Complainant

Respondent

Parties

Paul  Kirwan

Packo Fullwood Farm Services (Pffs) (In Liquidation)

Representatives

No Appearance on or behalf of the Complainant

Deirdre Keane, BL instructed by  William Fry Solrs

Act

Complaint Reference No.

Date of Receipt

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

CA-00035875-001

27/04/2020

On 27 April 2020, the Complainant, a Regional Sales Manager forwarded a complaint of Constructive Dismissal to the WRC. At that time, he requested that all meetings should be held in Gorey to accommodate his named representative. On 26 May 2020, the Complainant was requested to provide contact details for the then Respondent.

The Respondent came in record as the Human Resource Manager for UK and Ireland. O Connors Solicitors came on record in October 2020.

The Complainant forwarded an outline submission on the chronology of the case dated 8 October 2020.

On 28 October 2020, the Respondent Solicitors filed an outline defense in the claim.

A number of postponements followed before the case came for a first hearing in Cork on May 16, 2022.

I had sought preparatory submissions from the complainant on contract, pay slip, any documents on loss and mitigation. I received a prepared narrative, both no documents of employment which may have bound the parties.

On May 16, 200, the Complainant attended in the company of a friend, there was no appearance on or behalf of the Respondent. Later, it became apparent that the Respondent had not been properly on notice due to an omission of one detail on the email address. I explained this to the Complainant and confirmed that I would seek an early resumption. Later that day, I wrote the following and copied to both parties.

This case was set for hearing this morning at 11.30 am. When I discovered that the Respondent had not made an appearance, I asked our PRU to check whether any contact had been made from your office.

I deferred the meeting start time to allow for some clarification.

I learned that the letter of notification of March 11, 2020, had inadvertently left without inclusion of o in the email address.  I explained this to the Complainant who was present in the building.

I was not satisfied that both parties were properly on notice of the hearing and promptly adjourned. I have requested an early resumed hearing date.

I apologise for that oversight.

I will copy this for the attention of the Complainant also.

I look forward to meeting the parties at the resumed hearing date.

On 10 November 2022, both parties were invited to attend a joint hearing in the case on 20 January 2023 at 10 am.

On 14 December 2022, the WRC was notified by William Fry Solicitors that they were acting as the High Court appointed Liquidators (order dated 29 August 2022) of the business and sought a postponement in the case. This application was refused.

On January 4, 2023, the Complainant sought a postponement of hearing.

The WRC Administrative section informed the Complainant of the procedural requirements necessary to accompany such a request.

The Complainant did not forward documentation as requested and instead on January 18, 2023, two days in advance of hearing, he forwarded the following narrative to WRC.

I am currently overseas on business trip and will not be available for this meeting. Can we reschedule with a bit more notice please.

This application for postponement was refused.

To be fair to both parties, I discussed the potential for offering a Remote Hearing to both Parties to address this impasse. I am grateful to WRC Administrative section as they prioritized that request and made a formal offer of remote hearing to both parties forthwith.

Neither party responded to the offer and the hearing took place as planned on the notification of hearing letter. Only the Respondent attended in the form of Deirdre Keane BL instructed by William Fry Solicitors.

I explained at hearing that I would allow 5 days to allow for any late notification of extraordinary circumstances for failure to appear in the case. However, as I write this 6 working days post hearing, the Complainant or his named representative have not been in contact with the WRC.

I will now record a formal “no show “from the complainant and his representative.

I will now move to a summary and findings in the case.

The Complainant has claimed constructive Dismissal from his full-time role as Regional Sales Manager 16 July 2018 to 24 January 2020.

His complaint form reflected that he found new work on 17 February 2020, which was not broken down by comparative analysis on salary or tenure.

The Complainant submitted a narrative of a worsening employment experience, followed by Company scrutiny of his performance which led to “I reluctantly submitted my resignation “in December 2020. Hi stated that the nature of the new work was “temporary “

The Complainant submitted two outline submissions on the chain of events surrounding his experience at the employment.

On 28 October 2020, the Respondent Solicitor, Mr Pat F O Connor responded to the claim in narrative form.

He outlined that the Company denied dismissal and stated that the complainant chose to leave of his own accord. There were issues surrounding work performance and expenses.

The Company investigated the Complainants allegation of bullying against a senior manager at the business, which was not upheld. The Complainant had left the business prior to the completion of this.

The Respondent stated that they wished to fully contest the claim.

On the morning of January 20, 2023, the Respondent detailed the Liquidation process. Ms Keane pointed the hearing to the burden of proof in this case resting on the Complainant, who had not attended to give evidence. He had failed to demonstrate financial loss.

She submitted that the case should be struck out as a result.

In seeking to clarify the correct legal title, I was informed by the Respondent Representatives that the correct legal title carried an ad of “ltd “to Packo Fullwood Farm Services Ltd, I was unable to address a discussion with both parties to rectify this on consent. I mention it here for background purposes.

I have been requested to come to a decision in the claim for constructive dismissal. In reaching my findings and decision, I have had regard for both narratives submitted by the parties.

I have had regard for the Respondents changed trading circumstances following notification of a High Court Liquidation from August 2022.

I have also had regard to both parties’ pursuance of applications to postpone the hearing and the WRC declarations of refusal on both counts in January 2023.

I am satisfied that both parties were properly notified of the forthcoming hearing on November 10, 2022. I am satisfied that both parties were provided with an oral hearing in January, 2023.

Neither party moved to seek a postponement until late December 2022and early January 2023. Both applications were refused, and the WRC confirmed on both occasions that the hearing was going ahead as planned. I found it unreasonable that this declaration was ignored.

I have some sympathy with the Complainant here as he had made an early appearance in the case. It was not clear at that point in May 2022, that the Respondent company would be overtaken by a Liquidation. This is truly regrettable.

As this came back for hearing as a resumed hearing. the case was given a full day for hearing to enable completion of this long running case affected by service activity during the national pandemic.

I must find that a nonappearance by the Complainant in such a long running case and/or a failure to engage with the WRC on a pro-offered Remote hearing on 18 January 2023 was unreasonable.

Section 1 of the Unfair Dismissals Act, 1977 outlines the tenets of a Constructive Dismissal in section 1(b)

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

(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

I accept the Respondent submission that the burden of proof rests with the complainant in this case I would have liked to have heard this story presented in evidence and cross examination, followed by clarifications.

 However, in the absence of the Complainant and the declaration of a “no show “on his behalf, I am left with no option but to find that the Complainant has not opened his case through evidence in accordance with WRC procedures. He cannot satisfy the burden of proof required in the case as a result.

I must find that his claim is not well founded, and he was not unfairly dismissed.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I find that the Complainant was unreasonable when he failed to make an appearance at hearing or respond to the WRC on the late offer of a remote hearing.

I must find that the claim for Constructive Dismissal is not well founded, and he was not unfairly dismissed.

Claim for Constructive Dismissal, Non-Appearance of Complainant at rescheduled joint hearing January 2023