Complainant

Respondent

Parties

Brian Delahunty

M&M Products Limited

Representatives

Spelman Callaghan Solicitors

Barry O’Mahony BL instructed by ARAG Legal Protection Ltd

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-00044848-001

30/06/2021

The complainant asserts that he was unfairly dismissed by the respondent, who asserts that there was no unfair dismissal as the complainant resigned and abandoned his employment. The fact of dismissal was in dispute.

The complainant outlined that his employment commenced in 2010 after three years of seasonal employment. He started as a general operative and was promoted in 2014 to plant manager. The respondent manufactured food stuffs, for example breadcrumbs. The complainant described the working environment as blunt where colourful language was used. The complainant denied that the message of the 12th March 2021 amounted to his recognition and that the messages showed that he had been fired.

On affirmation, the complainant said that the director had asked him for help preparing samples on the 12th March 2021. At this time, the complainant attended a production line which had ceased. The complainant told the director that he was addressing this. The director called him to the boardroom. The complainant described the director as being agitated and aggressive. The director was shouting and continued to shout as the complainant left the room. The complainant said that the director told him to give him the keys and to ‘get the f*** out of the factory’. The complainant got the keys from his locker and threw them onto the chair. He then went home. The complainant then messaged the HR Manager and sought a letter to claim social welfare. The complainant said that it was his belief that he had been dismissed by the respondent.

The complainant outlined that he met the director at the meeting of the 24th March 2021. They spoke about losing their temper and the complainant being put back on pay roll. They agreed that the complainant should meet the director’s son and ended the meeting by shaking hands. The further meeting was arranged for the 30th March 2021.

The complainant said that he attended the meeting of the 30th March 2021, thinking that he would be told his start date. The director, however, told the complainant that he could not have his son and the complainant working there. The complainant told the director to f*** off and left. The complainant said he was ‘refired’ at this meeting and paid for a further three weeks. The complainant referred to being ‘refired’ in later emails and the respondent never denied this.

The complainant outlined that he was on about €60,000 gross in this role. He commenced a new role on the 16th April 2021 and was on €16.50 per hour. On the 21st May 2021, he started a plant manager role on €21.50 per hour, although there was less overtime. He stated that he had incurred financial loss of €23,600.

In cross-examination, the complainant accepted that he thought the director had wanted him to stay. The complainant denied refusing to speak with the director’s son and that they did not talk. The complainant denied shouting aggressively on the 12th March 2021. He was attending to the production line while separately helping the director with the troughs. He denied telling the director to ‘f***ing make up his mind’ and in his normal voice, said ‘leave me alone’ to the director. The complainant said that he threw the keys on the chair after the director shouted at him to ‘get the f*** out of the factory’. It was put to the complainant that he had resigned his employment on the 12th March 2021 and the meeting of the 24th March 2021 was because his getting his job back was under consideration; the complainant asked why was he then put on payroll. The complainant said that he left the meeting of the 30th March as the director had said that he was not wanted. He told the director to ‘f*** off’ as he had wasted his time.

In closing, the complainant outlined that he was summarily dismissed on the 12th March 2021 when he was told to return the keys and to ‘get the f*** out’. The complainant’s evidence was that he did not intend to terminate his employment in the message and was clear about this in later emails. This was not rebutted by the respondent. The complainant outlined that he had been reinstated on the 24th March 2021 and restored to payroll. He had been fired, rehired and then refired.

The respondent outlined that the complainant had abandoned his employment on the 12th March 2021 and was not dismissed. He had walked out of the workplace, throwing keys through a door. The complainant had confirmed his resignation in the text message of the 11.59am on the 12th March 2021.

On affirmation, the director said that they had been busy on the 12th March 2021. The complainant had not done a mix as requested and became very annoyed on the floor. The complainant’s behaviour worsened in the boardroom and said that he was not taking this s*** anymore. The director said that he followed the complainant as he did not want him on the floor and told the complainant he needed the keys back. The director denied telling the complainant that he was dismissed. The director had understood from the messages that the complainant had resigned, the first stated this and the second was for social welfare. The email of the 16th March 2021 was to communicate that the complainant did not work for the respondent anymore and that the complainant had left his employment in the text.

At the meeting of the 24th March 2021, the complainant had said that he needed his job back and the director put him on payroll to help the situation. The director did not indicate to the complainant that he had been re-employed. The complainant was still not an employee. At the meeting of the 30th March 2021, the director said that he wanted to tell the complainant that he was not bringing him back and that he would not be rehired. The complainant immediately lost his mind and was furious. The complainant told him to ‘f*** off’ and walked out. The director said that he was not prepared to bring the complainant back.

In cross-examination, the director said that the complainant was an excellent worker. He said that language in the factory could be fruity, and it was rare that it was ever an issue. He had asked the complainant to prepare a trough, but he had not done this. The director went to mix it himself. The director would have been angry as the complainant was then smoking in the car park but said that he had not remained angry. He denied that the complainant had to replace the film on the production line.

The director said that the meeting in the boardroom had lasted a few minutes. He denied being abusive to the complainant, who was furious. The director denied telling the complainant to get the ‘f*** out of his factory’. The director felt that the complainant had thrown the keys at him. The complainant had said that he had had enough and could not take this ‘s***’ anymore. The director said that he then returned to the production line. It was put to the director that the respondent had not documented what had happened at the meeting; the director replied by referring to the complainant’s message.

The director denied that restoring someone to pay roll was re-employing them. He said that he did this to help the complainant. He said that there was no defined purpose for the meeting of the 30th March 2021, and it was not just about meeting his son. The director said that he told the complainant on the 30th March 2021 that he was not re-hiring him. It was put to the director that the complainant had said he was fired in the email of the 13th April 2021, and he had not denied this; he said that he felt that he did not need to challenge everything the complainant stated, referring to the complainant’s earlier messages. In re-examination, the director confirmed that he had not rehired the complainant on the 24th March 2021.

On affirmation, Ms McInerney said she received the message from the complainant and showed this to the director, who set out what to say in reply. She outlined that the complainant had earned €763 per week in 2021.

In closing, the respondent referred to Casey v Dunnes Stores [2003] ELR 313 to submit that the question of whether there was a dismissal was decided on a balance of probabilities. As in Casey v Dunnes Stores, there was no document from the employer confirming dismissal. The documentary evidence of the complainant indicated that he had resigned. By sending the message on the 12th March 2021, the complainant terminated the contract of employment. It submitted that this was a unilateral unambiguous and unconditional act of resignation, per Millett v Shinkwin [2004] ELR 319 and Longford County Council v McManus UDD1753. In the alternative, it was submitted that the complainant had contributed 100% to his dismissal.

This is a complaint pursuant to the Unfair Dismissals Act. The complainant asserts that he was dismissed on the 12th March 2021, later rehired and then fired again, this time on the 30th March 2021. The respondent asserts that the complainant resigned and abandoned his employment on the 12th March 2021.

While there are several sharp conflicts in evidence between the parties in this case, it is also the case that this was a largely successful working relationship in an established family business. The complainant and the director generally worked well together, albeit there could be robust exchanges and ‘fruity’ language. It was a pressure work environment and they supplied food products to important clients. The evidence referred to an incident in late 2020, after which the complainant indicated he was resigning. The director persuaded the complainant to change his mind and they continued to work together until the events of the 12th March 2021.

Events of the 12th March 2021

The complainant asserts that the director dismissed him on the 12th March 2021 by telling him to ‘get the f*** out of the factory’ and to return the keys. The respondent denied saying this and asserts that the complainant walked out and confirmed the resignation at 11.59am on the 12th March 2021.

The whole chain of messages of the 12th March 2021 read: Complainant, 11.59am ‘Terminate my employment today’ and at 12.02pm ‘I need a latter stating I was fired will u email it to me please’ Respondent at 12.54pm ‘do you want it emailed or posted?’ Complainant at 12.55pm ‘Both please’ Respondent reply ‘What’s your address’ Complainant at 12.57pm ‘Just send it to my mams…’ The respondent letter of the 12th March 2021 states ‘the employment of [the complainant] was terminated on Friday 12th March 2021’. This was emailed to the complainant at 5pm with a message ‘See attached termination letter’. In his reply of 5.17pm, the complainant states ‘Thanks very much but could u also send me a letter explaining exactly why I was terminated and kicked out of the building please.’

Messages of the 15th & 16th March 2021

In a reply of the 15th March at 4.21pm, Ms McInerney stated ‘your contract of employment was terminated as you requested in your first text message.’ At 4.49pm, the complainant stated ‘Yes u understand that it’s terminated I’m looking for a detailed letter stating reasons for termination reasons I was told to get the f*** out of [the director’s] factory’. The detailed email of the 16th March 2021 gives the reasons for the termination and refers to the complainant’s message of the 12th March 2021, stating ‘if [this message] was misinterpreted, we can discuss this also [at the proposed meeting]’.

Did the complainant resign?

Having considered the evidence and reviewed the messages, it is clear that the interaction of the 12th March 2021 was fraught and robust. It ended with the complainant throwing keys back through the door. The complainant and the director had very different recollections of what was said. I note the differences in evidence. It is the case that two people can observe and participate in the same event and later give different accounts of what happened. It is not only that one may be telling the truth, and another, not, but people may also form subjectively different accounts and recollections of an incident.

The first question to decide is whether the complainant’s acts of leaving the workplace and/or the words ‘Terminate my employment today’ amount to a unilateral act of resignation expressed in unambiguous and unconditional terms. There is a conflict in evidence regarding the circumstances around the complainant leaving the workplace.

I have regard to the case law cited by the parties. I note the well-established authority of Millett v Shinkwin [2004] ELR 319 where the Labour Court held that the claimant’s letter of resignation was not a fully informed and calculated act, particularly following ‘a robust dressing down’ by the employer. I note that a typed letter of resignation was put on the employer’s desk in Millett v Shinkwin rather than a four-word message. I note the EAT determination in Casey v Dunnes Stores, in particular the claimant’s refusal to reconsider her position that she would not work on Mondays, including public holidays. In Casey v Dunnes Stores, the majority held that the claimant had abandoned her employment by not attending work on a Monday she had been rostered to work. I note Longford County Council v McManus which related to a senior engineer’s application for retirement and six postponed dates of retirement; the Labour Court held that the claimant was not entitled to withdraw the written retirement application given that it was unconditional and unambiguous. 

Having regard to this case law and even taking the director’s account as a full and accurate account, I would not take the complainant’s actions and/or words as an unambiguous act of resignation, in particular where it was the director who asked for the keys (per both accounts). The four words that constitute the text message cannot be said to amount to a resignation, especially when read in conjunction with the complainant’s other messages, where he expressed the clear view that he had been fired. Even taking the director’s account as correct (that he had not dismissed the complainant on the 12th March 2021), it is clear from the messages of the 12th March 2021 that the complainant had interpreted events as him having been dismissed. I, therefore, find that neither the complainant leaving the workplace or the first message, taken on their own or together, constitute a resignation.

The act in Millett v Shinkwin was arguably a clearer act of resignation than the one suggested in this case but held not to be one by the Labour Court (it was an actual resignation letter, and the claimant changed her mind as opposed to clarifying his position). The instant case is quite different from Casey v Dunnes Stores where the claimant had maintained a fixed interpretation of her contractual terms and did not attend for rostered work on the June 2003 public holiday. It was held that not showing up for work amounted to abandonment. These circumstances differ greatly from the fraught and robust exchange in this case. In Longford County Council v McManus, the claimant had applied in writing to retire and then negotiated and postponed the date of retirement six times; again, a deliberate process far different to the instant circumstances.

Was the complainant dismissed?

This is a complaint of unfair dismissal, and there must, therefore, be a ‘dismissal’ within the definition of section 1. This encompasses where the employer terminates the employment relationship, or where the employee shows that they were constructively dismissed.

There was a conflict in evidence regarding the events of the 12th March 2021. There was also conflict regarding what the meeting of the 24th March 2021 was about as well as the meeting of the 30th March 2021. Having considered the evidence in its totality, the act that most constituted an act to terminate the employment was the respondent’s actions on the 30th March 2021. This was the clear statement of the director that the complainant would not be returning because he and the director’s son did not have an effective working relationship.

Even taking the complainant’s account of the 12th March 2021 as correct (i.e. being told to ‘get the f*** out of the factory’ and to return keys), I would see this as part of the pattern of robust exchanges. The respondent’s later correspondence, especially the letter of the 16th March 2021, indicate that the respondent considered there to be an ongoing relationship. After all, why restore the complainant to payroll after only three days, but also dovetail the complainant returning to duty with ironing things out with the director’s son (a suggested purpose of the meeting of the 30th March)?

On balance, I would find that the 30th March 2021 was the date of dismissal. In the alternative, the complainant was entitled to consider the 12th March 2021 as marking an act of termination. I find that the complainant’s account of the 12th March 2021 is more likely, on the balance of probabilities (per Casey) to be accurate. The complainant’s messages corroborated his cogent account of the 12th March 2021. His messages were short and to the point and were clear that his employment was terminated. The respondent was more considered and cautious in the correspondence, for example, of the 16th March 2021, where he does not explicitly deny that the respondent had terminated the complainant’s employment. The director’s evidence referred to the complainant using a term on the 12th March 2021 to describe the director’s behaviour that day, when it was clear at the adjudication that the complainant was not aware of this term being used in this particular way; this suggests that the complainant could not have used the term in the manner attributed to him and therefore the respondent’s evidence was not accurate.

Taking either date, the complainant was dismissed by the respondent. I find that the respondent has not discharged the burden of proof in section 6 of the Unfair Dismissals Act that the dismissal was unfair. There was no process to ground a dismissal on conduct, capability etc and no such substantive grounds were relied on. I find that there were no substantive grounds to rebut the presumption that the dismissal was unfair.

Redress

While both parties in this case used forthright language in their interactions, this was not uncommon in the workplace. I find that the complainant was serious about returning to duty and had years of excellent performance, as fairly acknowledged by the respondent. The complainant was dismissed, and his employment should have continued beyond the 30th March 2021. I find that the complainant cannot be said to have contributed to his dismissal, as the decision to dismiss was one entirely made by the respondent. This is very much the case as there was no process establishing any conduct or performance issue. Without a finding of a breach by the complainant, how could the complainant be said to have done anything wrong which could contribute to his dismissal?

The complainant mitigated his loss by quickly taking up a general operative role and then progressing to a plant manager role. He has submitted a detailed schedule of loss and is entitled to the losses set out therein. I expect that the complainant will continue to progress and will make up any further loss. I, therefore, award the complainant just and equitable compensation of €23,654.

CA-00044848-001

For the reasons set out above, I decide that the complainant was unfairly dismissed, and I decide that the respondent shall pay to the complainant €23,654.

Unfair Dismissals Act / resignation v dismissal / Millett v Shinkwin