Complainant

Respondent

Parties

Damian  Panusz

Derrycourt Cleaning Specialists Derrycourt Company Ltd

Representatives

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-00032158-001

13/11/2019

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

CA-00032160-001

13/11/2019

The Complainant commenced employment with the Respondent on 15/9/2017. The Respondent engages in the business of contract cleaning and facilities management services. The Complainant worked at the Respondent’s client’s premises at Fairgreen Shopping Centre Mullingar. The Complainant is claiming that he was constructively dismissed on the basis that he had no option but to resign with effect from 20/5/2019. The Respondent denies the complaint.

In the course of his written submissions and sworn oral evidence, the Complainant outlined the reasons for his resignation and he provided copies of the various correspondence in connection with the investigation and disciplinary process. The Complainant outlined an incident which occurred on 17 May  2018 which he described as being “accosted by the manager of my employer’s client company”. The Complainant stated that the incident gave rise to a “heated argument” between him and the Respondent’s client/Manager of the shopping centre and that he was treated “grossly unfairly”. Following the incident and on the same day, the (shopping) Centre Manager/Respondent’s client emailed a written complaint against the Complainant to the Respondent.  In the course of the complaint the Manager advised that “as from today his [Complainant’s] presence is no longer required in fairgreen centre and [I/we] request a new operative to replace him ASAP”. The Centre Manager’s complaint against the Complainant stated as follows:

“Upon arrival in fairgreen centre at Mullingar I informed Damien about the standard of cleaning of the toilets and mall floor. The toilet floor was dirty and the mall floor was not swept. Damien would not accept that there was anything wrong and became very aggressive and abusive towards me ( example, shouting cursing and invading my personal space very aggressive). I informed him that he could not shout and curse at me for pointing out these issues with his work, the abuse got louder and I felt threatened by his attitude. I asked him to leave my office as I felt this argument could get out of hand very quickly. Damien left the office banging the door and shouting profanities and I informed Derrycourt of events that occurred”.

Following the incident and complaint of 17 May 2018 the Respondent instigated an investigation and disciplinary process and the Complainant was placed on suspension. In that regard, the Respondent’s letter to the Complainant of 17/5/2018 stated that the suspension was  “to allow further investigation to take place following the allegation [of]:

·        Aggressive and intimidating behaviour

·        Refusal to take reasonable instruction”.

The Complainant stated that he strongly rejected the allegations against him and he stated that in the course of the investigation process he outlined  that the client’s Manager was verbally abusive to him, unfairly monitored him, constantly criticised him, spread rumours against him, blocked his career progression and polluted the work environment. The Complainant further stated that there was a lack of a proper management and supervision structure in place, that there was no clear formal reporting structure and that the Respondent allowed the situation to develop whereby the client or client’s Centre Manager “engaged with and instructed [the Respondent’s staff] in an inappropriate manner on a daily basis”. The Complainant also stated that he agreed to mediation with the Manager in the course of the investigation process.

The Complainant stated that the Respondent’s investigation process was grossly unfair and prejudicial against him for a number of reasons including that the Respondent expanded the investigation to build up a case against him and that the Respondent included issues not raised in the original complaint in order to “beef up” the case. Further, the Complainant stated that he was not provided with the notes of the disciplinary hearing which hindered his appeal nor Employee Handbook materials. The Complainant stated that colleagues were interviewed who were not relevant and had not witnessed the incident between him and the Centre Manager and that those interviews were not kept confidential. In that regard, the Complainant stated that he had been approached by members of his community about the investigation.

By letter of 23 July 2018, the Complainant was invited to a disciplinary meeting. The 23 July 2018 letter also stated that “During the investigation carried out we spoke to with several of your Derrycourt colleagues, and from all the meetings carried out we have concerns about the following items:

·        Allegations of threatening and aggressive behaviour

·        Potential breach of health and safety procedures

·        Potential breach of the respect and dignity at work policy

·        Inappropriate interaction with customers and staff of the fair Green shopping centre”.

The letter also advised the Complainant of his rights to representation although he attended the disciplinary hearing unaccompanied. Due to the Complainant being on sick leave the disciplinary process was extended. Prior to the disciplinary hearing, on 28 November 2018, the Complainant received a letter from the Respondent dealing with his sick leave. That letter also stated:

“Irrespective of the outcome of the disciplinary process, I wish to point out, at the client’s request, you will not be deployed to the Mullingar site at any stage in the future. As part of your contract, it is noted in the preamble to section 1, “The company reserves the right to transfer you to other location/contracts as necessary depending on the needs of the business and client approval”. As such we will have no option but to re-deploy you. We will inform you of the alternative site as soon as we have finished the disciplinary process”.

The Complainant subsequently received a letter dated 16 January 2019 inviting him to the disciplinary hearing which eventually took place on 18 January 2019.  The Complainant stated that notwithstanding the short notice he attended and fully participated in the disciplinary hearing. In his submission to the WRC the Complainant stated that there was no history of formal complaints regarding his work prior to 17/5/2018. Arising from the disciplinary process the Complainant was issued with a final written warning by letter of 22 January 2019 which stated- inter alia- that the Complainant had been found to “have behaved in a manner not in keeping with Derrycourts values……”. The letter also advised the Complainant of his right to appeal.  The Complainant appealed to the Respondent’s HR Manager by letter of 24 January 2019 stating – inter alia – that he did not feel the Respondent had taken account of  “the serious bullying and harassment” he was subjected to and enquiring if he was still an employee of the Respondent and whether he was still on suspension.  

The Complainant was notified of the outcome of his appeal by the Respondent’s HR Manager on 30 January 2019. Whilst the HR Manager found for the Complainant on one aspect of his appeal in relation to his not being informed of the customer care regulations, overall the Complainant’s appeal was not upheld and he was advised that “a proportionate sanction has been applied”. The appeal outcome letter also stated that it was open to the Complainant to have initiated the company’s Grievance Procedure in relation to his allegations of bullying or harassment. In relation to the matter of return to work, the Respondent’s HR Manager stated as follows:

“In November 2018, you were informed that you will not be deployed to the Mullingar site in the future. The request from the client was verbal. In keeping with your contract of employment, I note: “the company reserves the right to transfer you to another location/contracts as necessary depending on the needs of the business and client approval”. It is quite clear to me, that on the basis of [client Manager’s] statement that he “felt threatened by his (your) attitude”. I find your allegations about [client Manager’s] alleged bullying, would have prevented a normal working relationship resuming and under these circumstances. Irrespective of the client request, it would neither be feasible or responsible for the company to deploy you on that site (Mullingar) under these circumstances. The idea of a return to the site is simply untenable.

In relation to the continued employment, we are we not able to facilitate a return to site for the reasons outlined above. In this regard we will be looking to re-deployment to the next available role suitable to your position as a cleaning operative. However, I must point out, that if we do not have a suitable position available by Friday 8th of February 2019, the company will have no alternative to lay you off, in line with paragraph 13 of your contract of employment, until a suitable alternative role becomes available. A member of the HR Team will be in touch with you shortly to update you on suitable roles within Derrycourt”.

The Complainant stated that after the appeals process he contacted the Respondent regarding alternative employment. He stated that he made contact several times asking about his continuing employment and what alternatives the Respondent could offer him. The Complainant further stated that he reviewed the Respondent’s website and could see only employment opportunities in major cities such as Dublin Cork or Galway. He stated that the Respondent did not initiate any follow up meeting with him in relation to his employment or seek to engage with him in any meaningful way and in his view, this demonstrated that the Respondent had no intention “to discuss his options”. In relation to potential other positions, the Complainant stated that it “would be entirely unreasonable to expect any employee to be able to accept such positions due to distance”.

The Respondent’s HR Manager wrote to the Complainant on 8 February 2019 advising “that we currently have no roles open in the Mullingar area”. The HR Manager’s letter went on to state:

“Please see our website for all our current roles at http://www.derrycourt.ie/careers. If any of these vacancies are suitable, please contact me on….. I will alert you to any suitable vacancies that occur  in the Mullingar/Westmeath area immediately.

As mentioned in our previous correspondence, I have no alternative to but, in line with section 13 of your contract of employment, to lay you off until further notice, as we cannot maintain you in employment. If there are any queries in relation to this matter, have no hesitation in contacting me…..”

The Complainant received a further letter from the Respondent dated 8 May 2019 which again advised him that there were no roles open in the Mullingar area, which referred him to the Respondent’s website for vacancies and asked him “to confirm if any of these vacancies are suitable…” The letter also repeated the Respondent’s position that “If there is no suitable role available, we have no alternative to but, in line with section 13 of your contract of employment to lay you off until further notice, as we cannot maintain you in employment.” The Complainant stated that he did not receive any letter in March 2019.

The Complainant submits that he was subjected to an unfair and prejudicial disciplinary process, that the Respondent sided with the client and that from the outset he was advised that he would not be returning to the Mullingar site and was simply advised to check the Respondent’s website as if he was a new employee. According to the Complainant the Respondent did not arrange any meetings with him to discuss options after the disciplinary process was concluded or offer him any specific alternatives or possible transfers. He stated that he was “managed out” of his employment, that he “was left hanging in limbo” as the Respondent was “happy to leave [him] in a permanent state of layoff andconsidered themselves done with [him]”. In this regard, the Complainant submitted that the Respondent demonstrated “gross unreasonableness”, that the Respondent misapplied the lay-off provision in his contract of employmentand that from the date of his suspension, the Respondent no longer intended to be bound by its contractual obligations to him as an employee or “engage in any meaningful way to source alternative employment or even offer suggestions”. Following a further communication to the Respondent on 18 May 2019 the Complainant tendered his resignation on 20 May 2019. The Complainant’s email resignation stated:

“Due to the issues that arose while working for your company and the unfair procedures and treatment I am unable to continue working for Derrycourt.

Due to health issues which arose during the investigation I am here by submitting my resignation from 20th May 2019. Please forward outstanding paperwork and wages due”.

It is the position of the Complainant that he had no option but to resign, that he  fully exhausted the Respondent’s appeals process and that “Just because the client may have forced [the Respondent’s] hand in this matter…..this does not absolve them from their legal obligations to [Complainant] as their employee”. The Complainant maintained that the manner of his treatment by the Respondent entitled him to resign, that the prolonged lay-off showed the intent on the Respondent’s part to “fob him off” and that the Respondent should have engaged with the client’s agents and not just the shopping centre Manager.

The Complainant stated that his employment with the Respondent was “ideal” for him being only five minutes from his home. He stated that he has tried unsuccessfully to obtain new employment and has undertaken training courses but that notwithstanding, he remained unemployed and may ultimately have to move from Mullingar to find suitable employment as soon as circumstances permit. The Complainant stated that the loss of his employment has had “devastating personal and financial consequences” for him.

As a preliminary issue, the Respondent stated that the fact of dismissal was in dispute and that the Complainant had never been dismissed from his employment with the Respondent. The Respondent maintained that the Complainant - of his own volition - had voluntarily resigned from his employment on 20 May 2019 and that his resignation was accepted. Further, the Respondent stated that the Complainant had not pursued a grievance procedure prior to his resignation.

The Respondent stated that the Complainant had signed a statement of Terms and Conditions on 15 September 2017 and that he was based at the Respondent client’s premises in Fairgreen Shopping Centre Mullingar.

The Respondent outlined that on 17 May 2018 it received emails from the Manager of the shopping centre alleging that the Complainant had been aggressive and abusive towards him and that the Manager had also stated that the Complainant could no longer work at the shopping centre. The Respondent outlined that it placed the Complainant on paid suspension from 17 May 2018 and thereafter, instigated an investigation and disciplinary process. The Respondent also outlined that it corresponded with the shopping centre Manager in relation to its obligations as the employer of the Complainant and that its email to the Manager of 17 May 2018 advised that issues with staff members were a matter for the Respondent who should be contacted in the first instance.

The Respondent stated that the Complainant was represented by a work colleague at the investigation meeting held on 21 May 2018 and that during the meeting he made a number of admissions in relation to the Centre Manager’s complaint including that he had slammed a door, that he had approached a customer to ask why that person had complained about him, that he had approached staff from Costa Coffee to ask them to sweep their garden area and that he had failed to sign in and out each day. The Respondent stated that the Complainant had also made complaints about the Centre Manager and about his working environment and stated that he had been looking for a new job. The Complainant also stated that he was open to availing of mediation with the Centre Manager. The Respondent stated that during the investigation two other members of staff who were interviewed referred to text messages sent by the Complainant to a colleague wherein the language used was described “vulgar”.

The Investigation Report recommended follow up meetings with all of the Respondent’s staff at the shopping centre to investigate the Complainant’s allegation of a “toxic environment”.  In that regard, the Respondent stated that meetings were held with several staff and with the Centre Manager and that interviewees were advised that confidentiality applied. The Investigation Report made a number of conclusions including that there was insufficient evidence to substantiate the Complainant’s and Centre Manager’s complaints against each other, that the Complainant had admitted to approaching a customer and staff from Costa Coffee which was deemed “inappropriate”, that there was evidence of “inappropriate and alarming contact between the Complainant and his colleague” and that the matter should proceed to the disciplinary stage.

The Respondent stated that the Complainant went on sick leave from 26 July 2018 and that on 4 December 2018 he sought confirmation was to whether he could return to work or be placed on paid suspension. On 28 November 2018, the Respondent wrote to the Complainant and advised that irrespective of the outcome of the disciplinary process, at the client’s request, the Complainant would not be deployed to the Mullingar site at any stage in the future and that the Respondent had  no option but to re-deploy him and  “will inform [Complainant] of the alternative site as soon as we have finished the disciplinary process”. The Respondent stated that by letter of 16 January 2019, the Complainant was again invited to a disciplinary meeting and was advised of the serious nature of the issues involved which could result in disciplinary action up to and including dismissal. The Respondent stated that it also advised the Complainant of his right to representation. The disciplinary meeting took place on 18 January 2019 and the Complainant was unaccompanied, however, the Respondent stated that it agreed to provide another member of staff “as a witness and notetaker for him”. Thereafter, the Complainant was issued with a final written warning on the basis of behaving in a manner “not in keeping with” the Respondent’s values and as a result of “aggressive behaviour, inappropriate interactions with clients, breach of sign-in policy and breach of the respect and dignity policy”.  The final written warning was to remain on the Complainant’s file for 12 months.

The Respondent’s HR manager conducted the appeal following which the sanction was upheld – albeit that he overturned one allegation against the Complainant in relation to breaches of normal customer care regulations. At the adjudication hearing, the HR manager gave evidence in relation to the Complainant’s grounds of appeal, the appeal process and his decision-making. The HR Manager stated that he accepted that the Respondent had no record of the Complainant being issued with a copy of its policies and procedures/ie its Employee Manual though he had received certain online induction training and on 15 September 2017 he had signed confirmation of receipt of the Employee Handbook. In addition, the Respondent stated that many employment matters were covered in the Complainant’s Terms and Conditions of employment. Accordingly, the Respondent maintained that the Complainant was aware of its Grievance Procedure and its Harassment at work policy as these were outlined in his contract. The Respondent stated that the Complainant’s allegations of bullying only arose after the formal investigation begun, that they did not excuse his behaviour and that in any event he did not instigate a Grievance Procedure or any other internal policy in relation to his complaints in this regard.

The HR manager also outlined the various letters he had sent to the Complainant advising that there were no roles in the Mullingar area and that the Complainant was to check the Respondent’s website. He also stated that a letter dated 5 March 2019 was sent to the Complainant. In relation to the Respondent’s website the HR Manager stated that it was an active tool to recruit and/or place staff and that in 2019 the Respondent was finding it difficult to get staff. Accordingly, he stated that there was no attempt by the Respondent to “get rid of” the Complainant and that on the contrary, his letters to the Complainant represented an attempt to engage with him.

In response to questioning that it would have been reasonable to have met with the Complainant in relation to redeployment, the HR Manager stated that it was difficult to contact the Complainant.  The HR Manager also stated that the Respondent has no choice but to deploy the Complainant as it is providing a service to a third party.

The Respondent stated that there were several other cleaning operative roles available at this time but that the Complainant had said he could not accept these roles “because of the road distance”. The Respondent maintained that there had been a fundamental breakdown in the relationship between the Complainant and the client’s Manager and that it had no option other than to exercise its right – in accordance with the Complainant’s contract of employment - to remove him from the shopping centre “given their client’s direction that the Claimant no longer attend the site”. In this regard,the Respondent stated that “The Claimant refused to transfer to any of the many other cleaning operative positions that the Respondent had, meaning he was placed onlay off”.

The Respondent’s HR Generalist also gave evidence in relation to the Respondent’s communications – emails and letters – with the Complainant. The HR Generalist also clarified that there had been no attempt to set up a live communication or a meeting. 

It is the position of the Respondent, that it endeavoured to engage with the Complainant in relation to assigning him a new site, but that the Complainant did not explore or avail of any other internal opportunities available which would have constituted suitable alternative employment. Further, the Complainant did not utilise or exhaust the internal Grievance Procedures which amounts to unreasonableness on his part. The Respondent stated that the Complainant was not dismissed - constructively or otherwise and that he had failed to reach the high burden of proof associated with cases of constructive dismissal. The Respondent stated that it did not breach the Complainant’s contract of employment and that its interactions with the Complainant were at all times reasonable.

 CA-00032160-001 - Withdrawn

 CA-00032158-001

Section 1 of the Unfair Dismissals Act [1977-2017] defines dismissal as follows:

““dismissal”, in relation to an employee, means –

a) the termination by his employer of the employee’s contract of employment with the employer…..

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 I would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

The Complainant is claiming he was constructively dismissed and accordingly, I must consider whether or not on the balance of probabilities, there was a dismissal in accordance with the provisions of section (b) above. There are two tests to establish if a constructive dismissal occurred – the ‘contract test’ – i.e. that there was a breach of the contract of employment, such that an employee is entitled to terminate his/her employment and the ‘reasonableness test’ – i.e. that the behaviour of the employer was so unreasonable that the employee was entitled to terminate his/her employment. The reasonableness test asks whether the employer conducted its affairs in relation to the employee so unreasonably that a complainant could not fairly be expected to put up with it any longer. These tests were enunciated in Western Excavating (ECC) v Sharp [1978] ICR 221 and have been relied on by the Labour Court. For example in NCBI v Ms Mary Cawley [UDD2138] the Court explored whether there was “any fundamental breach going to the root of her contract” such that it was reasonable for the Complainant to terminate her contract and/or whether the employer conducted its affairs “in relation to the employee so unreasonably that the employee cannot be expected to put up with it any longer, [and] if so…is justified in leaving”.  By the same token, a complainant is under the burden of establishing that he/she has conducted him/herself reasonably in terms of affording the employer the opportunity to address the issues which ultimately led to the termination of his/her employment. In that regard, in referring to the need to utilise established internal grievance procedures, the Employment Appeals Tribunal held as follows in Beatty v Bayside Supermarkets [UD142/1987]:

“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases…”

From the submissions and sworn evidence I consider that the sequence of events which led to the issuing a formal warning to the Complainant are not in dispute – in that there was an incident between the Complainant and the Respondent’s client Manager and 17 May 2018 which gave rise to the instigation of an investigation and disciplinary process by the Respondent. The Complainant strongly disputes the allegations made against him by the client’s Manager and has also taken issue with the manner of the Respondent’s investigation and disciplinary process particularly on the basis that it was unfair and prejudicial. The key purpose of a disciplinary procedure is to afford an employer the opportunity to set out any concerns it may have about the poor performance or conduct of an employee and at the same time, afford the employee an opportunity to answer the allegations and make representations as to why he/she should not be disciplined/sanctioned. This rationale coupled with the principles of fair procedures are set out in Statutory Instrument (SI) 146/2000 which is the Code of Practice applicable to workplace disciplinary matters.   I have summarised the requirements of SI 146/2000 as follows:

·        To comply with the general principles of natural justice and fair procedures;

·        That the details of complaints are put to the employee, that he/she has the right to respond and challenge evidence, the right to representation and the right to a fair and impartial determination of the issues concerned;

·        That the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available; and

·         That generally, the stages in a disciplinary procedure will be progressive, for example, oral warning, written warning, final written warning, dismissal.

Further to these principles, it is well established in case law that in relation to disciplinary matters,  it is not the function of an Adjudication Officer to re-investigate disciplinary complaints or to substitute his/her view for that of a Respondent. Rather the focus is whether the decisions arrived at are rational, reasonable and based on the information available to the investigators. In this instance, having considered the various accounts of what occurred on 17 May 2018, the correspondence associated with the investigation and disciplinary procedure and the minutes of the various meetings including the Complainant’s own accounts as to what occurred, together with the submissions and sworn testimony at the adjudication hearing, I am of the view that it was not unreasonable of the Respondent to instigate an investigation and disciplinary process. I am also satisfied from my consideration of the conduct of the investigation and disciplinary process that the Complainant was afforded fair procedures. Whilst the scope of the investigation was wider than the original complaint of the client’s Manager, the Complainant was put on notice of the issues being considered, he was afforded representation, a right of hearing and an appeal.

In its letter to the Complainant of 22 January 2019 the Complainant was advised of the outcome of the disciplinary hearing and that he was being issued with a final written warning which was to remain on his file for a period of twelve months. However, prior to the disciplinary hearing, the Respondent advised the Complainant by  letter of 28 November 2018 that “Irrespective of the outcome of the disciplinary process….”  he would no longer be deployed to the Mullingar site “at any stage in the future” and that the Respondent’s right to transfer him to another location was specifically provided for in his contract of employment. That letter also stated that the Respondent would inform the Complainant of the “alternative site” as soon as the disciplinary process was finished. This approach to matters continued after the disciplinary and appeal process was concluded as demonstrated by the Respondent’s letters of 30 January 2019, 8 February 2019, 5 March 2019 (which the Complainant stated he did not receive) and 8 May 2019. In the course of these letters the Complainant was advised – inter alia - that the Respondent was not able to facilitate a return to the Mullingar site,  that the Respondent “will be looking to re-deployment to the next available role suitable to [Complainant’s] position as a cleaning operative”, that a member of the HR team was to contact the Complainant “to update [him] on suitable roles within Derrycourt”, that there were no positions in the Mullingar area,  that the Complainant was to check the Respondent’s website for available vacancies and that if no suitable role was available he would be laid off until further notice. The Respondent provided evidence of other cleaning operative positions available but the Complainant stated that he could not take up these positions because of the distance and expense involved.

The Complainant’s Terms and Conditions of employment which he signed on 15 September 2017 provided that the Respondent reserved “the right to transfer [him] to other location/contracts as necessary……”.  In terms of lay-off, I note that paragraph 13 of the Complainant’s Terms and Conditions stated:

“Layoff and/or short time:

The company reserves the right to lay you off from work or reduce your working hours where, through circumstances beyond its control, it is unable to maintain you in full employment. You will not be paid during the layoff period……”

The Redundancy Payments Act [1967-2021] provides as follows in relation to lay-off:

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”.

In light of the foregoing and having considered all the evidence and submissions, I find that the Complainant had no option but to resign his position. In this regard, I am of the opinion that the die was cast prior to the disciplinary hearing when the Complainant was informed that irrespective of its outcome he would not be returning to the Mullingar site. Whilst the Respondent advised the client by email of 17 May 2018 of its obligations as the Complainant’s employer, in effect, the client’s objections to the Complainant remaining on the Mullingar site held sway. That being said, the critical issue of concern to me for the purpose of this complaint to the WRC, is what followed after the disciplinary process was concluded. Notwithstanding that the Complainant was purportedly not dismissed by the Respondent, he was in fact left without employment and indeed the Respondent’s letters to him at that time used the phrase that “we cannot maintain you in employment”.

In my view the Complainant received contradictory messages from the Respondent with regard to his continued employment. Initially he was advised that the Respondent would re-deploy him and that HR would contact him regarding suitable roles whilst subsequently, responsibility for maintaining his employment was left solely in the Complainant’s own hands and he was continuously advised to check the Respondent’s website for vacancies. In this regard, I consider that the Respondent failed to actively engage with the Complainant and transfer/redeploy him to another site. This in my opinion, was inconsistent with the Complainant’s Terms and Conditions of employment and with the intention of a period of lay-off. Whilst the Complainant did not initiate the Respondent’s Grievance Procedure in relation to these matters, he contacted the Respondent on a number of occasions after the conclusion of the appeals process in order to enquire about his employment and pursue a return to work. Accordingly, I am satisfied that the Respondent was on notice of the Complainant’s concerns with regard to the continuation of his employment. The Complainant also confirmed that he was available to return to work from sick leave. In all the circumstances, I consider that the Respondent conducted its affairs in relation to the Complainant entirely unreasonably and in breach of his Terms and Conditions of employment.

In light of the foregoing I make the below decision.

CA-00032160-001 - Withdrawn

CA-00032158-001

For the reasons outlined, this complaint is well founded. Section 7 of the Unfair Dismissals Act [1977-2017] provides as follows:

“7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement…….., or

(b) re-engagement…….,  or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration….., or

(c) (ii)  if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances…..”

In terms of redress the Complainant is seeking compensation. In that regard, the Complainant has stated that his gross weekly pay was €302.81/week.  However, the Complainant is under a duty to mitigate his loss which may involve flexibility as to work location. Accordingly, I decide that the Respondent should pay compensation to the Complainant of an amount equivalent to approximately four months gross pay – ie the sum of €5000.00 – which I consider just and equitable in all the circumstances. This is subject to such statutory deductions as may apply.

Constructive Dismissal; Lay-off