writing At section 44(3) and 44(4) makes provision as follows: 44(3) Subject to subsection (4) , a notice under subsection (2) shall be given to the Labour Court not later than 42 days from the date of the decision concerned. (4) The Labour Court may direct that a notice under subsection (2) may be given to it after the expiration of the period specified in subsection (3) if it is satisfied that the notice was not so given before such expiration due to the existence of exceptional circumstances. In the within appeal the Adjudication Officer issued a document to both parties wherein he set out the detail of his decision in relation to the within appeal. He stated in that document that “As the complainant did not attend the adjudication to advance the complaint, I decide, pursuant to section 8(1)(c)(iii), to dismiss the claim of unfair dismissal” That document was dated 6thSeptember 2021. The Court has considered the submission of the Respondent in relation to these matters. The Respondent has submitted that Section 44(3) of the Act should be interpreted as meaning that once the Adjudication Officer made an oral statement at a hearing as alleged, the Adjudication Officer became functus officio for the purposes of that Section of the Act. In effect, once that oral statement was made no subsequent action of the Adjudication Officer had meaning in terms of the Act at Section 41(5)(3). No authority has been put forward for this proposition. The Court notes that the Adjudication Officer recorded in writing in a statement made in the present tense in the document dated 6thSeptember 2021 that “I decide…..”. The Court, at its hearing, invited the Respondent to make further and better submissions on this matter. The Court provided the Respondent with three weeks in which to make such further submissions in writing. In the event, some time after its hearing the Respondent notified the Court that no further submissions would be made on the matter. The Appellant ultimately notified the Court that, in light of the fact that no further submissions were to be made by the Respondent on the matter, he would similarly decline the opportunity to submit. The Respondent has asserted that the Adjudication Officer had made a decision within the meaning of the Act at Section 41 on 21stJune 2021 and that he communicated that decision to the Respondent alone by way of oral statement on that date. There is no contention that a communication was made by the Adjudication Officer with the Complainant in any form or at any time to the effect that he had made a decision in accordance with Section 41 of the Act on 21stJune 2021. On the contrary, the Adjudication Officer communicated in writing with both parties in a document dated 6thSeptember 2021 which conveyed a decision made by him under the Act. Having regard to the all of the above, the Court does not accept the submission of the Respondent and concludes that, on plain reading of the document dated 6thSeptember 2021, the Adjudication Officer exercised his jurisdiction under Section 41(5)(iii) of the Act of 2015 on 6thSeptember 2021 and, in accordance with the requirements of the Act at Section 41(5)(iv), gave a copy of that decision in writing to both parties in a document which recorded the date of the decision as 6thSeptember 2021. On that basis the Court concludes that the decision of the Adjudication Officer was made on 6thSeptember 2021 and that the within appeal, having been made to the Court on 5thOctober 2021, is in time. The Law Section 1 of the Act defines ‘dismissal’ for the purposes of the Act 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 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;” Section 6(1) of the Act provides as follows: 6.(1) 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 7(2) of the Act in relevant part states as follows: (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to— (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, Summary position of the Appellant The Appellant commenced employment with the Respondent in July 2015. He submitted that he was dismissed by the Respondent on 4thSeptember 2020. At the hearing of the Court, he clarified that he was not contending that he had been constructively dismissed but rather that he had been dismissed on that date. The Appellant became aware in 2018 of certain issues between two brothers of the family which was in ownership of the Respondent company. In March 2020 the shop which the Appellant managed was closed due to the global pandemic. In June 2020 he was requested by a member of the owning family to pack up the content of the shop which he arranged. In July 2020 another member of the owning family asked the Appellant about the computer system of the Respondent and asked him about the removal of stock from the shop. The Appellant arranged to put the family member on the computer system and advised him to raise any issue as regards the storage of the contents of the shop with his brother. A few days later the Appellant discovered that he himself had been removed from the Respondent’s computer system and the mails system for the Dublin shop. On 27thAugust 2020 the Appellant received a message from a member of the owning family that Court proceedings were in being between two members of the owning family. On Friday 4thSeptember, which was a pay day for the Appellant, he discovered that he had not been paid. He sought clarification from the accounts unit of the Respondent but received no response. At 16.34 on that date the Appellant received an e-mail from a member of the owning family stating that a decision had been made to suspend the Appellant’s employment and asking him to attend a meeting at a solicitor’s office on 10thSeptember 2020 to clarify the Appellant’s contracts and to discuss matters to do with the business. The Appellant submitted that, as manager of the business, he knew that if he was not to be paid on 4thSeptember 2020, a decision to that effect would have to have been made on the previous Tuesday in order for his pay and the issuance of a payslip to be stopped on that Friday. As a result of the non-payment of wages on 4thSeptember 2020 he was forced to leave work with no money for food or for travel to see his daughter. On 9thSeptember 2020 the Appellant e-mailed the Respondent to say that he would not attend a meeting in a solicitor’s office until he had received legal advice. On 10th September the Respondent e-mailed the Appellant to say that the short notice of his non-attendance at a meeting in a solicitor’s office had caused a lot of inconvenience and advising him that his terms of employment required him to be available and that he should have attended the meeting. That mail advised him that the meeting was re-arranged for 16thSeptember. It also stated that the Respondent was not aware of any reason why the Appellant would require legal representation at the meeting in the Respondent’s solicitor’s office but advised him that if he wished to be so represented, he could be. The Appellant submitted that, having been advised that his employment had been suspended on 4thSeptember without explanation, he was not aware of any term of his employment which would have required him to attend a meeting in a solicitor’s office on 10thor 16thSeptember. The Appellant submitted details of various interactions he had had with members of the owning family of the Respondent following his alleged dismissal on 4thSeptember 2202. Those interactions culminated in a meeting in the office of the solicitor for the Respondent on 16thOctober 2020 where no indications as regards his employment status were given to him. At the end of that meeting he was asked to provide the solicitor for the Respondent with copies of his contracts of employment which he did on 8thDecember 2020. He submitted that he had heard nothing further from the Respondent following the meeting of 16thOctober 2020. He submitted that he was ‘collateral damage’ in a disagreement between members of the owning family of the Respondent and that the suspension of his employment which was advised to him on 4thSeptember 2020 amounted to a dismissal within the meaning of the Act which was unfair. Summary position of the Respondent The Appellant, along with between 11 and 15 other staff, worked in the Dublin Shop of the Respondent. He was not dismissed. On 18thMarch 2020 the shop was required to close due to the global pandemic. The Appellant as a result carried out no work for the Respondent between that date and 4thSeptember 2020. The Appellant was receipt of a COVID payment, namely the Temporary Wage Subsidy Scheme (TWSS), from March 2020 until 4thSeptember 2020. At that point he was laid off by the Respondent and was in a position to apply for the Pandemic Unemployment Payment (PUP) which he may have done. In March 2020 Mr Andrew Fried, a member of the owning family, placed the Appellant on the TWSS. When Mr Philip Fried, another member of the owning family, took over the Respondent company from his brother he realised that the Appellant was not carrying out any duties for the Respondent and should have been laid off and not been on the TWSS. He would then be in a position to apply for the PUP. From 29thJune 2020 until September 2020 Philip Fried paid his wages to the Appellant while he was reviewing the employment payments of the Appellant. The TWSS was ceased by the Revenue Commissioners and on 4thSeptember Philip Fried wrote to the Appellant informing him that he was temporarily laid off due to “the inability of the company to reopen and trade from the Dublin shops where you worked. The Government funded COVID payments (the TWSS) that you were signed up for have now come to an end”. In that same e-mail the Respondent invited the Appellant to a meeting on 10thSeptember and the Appellant did not respond to that invite until 9thSeptember. At that point he made a demand for legal representation and that was agreed to on 13thOctober. On that occasion the Respondent invited the Appellant to a meeting on 16thOctober. At the meeting of 16thOctober, the Appellant undertook to supply the Respondent with contracts of employment and that was done on 8thDecember 2020. On that same date the Appellant initiated the within complaint of unfair dismissal. The Respondent made submissions to the Court to the effect that the Appellant had not demonstrated attempts to mitigate any loss suffered by him and asked the Court to consider the decision of the EAT in Sheehan v Continental Administration Co Ltd (UD858/1999) and of this Court in The Blue Door v Fitzgerald (UDD2126) where it was made clear that a significant burden rests upon a claimant to endeavour to mitigate his loss and any failure in that respect must be taken into account by the Court. In response to questions for the Court the Respondent accepted that the basis for the contention that the Appellant was laid-off was an e-mail of 4thSeptember from Philip Fried which advised him that the Respondent had taken the decision to suspend his employment. The Respondent submitted that the meaning of the message conveyed to the Appellant in that mail was that he was laid-off. It was accepted that it was the responsibility of the Respondent to ensure that the Appellant understood the meaning of a decision to suspend his employment. The Respondent also clarified to the Court that, whereas the Appellant was advised on 4thSeptember that a decision had been taken to suspend his employment and not to pay wages to him on that date, the wages which were withheld related to the period of one week prior to 4thSeptember 2020. Discussion and Conclusions. The Respondent submitted that the Appellant was not dismissed on 4thSeptember 2020 but that he had in fact been laid off on that date. It was submitted to the Court that an e-mail of 4thSeptember to the Appellant made him aware of that fact. The Respondent made no submission to the Court that the use by the Respondent of the term ‘lay-off’ related to a circumstance or meaning other than that defined in the Redundancy Payments Act, 1967 (the Act of 1967). The Court has examined the e-mail at issue and no explanation is given in that e-mail of the meaning of an assertion that a decision had been taken to suspend the employment of the Appellant. The mail at issue certainly contained no notice of the sort required of an employer who is engaged in the lay-off of an employee as defined by the Act of 1967 for the purposes of that Act. That Act at Section 11 states as follows: Lay-Off and Short Time 11. (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. It is clear that no communication of the Respondent to the Appellant on the 4thSeptember could be understood as amounting to notice of a reasonable belief on the part of the Respondent that the cessation of the employment would not be permanent. In any event no such notice was provided to the Appellant on any date prior to the alleged cessation of employment by way of what the Respondent contended to be lay-off. The Appellant submitted that he had expected to be paid on the 4thSeptember in respect of the prior week but that he did not receive the wages owing in respect of that period. The Respondent confirmed that the Appellant was not paid wages on 4thSeptember 2020. The Respondent also confirmed that any wages which fell due on that date related to the week prior to that date. The Respondent was unable to clarify to the Court how the Appellant could have been laid-off on 4thSeptember 2020 when in fact the Respondent had ceased paying wages to him one week earlier. Having regard to all of these circumstances the Court concludes, on the balance of probability, that the Appellant was not laid-off on 4thSeptember and was in fact deprived of wages without notice or notification with effect from a week prior to that date. The Appellant contends that he was unfairly dismissed on 4thSeptember 2020. It is common case that he was refused payment of wages due on that date and that he was advised by e-mail that a decision had been taken to suspend his employment. The question before the Court is whether the Appellant could reasonably and objectively understand himself to have been dismissed as he alleges on 4thSeptember 2020 and, relatedly, whether the Respondent intended to bring the contract of employment to an end by way of dismissal on that date. InTanner v Keane 1978 IRLR110, the employer, upon learning of the employee’s alleged misuse of a company van said “that’s it, you are finished with me.” The Tribunal concluded that when dealing with ambiguous words, the incident should be viewed in its entirety. In that instance the Tribunal concluded that the employer had uttered the words in the heat of the moment and could not reasonably be said to have intended to dismiss the employee. InMcKenzie Limited v Smith [1976] IRLR 345the indefinite suspension of an employee was considered to amount to a dismissal. In that case the employee was told he was being suspended for a few weeks and that it might be several months before he would be back at work. The Court found that an employer is not entitled to unilaterally suspend an employee unless there is some provision, express or implied, in the contract of employment. InDeegan v Dunnes Stores Ltd [1992] ELR 184an indefinite suspension was found to be tantamount to a dismissal. In the view of the Court in the instant appeal, the Appellant, having not been notified of the employer’s withholding of his wages and being advised in a short e-mail on 4thSeptember in response to his query as regards the non-payment of his wages, that his employment was suspended, it was reasonable for the Appellant to understand that, in fact, his employment had been terminated. He was given no indication or assurance that he would be engaged again by the Respondent and neither was he given any undertaking as to the meaning of a decision to suspend his employment and to cease paying wages to him with effect from a week prior to 4thSeptember 2020. The Respondent, in ceasing the payment of wages or in suspending the employment, did not rely upon any terms, whether expressed or implied, of the Appellant’s contract of employment. In this context, the Court considers it to be significant that (a) it appears to be common case between the parties that at the meeting between the parties on 16thOctober 2020, the status of the Appellant’s employment was not discussed and neither was he given any clarification as to the meaning of the Respondent’s assertion on 4thSeptember that his employment had been suspended, (b) at the meeting on 16thOctober the Appellant, at the request of the Respondent, undertook to supply a copy of his contracts of employment and the minutes of the meeting produced by the Respondent record that the “We left matters on the basis that the employment issues would be reviewed once the written contracts were to hand”, and (c)notwithstanding the Appellant supplied his contract of employment to the Respondent on 8thDecember 2020 no further engagement took place between the parties at all. In the view of Court, the Respondent undermined the central tenets of the contract of employment with the Appellant in that, without notice or notification, it ceased, on 4thSeptember 2020, providing work to the Appellant and a week earlier had ceased paying wages to him without notification and without so advising him. The assertion to the Appellant that his employment was suspended was not grounded in any term of the contract of the Appellant and was not grounded in any provision of the Act of 1967 and neither was the meaning of the terminology employed by the Respondent on the occasion explained to the Appellant at the time or at any time thereafter. The Court concludes that the Respondent did, on the balance of probability, intend to dismiss the Appellant on 4thSeptember. In the view of the Court, the Respondent’s decision made at least one week prior to 4thSeptember 2020 without notice or without informing him of the fact, to cease the payment of wages to the Appellant constituted evidence of an intent to cease the employment relationship and the later communication to him on 4thSeptember that payment of his wages had ceased a week earlier and that his employment had been suspended can, objectively, reasonably be understood as the termination by the Respondent of the contract of employment. Having regard to all of the circumstances therefore the Court concludes that the Appellant was, within the meaning of the Act, dismissed by the Respondent on 4thSeptember 2020. The Court further concludes that the dismissal was not the result of any misconduct on the part of the Appellant or that, within the meaning of the Act, there were substantial grounds justifying the dismissal. In those circumstances, by operation of the Act at Section 6(1), the dismissal of the Appellant on 4thSeptember 2020 was unfair. Redress The Appellant has sought an award of compensation as the means of redress in this case. It is clear to the Court that the trust between the parries has irretrievably broken down and that an award other than compensation would be inappropriate. At the point of termination of the employment the Appellant earned €33,500 per annum. The Court has, in accordance with the Act at Section 7(2)(c), taken into account the measures adopted or not adopted by the Appellant to mitigate his loss. The Appellant submitted that, following his dismissal, he had applied for only two jobs by January 2021 and (a) was offered employment commencing on 8th March 2021 on a salary of €28,000, (b) secured a second offer of employment with another employer commencing on 15thMarch 2021 and (c), secured a further offer of employment commencing on 4th October 2021 on a salary of €36,000 per annum. The Appellant has failed to demonstrate that he engaged in significant efforts to mitigate the loss suffered arising from his dismissal. He has confirmed that he had received offers of employment to commence in March 2021 which substantially mitigated the loss he suffered as a result of his dismissal and that an offer of employment to commence in October 2021 fully mitigated his loss. Having regard to all of these circumstances, the Court measures the compensation which is just and equitable in all of the circumstances as €10,000. Decision The Appellant was unfairly dismissed by the Respondent. The appropriate award is financial compensation and the amount of compensation which is just and equitable in all of the circumstances is €10,000. Compensation in that amount should be paid to the Appellant by the Respondent. The Court so decides.
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