Complainant

Respondent

Parties

Edward  Monaghan

A. McGuinness & Sons Limited

Representatives

  In person

 Deirdre McHugh BL

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-00048141-001

13/01/2022

The Complainant worked as a window and door fitter. His employment started on 19.10.20 and he alleges that he was dismissed on 23.12.21. The Respondent denies that the Complainant was dismissed. A preliminary issue was raised by the Respondent; that the Complainant was required to prove that the dismissal occurred as a matter of fact.

At the remote Adjudication hearing on 14 September 2022 the Complainant attended with his partner Tara Gallagher. The Respondent was represented by Deirdre McHugh and the Respondent witnesses were Aidan McGuinness, Jenny McGuinness and Shane McGuinness.

The witnesses all gave evidence under oath and the parties were given an opportunity to cross examine the witnesses

The Complainant gave evidence and was cross examined under oath as follows:

He started work as a window and door fitter with the Respondent on 19 October 2020. His father has worked for the company for eighteen years before that, as a senior window and door fitter.

The Complainant denies, as is suggested in submissions filed by the Respondent, that he took time off whenever it suited him without permission. He denies that the days that he didn’t work in October 2021 were unauthorised leave days. The Complainant took parental leave for a week and provided evidence of this in the form of a letter from the Department of Social Protection. Additionally, he took unpaid leave October 2021 which was sanctioned by the Respondent to allow him to finish the construction of his house as he and his partner had a new baby. He also denied as is also asserted in the Respondent submissions, that he had a practice of arriving to work an hour late.

He states that in August 2021 there had been an issue that the Respondent had not paid any of the staff their bank holiday entitlement, which was subsequently resolved. Apart from that issue, his working relationship was fine.

He states that when he stated work, Aidan McGuinness had told him that his holiday entitlements were four weeks, two weeks at Christmas and two weeks in the summer.

He had already taken holidays during the summer, so he expected a payment of two weeks in his Christmas 2021 pay packet, but instead he only received one week holiday pay. Work finished on 23 December, but he only realised the shortfall when he got home and then it was too late to ring his boss. He rang Aidan McGuinness instead the following day around noon. When he told Mr. Aidan McGuinness on the phone that his pay packet was short, Mr. McGuinness said “you’re always giving me trouble about money, its Christmas Eve, why don’t you f**k off.” The Complainant was extremely taken aback and just said “That’s fine Aidan” and the conversation ended.

From this exchange the Complainant believed that his job was over and given the time of year and that he and his partner had recently had a new baby, this came as a severe blow.

He had been due to go back to work on 3 January 2022 but assumed that he had been dismissed by the telephone conversation on 24th December. However, on 4 January 2022 he got a phone call from Aidan McGuiness. Mr. McGuinness told him that the Complainant’s father Mr. Monaghan (senior) had handed in his notice that morning.  He asked the Complainant to ask his father to come back to work, because he was needed. He told the Complainant that he would ring him, the following day to discuss his job. However, the following day, the Complainant did not receive any phone call from Mr. McGuinness nor any other member of the Respondent business and no one from the Company has contacted him since then.

The Complainant believed that he was dismissed on the 24 December 2021 however following the conversation on 4 January 2022 as no contact was made on 5 January, despite Aidan McGuinness saying on 4 January that he would ring him to discuss his job the following day, the Complainant believed that the dismissal decision was confirmed.

The Complainant immediately looked for an alternative job. He got another job at the start of February 2022 with a better salary.

His loss of income which arises as a result of the dismissal was €1750 net.

The Respondent denies that the Complainant was dismissed.

Mr. Aidan McGuiness gave evidence under oath. He stated that the Complainant rang him on Christmas Eve 2021 when Mr. McGuinness was with his wife, children and grandchildren. He accepts that he was not happy being contacted on Christmas Eve, but he denies using any foul language to the Complainant, as is claimed.  The conversation was overheard by all who were there, so while he would not use those words anyway, he certainly did not use them then. He accepts that the Complainant was asking something about pay but he told him was that it could be all sorted out after Christmas when they all got back to work. Nothing in the conversation could have been construed as being a dismissal.

When Christmas had passed, the Complainant was due to return to work on 3 January 2022, but he did not show up. On 4 January Mr. Aidan McGuinness rang the Complainant to see where he was and the Complainant told him that he couldn’t go to work that day but that he would return the next day, but the next day he did not show up. No attempt to contact the Complainant, because if he didn’t want to work they couldn’t force him. They just assumed that he had left his employment without telling them. They still have him recorded as an employee on the company payroll.

The Complainant was not dismissed, either by the conversation had with Mr. Aidan McGuinness on 24 December 2021 or by their conversation on 4 January 2022.

When asked about the Complainant’s work Mr. Aidan McGuinness said the Complainant’s work was as good as everyone else. He did say however that the Complainant had a practice of not showing up to work and of showing up late, however he accepts that he was never reprimanded by the Company for this, nor given a disciplinary warning.

Mr. Aidan McGuinness has no recall of signing a parental leave form for the Complainant in October 2021. As far as he was concerned all the leave days that were taken by the Complainant in October 2021 were unauthorised, and the Complainant was not paid.

Ms. Jenny McGuinness, the wife of Aidan McGuinness gave evidence under oath. She was present for the telephone conversation on 24 December 2021. She said that while her husband was not happy to be contacted on Christmas Eve, he did not lose his temper or use foul language.

Mr. Shane McGuinness, the son of Aidan McGuinness and manager with the Respondent gave evidence under oath. He stated that he was present in the office for the telephone conversation on 4 January 2022. He heard his father asking the Complainant why he had not showed up to work. He understood - from what his father told him, after the call - that the Complainant said he would come back to work the following day. Shane McGuinness said that there was no mention of the Complainant’s father during this call however he understood that Mr. Edward Monaghan had handed in his notice that morning and that his father made direct contact with Mr. Monaghan (Senior) later that day. He accepted that Mr. Monaghan was needed because he was a senior worker on site. However, Shane McGuinness understood from a conversation a month earlier that Mr. Monaghan had been finding the work too much and intended to stop work in due course and Shane McGuinness believed that this was the reason why he had handed in his notice. Mr. Monaghan Senior, still works for the company in a consultancy role. As far as Shane McGuinness is concerned the telephone call between Mr. Aidan McGuinness and the Complainant on 4 January was not about the Complainant’s father and was not about resolving any issue with the Complainant. It was about ensuring that the Complainant showed up for work the next day, but he didn’t. He accepts that no one contacted the Complainant after this date.

The evidence given in this case was all given under oath, however the accounts given on behalf of each party directly contradict one another.

I find that the evidence of the Complainant to be more credible than that of the Respondent witnesses.

The reasons for this are as follows:

There is a dispute between the parties as to what happened in October 2021. I am not persuaded by the Respondent’s explanation that the Complainant took off in October 2021 for multiple unauthorised leave days. I have been provided with a letter from the Department of Social Protection confirming that parental leave was paid to the Complainant for this time. This payment could not have been made without the agreement and cooperation of his employer. I find that the denial by Aidan McGuinness that he signed the parental leave application form and his evidence that this leave was simply a no-show unauthorised leave, to be not credible.

The Complainant’s evidence that the other days of unpaid leave October 2021 were that days had been sanctioned by Shane McGuinness to allow him to finish the construction of his house as he and his partner had a new baby, was not disputed by Shane McGuinness.  I do not consider it to be credible that the Complainant simply “took off” in October 2021 with no explanation. Or that when he returned to work, no one reprimanded him for taking unauthorised leave, he faced no disciplinary measures and no one seemed to even discuss this with him. I prefer the evidence of the Complainant, that he took parental leave with the consent of his employer for a week in in October 2021 and he took an additional number of unpaid leave days also in October with their consent to allow him finish off the construction of his house.

Was there a dismissal?

The test to be met where the fact of a dismissal is denied is whether it was reasonable for the Complainant to consider that he was dismissed. Where an employer has used unclear words or ambiguous terminology an objective test is applied to the words used and conduct, must also be taken into account. The question to be answered is   - was the interchange between the Complainant and Mr. Aidan McGuinness on both 24 December 2021 and 4 January 2021 sufficient to allow the Complainant to reasonably believe that he had been dismissed on 24 December 2021?

In my opinion if the assertion that he had been dismissed was confined to the conversation that they had on 24 December 2021, this alone was not enough to allow him to reasonably believe that he was dismissed. Even if the words of “F*** off” were used, this could relate to the moment rather than the employment relationship and when people are annoyed, such words can be spoken.

However when combined with what happened after Christmas, ie on 4 January 2022, I consider that it was reasonable for the Complainant to believe that the “F*** off” comment did in fact mean what the Complainant believed, namely that because Aidan McGuinness considered him to be a complainer about pay and that he had no right to contact him on Christmas Eve, that he no longer wished for him to be employed.

The telephone conversation took place on Christmas Eve, the Complainant’s partner had just had a baby, so whether the Complainant was correct or not about his entitlement to another week of holiday pay, he believed that his pay packet was short. Christmas can be a pressing financial time for families. So while Aidan McGuinness may have been irritated by his family time being disturbed on Christmas Eve, if an employee believes that the money he thought his family would have over Christmas period is short by one week of wages that also is a reason why person might be upset. The conversation that they had on 24 December was not open or amicable and there is no good excuse for this. There is nothing wrong with an employee asking his employer if he thinks his wages are short, particularly at Christmas when funds are needed.

And even if the 24 December telephone conversation was as Aidan McGuinness asserts, when he spoke to him on 4 January, why did he not refer to their conversation on 24 December? If Aidan McGuinness indeed had told the Complainant that his pay issue would be sorted out when they got back to work, why did he not refer to that when they spoke on 4 January? He knew that there was a pay dispute in being and he knew that the Complainant did not come into work on 3 January. According to Mr Aidan McGuinness and Mr. Shane McGuinness the conversation was only about whether the Complainant would be coming into work the next day.

It is my view that the Complainant’s evidence is the more credible version, that the conversation on 4 January reflected the priority of the Respondent - which was to get the Complainant’s father back to work - and when Mr. McGuinness made contact with Mr. Monaghan (Senior) later that day, there was no any need for Aidan McGuinness to contact the Complainant as he said he would, because he did not want him back on the job.

For reasons stated above I find the evidence of the Complainant to be more credible than the Respondent witnesses and I think it was reasonable for him to believe that as a result of the conversation on 24 December 2021 and the subsequent conversation on 4 January 2022 and the failure by the Respondent to ring him on 5 January 2022 as promised, that it was reasonable for him to believe (on 5 January 2021) that he had been dismissed on 24 December 2021, as he had previously thought.  I find this complaint to be well founded.

I find this complaint is well founded and I find that the Complainant was unfairly dismissed.

I award the Complaint €1750.00

Unfair Dismissal – fact of dismissal in dispute – conflict of evidence