Complainant

Respondent

Parties

Kevin  Waite

Midland Tyre Services Ltd

Representatives

  Self-Represented

Mairead Crosby of 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-00048406-001

31/01/2022

The issue in contention concerned the alleged Unfair Dismissal of the Complainant by a Tyre Services Company.

The employment began on the 31st May 2004 (or 2002 as maintained by the Complainant) and ended on the 29th December 2021.

The rate of pay was €708 Gross for an average 44-hour week.

The Complainant gave an Oral testimony and submitted a written submission.

He stated that he had worked without incident for over twenty years and had never been the subject of any disciplinary proceedings.  The Company had changed hands in 2018/2019.

The new owners put a bonus Structure in place that promised an annual bonus of €3,500 plus a Year Three Bonus of € 20,000 for long serving staff and a Year Four Bonus of €10,000.

He would have been eligible for the Year Three Bonus in 2022. This was a major factor in the Respondent’s mind in considering the incidents of December 2021.

In late December 2021 Covid 19 was ongoing. On the 19th December 2021 the Company H&S Officer, Ms G, issued an instruction to the effect that all staff must take a daily Antigen Test before coming to work.   The results to be photo texted to her each morning.

The Complainant found this to be an extreme requirement and well, outside of all normal HSE/HSA Covid Rules or Regulations.  He quoted at length from the HSA Antigen guidelines. An employer simply could not impose the Antigen test as a precondition for attending work.

The Complainant rang the Respondent Manager Mr. P on the 19th to discuss the issue. He insisted that he would not be coming to work on the Antigen test basis. The Complainant sent a text message to this this effect on the 19th December.

“OK that’s me and Lee finished as of now”

This was a “Heat of the moment” text and was never intended as a resignation after some 20 years’ service. The letter of the 28th December 2021 allegedly sent by the Employer was a very “after the fact” piece of correspondence. It was not sent to his well-known home address – (the company were able to call to collect his van from his home without any difficulty) but to an old address -his parents’ house. His parents absolutely denied ever receiving any letters.

The letter was incorrect -he had never stated that it was not his intention to return to work. He had simply stated that he would not work under the Antigen regime being proposed. His work location, in the “Car Bay” was a standalone position and he had little contact with other staff or indeed customers who came in the get new tyres. His text of the 19th December was not a resignation from a job of some 20 years. The Parties shared further e mail correspondence on the 16th January 2022 where the Complainant again reiterated his position. He had not resigned.

He further alleged that the Employer had acted completely hastily and had not attempted to use any Employment procedures, meetings or investigations/disciplinary procedures.

In closing summary, he maintained that he was well within his rights (HSA & HSE Protocols etc) regarding the Antigen testing requirements but that the real issue was the desire of the Employer to be rid of him before the € 20,000 bonus in 2022 fell due. The Antigen testing and his objections gave a very convenient ruse to the Employer.

In his Oral evidence he agreed that his wife was a HSE employee and that he had had to self-isolate in December following a Covid outbreak at his home. However, he was never aware of this situation at home when he was going out to work.

The Complainant was fully cross examined by the Respondent Representative Ms Crosby of IBEC. He came across as a good witness.

 The Respondent gave a written submission plus supporting Oral testimony from Mr M of the Company. Chief Spokesperson was Ms Crosby of IBEC. The company was a major commercial vehicle, trucks, buses etc supplier of tyre replacement services. They had a small car /small vehicle bay at their headquarters. This was where the Complainant worked.

The start date of the Complainant was stated to be 2004 as opposed to the 2002 given by the employee. He had worked without incident until December 2021 when he had refused to come to work while the Antigen testing rules were in place. It was noted that he had earlier refused to wear face masks at his workstation – the car bay. He had been quite publicly cynical as regards Covid prevention measures generally.

On the 19th December 2021 he had texted the Employer stating that “he was finished as of now”.

This was a clear resignation. He had not made himself available for the “On call” schedules over the Christmas period and had not come in to work in January 2022. His text was clearly a considered message and not “heat of the moment”. He could easily have come back to work on the 3rd January and sorted things out with Mr P. Mr P had always held him in high regard both personally and as a very good employee.

As an essential service the Company had kept going during Covid but with major Covid defence procedures for the sake of staff and customers. It could not be any other way. The daily Antigen procedure was an essential safeguard to keep the business going. Staff were wearing masks and working from home where possible. However, they were a mobile large truck /vehicle tyre fitting service and home working was not an option for mobile crews. The Antigen routine was essential as a Covid outbreak on site would have been catastrophic for the business.

A letter had issued to the Complainant on the 28th December 2021. It had gone to the addresses that was on the Personnel file. The conversation with Mr P on the 16th December had been clear cut. There could not be any misunderstanding.

The conversations/e mails with Mr M of the Company in the period 16th to the 20th January were equally clear. He had stated that

“As far as I’m concerned, I’ve been waiting at home until I’m told I no longer need to take a daily antigen test”

This was clearly “unreasonable employee behaviour” and contrary to any normal Company policy irrespective of Industry or Sector during a Covid epidemic.

As regards to bonus payments he had received a significant advance in 2019 - € 11,200. Avoiding outstanding payments were not an issue for the Employer.

The Complainant had been unwilling to come to work under the Covid/Antigen rules that other staff were happy to abide by. He had resigned by text on the 19th December. It was a clear resignation and no case for Unfair Dismissal could follow.

Mr M gave an oral testimony to reiterate the above points. He made it clear under Oath that the Bonus situation was not a determining factor in any employer actions. He was a competent managerial witness.

Cross examination from the Complainant took place.

3:1     The Law. – Natural Justice

In an Unfair Dismissal situation, the guiding principle has to be that of Natural Justice.

In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

More recently SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures has codified this Natural Justice principle into a set of guidelines.

3:2 The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for Employer and effectively engage in a de facto rerunning of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295 :

        “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated uponat length.

Accordingly in the case in hand the key question is whether or not natural justice was followed in all procedural matters and the ultimate decision to dismiss was in the “band of Reasonableness”.

However, Natural Justice and Legal precedents notwithstanding, all cases rest on their own evidence presented in Oral Testimony and supported by written submissions.

These must be examined next.

3:2        Examination of evidence, both Oral testimony and Written Submissions

Oral testimony in this case devoted considerable time towards consideration of the Text Message sent from the Complainant to the Respondent on the 19th December 2021.

“Ok that’s me and Lee finished as of now”.

The Respondent took this, in conjunction with the phone conversation with Manager Mr P, on the same day, as a resignation from the job. The Respondent confirmed this understanding in a letter dated the 28th December 2021 to the Complainant.

The actual issuing of this letter, to an old address, was vigorously contested by the Complainant. The address was his parents’ house. They did not give any direct testimony but in a hearsay version, given under Oath, by the Complainant, denied ever receiving the letter. The Complainant gave evidence that the Employer knew his proper, current, address as they were able to collect his Company van from there shortly afterwards.

The Complainant strongly stated in his Oral Testimony that after almost twenty years of unblemished employment a very brief text could not be seen by any reasonable observer as a final resignation.

The Respondent pointed out that the conversation with Mr P had made it clear that there was no way the Complainant was coming to work while the Antigen testing rules were in place. In hearsay evidence from Mr M, it was stated that Mr P had told the Complainant to “Take the **** test and stop being silly”

The Respondent pointed out that the Complainant had not made himself available for Holiday emergency work and had not come back on the 3rd January the normal work resumption date. In fact, nothing was heard from him until the night of the 16th January. In e mails he confirmed that

“he was waiting at home until I‘m told I no longer need to take a daily antigen test”.

Mr M for the Respondent replied on the 20th January referencing the letter of the 28th December 2021 and confirming the ending of the employment.

3:3       Discussion

The case presents two conflicting sets of questions

Firstly, for the Complainant, the text of the 19th December 2021 -the alleged “resignation”.

Was the text of the 19th December a proper, legally enforceable, resignation after 20 years employment service or was it a spur of the moment “Hot blood” text? As an alleged “resignation” was it confirmed by the factual absence of the Complainant (“I’m waiting at home”) over the emergency rosters and the normal resumption of work in January.?

Did the Employer /Respondent act too hastily in accepting the “resignation” on the 28th December 2021.? Was the e mail exchange of the 16/20 January a formal “withdrawal” of any alleged resignation.

Secondly for the Respondent, the pattern of employee behaviour – the refusal to take the daily Antigen tests – the reasonableness of the Antigen testing regime – the consideration of the “Band of Reasonableness” of the Employer behaviour

A third issue is the Legal requirements for proper Employment Procedures -specifically SI 146 of 2000 – Industrial Relations Act ,2000, Code of Practice on Grievance and Disciplinary Procedures. This would have involved proper interviews with the employee and full investigations as to his position. In this case where there was the major possibility of a doubt regarding a “Resignation” follow up interviews would have been considered a very good employer practice. This was doubly the case when the issues of the 16/20 January communications arose.

Redmond on Dismissal Law ,3rd Edition,2017 at Page 496 Para 22.25 is also useful.

“If therefore, an employee tries to withdraw a notice of resignation, an employer should ask itself whether special circumstances exist. If so, they may cast doubt on whether the resignation was really intended. The employer should investigate the facts, to see whether to a reasonable employer an intention to resign is the correct interpretation of the facts.”

In considering these questions the facts must speak for themselves.

On the 19th December the Employer, out of fears of Covid and the need to protect their business introduced a daily Covid /Antigen test requirement. In terms of HSE/H&S requirement this was, from an observer point of view, probably tending towards an “Abundance of Caution”. The Complainant in his written submission quoted extensively from Government publications in this area.

However, the Respondent had been allowed to operate as an “Essential Service” and had a large staff in daily interactions with many customers.

The actions of the Employer could not be seen to be completely “Unreasonable” in the midst of the Pandemic.

However the Respondent letter of the 28th December 2021, in the light of the quote from Redmond above and the procedural requirement of SI I46 of 2000, referred to above , regarding the need for proper considered investigations , interviews with the concerned employees  etc has to be considered carefully.

Point 3 of Mr Justice Flood, quoted above is relevant

3.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

It was clear that the letter of the 28th December was written without any direct contacts with the Complainant. There were no Investigatory meetings or queries as to his actual position.

 It would have to be seen as written far too hastily.  A Legal Precedent, much observed, is that the Complainant should have been warned that he was putting himself at imminent risk of dismissal. This did not appear to have happened.

A serious Breach of Employment procedures is the only conclusion available.

This has to be counter balanced by the very trenchant negative views of the Complainant regarding the earlier wearing of face masks and the decision to physically absent himself from work rather than take a daily Antigen test.  He gave the impression that he felt he could stay at home for the duration on the Antigen policy. To an outside observer such as the Adjudicator this was clearly “unreasonable employee behaviour”.

The conversation with Mr P on the 19th December was critical here although related in sworn hearsay evidence from Mr M. The Complainant Oral testimony could be summarised as a view that he, the Complainant, was not resigning but was “absenting” himself. The UD Act,1977 refers at

Section 7 (2) (f) to the

“extent to which the conduct of the employee contributed to the dismissal”

Nonetheless it has also to be observed, in the Complainant’s favour, that the HSE/H&SA documents quoted , did not specifically support the view that an Antigen testing regime was a legal requirement. However, sitting at home without any contact with the employer until the 16th January 2022 was not a reasonable course of action for an employee.

The allegations regarding the Bonus Scheme had to be considered in the light of Oral Sworn Evidence. Both sides were of directly contrary views. In the absence of any extra documentary evidence or other witnesses the Adjudication can make no realistic finding in either direction. Sworn evidence is Sworn evidence and the Adjudication cannot delve into speculation. However, the Complainant did not avail of his cross examination to query the Respondent statements regarding an advance payment in the Summer of 2021.

3:4       Adjudication Conclusion

Having reviewed all the written materials and especially the Oral Testimony, the Adjudication view is that the ending of the employment, from an Adjudication point of view, was not a resignation but was an Unfair Dismissal. The key reason for this view is that no proper employment procedures (investigation, interviews etc) were followed and the letter of the 28th December was premature and written with too much haste.

This is counter balanced by the strong view that the behaviour of the Employee, in absenting himself, contributed largely to the ending of the employment.

In considering redress these views will need to be referenced.

Unfair Dismissal, Procedures, Hasty decisions.