Complainant

Respondent

Parties

Sean  Byrne

Actavo Industrial Solutions (Ireland) Limited

Representatives

Andrea Cleere SIPTU

Lydia Dodd Ibec

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-00035111-001

09/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00035111-002

09/03/2020

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and three witnesses for the respondent gave their testimony under affirmation.

CA-00035111-001

The complainant submitted that he was constructively unfairly dismissed. The complainant worked with the respondent as a General Operative for seven years.  A Health and Safety incident took place in the afternoon on 19 October 2019.  The complainant met with two members of the management team on the morning of 20 October and following this meeting was left waiting all day in a portacabin.

The complainant submitted that he subsequently met with a member of management in the portacabin at about 4 pm and was told that he had a letter in his pocket regarding the decision and that he could appeal but there would be no point as the Managing Director would dismiss him anyway.

The complainant felt that he was in an impossible position and felt that he had no option but to walk away, that his job was lost and that he had no chance of getting it back.

The complainant submitted that the procedures laid down in his contract were not followed in that he was not allowed representation at the meeting on 20 October 2019.  The complainant submitted that the failure to provide representation amounted to a fundamental breach of his contract.

The complainant submitted that he was put in a ‘resign or be dismissed’ type situation and he gave a verbal resignation.  The complainant submitted that it was an incredible position where the project manager accepted an employee’s verbal resignation.  The complainant submitted that he suffered from mental health challenges.

CA-00035111-002

The complainant submitted that he was entitled to the payment of notice in the circumstances of the termination of his employment.

CA-00035111-001

The respondent submitted that the complainant was not unfairly dismissed and further submitted that no dismissal occurred.

The respondent submitted that following the incident on 19 October 2019, the respondent began an investigation in relation to the incident as required under its Health and Safety obligations.  As part of that investigation the complainant met with its regional safety representative who compiled and investigation report.

The respondent submitted that this was handed to the Senior Managers on site who consulted with the HR advisors.  The HR advisors recommended that the complainant should be suspended on paid leave while the disciplinary process took place.

The respondent submitted that the head of operations on site met with the complainant to given him the letter of suspension but was not allowed to do so as the complainant resigned with immediate effect.

The respondent submitted that no dismissal took place as the complainant resigned.

CA-00035111-002

The respondent submitted that as the complainant resigned he was not entitled to a notice period.  He was paid any outstanding wages and had exhausted his leave allowance up to that point.

CA-00035111-001

The complainant gave his evidence in an open and honest manner.  His evidence indicated that he was not clear on some of the details of the incident or of what occurred on the following day, the day of the investigation.  He gave evidence that following the investigation of the incident he met with the head of operations who told his that he was being let go or he could simply resign.

The head of operations gave his evidence in a clear and concise manner.  He indicated that he had a letter of suspension for the complainant who would not accept the letter but rather apologised for putting the ‘lads‘ through this and resigned.

The complainant confirmed that he did not see the contents of the letter but gave his resignation rather than accept the letter.  On balance, I prefer the respondents account of events.

The respondent submitted that it allowed for a five day ‘cooling off’ period before it wrote to the complainant to accept his verbal resignation.  The respondent submitted that it had a grievance procedure in place which the complainant could have followed but didn’t.

The complainant’s representative suggested that it was incredible that the head of operations would accept a verbal resignation without any follow up.  I am satisfied that this aspect of the cessation is not fatal to the respondent’s arguments.

The complainant’s representative also submitted that the respondent breached its own procedures when the complainant was interviewed without representation.  The respondent pointed out that while it is true that at all stages of the disciplinary process an employee is entitled to be represented,  the interview was of a fact-finding nature under its Health and Safety procedures/obligations and is not required to be undertaken with representation present.

Having considered all the written and oral evidence presented in this case, I am satisfied that the complainant resigned without exploring all the options available to him.  I am also  satisfied that there were a number of options open to him at that stage.  Accordingly, I find that the complainant was not unfairly dismissed.

CA-00035111-002

As I have found that the complainant resigned in circumstances that did not amount to unfair dismissal, he was not entitled to payment of notice under the Act.

CA-00035111-001

Having regard to all the written and oral evidence submitted in relation to this matter, my decision is the complainant was not unfairly dismissed.

CA-00035111-002

Having regard to all the written and oral evidence submitted in relation to this matter, my decision is that the Minimum Notice and Terms of Employment Act, 1973 was not contravened.

Unfair Dismissals Act - Constructive dismissal - not upheld – resignation – no entitlement to notice