Complainant

Respondent

Parties

Paul  Flanagan

Holbury Limited Safe-stride

Complainant

Respondent

Anonymised Parties

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Representatives

Barry O'Donoghue Ferrys LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00042474-001

14/02/2021

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

CA-00042475-001

14/02/2021

The Complainant withdrew CA 42474 -01

The Complainant was good friends with two of the Sweeney brothers, both of whom were Directors of the Respondent Company.  He started working for the Respondent Company in January 2010. He had a great relationship with the two Directors Liam and Kieran.  He originally started off as a General Operative but later on he got a diploma in accountancy. When one of the girls left, he moved into that role. That worked well for everyone for a number of years. 

In November 2019 his father died. He had an issue with cocaine prior to that but after his father died it got much worse. He decided to get professional help for that addiction. His GP recommended a residential treatment course. Cuan Mhuire interviewed him three times. On the third interview he was accepted for treatment. He started the next week, 7th July 2020.  The company were supportive. They asked the Complainant to meet with Mr. Garry who carried out the Respondent’s HR function. He did arrange to meet him. During that meeting Mr. Garry told him that his job would we there for him when he finished his treatment. He did say the actual role might not be but there would be a job for him.

The Respondent on the 10th July sent a letter to the Complainant. The Complainant states that he did not see that letter until the Respondent submitted it for this hearing. It refers to the meeting on the 7th July. However, the Complainant notes that it was sent to the wrong address. The letter states “ thank you for attending the review meeting on Monday last. In that regard we are pleased to confirm the following:

A.      XXX has confirmed your enrolment in a 20 week course in Cuan Mhuire.

B.      The employment position and responsibilities which you vacated in Safe Stride will be assigned to another individual.

C.      On completion of the course you will contact the company at least two weeks in advance to inform us of your decision as to whether or not you intend to return to work to an alternative position in Safe Stride.

If the complainant had known that his job was in jeopardy, he would have sought non- residential treatment.

He did receive an additional weeks’ wages on the 7th July. He felt it was a good will gesture “ from the lads”.

The Complainant did eight weeks at the course. He did not feel safe there. One guy got beaten up very badly. He was scared. He discharged himself and returned home in late August. He went up to the company. He met with Kieran and Turlough Sweeney. They had a meeting for just short of an hour. It was a very friendly meeting. Turlough Sweeney said he wasn’t expecting him back until November. The Complainant accepted that. He was in no doubt about returning in November. He did think it was a bit strange that they wouldn’t make arrangements for him to return sooner. In November he made contact with them again. He went up to Kieran Sweeney. Mr. Sweeney told  him that there was nothing available until January. His role in accounts was not available at all. Mr. Kieran Sweeneys’ sister in law was doing his role. The Complainant was on illness benefit up until he left treatment.. After that he applied for the PUP.

On 1st December at 13.57 the Complainant sent a text message to Turlough informing him that his illness benefit had stopped  and that he  was intending to apply for the PUP. He told him to say there was no work for him at the moment if the authorities ask and to tell him he was out sick before that.

The Complainant did do a small bit of work for his brother at that time.

On the 3rd December he was contacted by Liam Sweeney and asked if he could meet him on the Malahide road. At the meeting Mr. Sweeney said, when he went to Cuan Mhuire  he effectively had resigned his position. He said twenty weeks was just too much.

By letter dated 2nd December,  which letter was not received until after the meeting on the 3rd the Respondent stated: “Turlough shared your recent WhatsApp message with Liam and I. Needless to say we understand and appreciate how difficult the situation is at this time, however in circumstances were the company is contacted by the department we would have to disclose the fact that you no longer work with Safe Stride……..”

The Complainant replied by letter stating “Your letter states that I no longer work for Safe Stride, I never resigned or left Safe Stride so I do not understand how you have come to that conclusion.  You might therefore clarify for me why you believe that I no longer work for Safe Stride…… “ he sent it by email.

He was contacted by Liam Sweeney who asked him to come to his house for a chat. He said that he wanted to get legal advice before he did that. He then told him that following advice given, he would not be able to talk to him.

On the 21st December he received a letter from the Respondent. Therein it stated that he had commenced employment with another entity, and they would not be commenting further on the matter. They were referring to his brother.

Firstly, they stated that he had resigned his position and then the narrative changed, and they stated that he had taken up employment with another entity.

The Complainant made efforts to get employment. He applied for jobs with Bus Eireann, M&S, Trade Speed, Alucraft, Jobs.ie to name but a few.  He has had no luck.

The Respondent did not call any evidence. Mr. Garry was asked if he wanted to reconsider his position. He responded that he did not. He was reminded that if evidence was not called, the Complainant’s evidence would remain uncontested.

The Complainant’s uncontested evidence was that he had a good relationship with the Respondent’s directors. He went to school with one of the Directors and was a good friend of the other. All was going well until the November 2019 when his father died. His cocaine habit got out of control. He sought help from his GP. Residential treatment was recommended. The complainant informed the Respondent that it was his intention to do a twenty week residential treatment course. They were very supportive. He had to do several interviews before he was accepted onto the course. When he finally got a place, he informed the Company. They asked him to meet with Mr. Garry who carried out their HR function. He did meet with Mr. Garry at the Greendale shopping centre. He was informed that there would always be a job for him. The Company couldn’t guarantee his exact position, but he would have a job. The Respondent submitted a letter to WRC dated the 10th July. It was sent to the wrong address. The Complainant said that he did not see that letter until it was filed with the WRC.  That letter stated:

“A.          XX has confirmed your enrolment in a 20 week course in Cuan Mhuire.

B.            The employment position and responsibilities which you vacated in Safe Stride will be assigned to another individual.

C.            On completion of the course you will contact the company at least two weeks in advance to inform us of your decision as to whether or not you intend to return to work to an alternative position in Safe Stride”

The Complainant left the treatment centre early as he had fears for his personal safety. He made contact with the Respondent immediately and was informed there would be nothing available until November, as they had been informed that he would be in the treatment centre until November. I note that at that juncture the Respondent did not express surprise at him returning due to the fact that they thought he had resigned. There was no mention of resignation or anything of that sort then.  I also note the letter dated the 10th July also left the door open for him to recommence his employment after treatment.

When the Complainant made contact in November, he was informed that there would be nothing available until January. At a meeting on the Malahide road on the 3rd December the Respondent informed him that to leave for twenty weeks was just too long and they deemed that to be a resignation. That was not set out in correspondence of the 10th July, nor was it discuss with him when he had his meeting with Mr. Garry before he commenced treatment. I can only conclude, based on the uncontested evidence that the resignation was an after -thought of the Respondent’s when it didn’t suit them to have him back in the Company.

I am fully satisfied that the Complainant did not resign his position. He was dismissed by the Respondent in a very under handed way.

I am satisfied that the Complainant made efforts to get employment which proved very difficult due to the pandemic. 

In all of the circumstances I find that the complaint is well founded. I find that compensation is the appropriate remedy due to the break down in the relationship between the Complainant and the Company.  I am awarding the Complainant €20,000.00

The complaint is well founded.  I award the complainant € 20,000.00