Complainant

Respondent

Anonymised Parties

A Worker

Tyre Company

Representatives

  The claimant represented  himself

Patrick O'Neill A&L Goodbody

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00045546-001

04/08/2021

 The claimant submitted that he  was employed as  a mechanic with the respondent from the 4th.Feb.2021 to the 15.02.2021- he asserted that he was operating under very poor and cold working conditions and that he was not allowed to wear warm clothes during the poor weather .He asserted that he complained to the  manager about the working conditions via text messages and said he would return a few days later when the weather improved .He asserted that when he returned to work on the 15th.February , he was fired without explanation. The respondent denied that the claimant was dismissed and asserted that he resigned without notice on the 12th.Feb.2021 complaining of the cold and leaving the company short staffed on the day.

The complainant submitted as follows in his complaint form :-

“I was not allowed to wear warm clothes during very cold weather.It was snowing and windy in working place -all overhead doors were opened. I send shop manager sms regarding bad working conditions at workshop and told him that I will return to work few days later when weather will be slightly warmer. When I came back on Monday I was told by team leader that I am fired without any explanations. I was not given any papers or pay slips. I was told that work will be inside garage only but sometimes I have to work outside garage and it was very cold inside garage , temperature was very low , I was told not to wear my winter coat and I didn’t get any uniform “.

At the hearings, the claimant asserted that he was not allowed to wear a high visibility jacket and he had to go to the company office to warm up. He asserted that he complained to the manager via text message, but he never replied. He stated that he returned to work at 8.00a.m. on the 15th.Feb. and was told he was no longer working there. He stated he never received a contract of employment and that when he went to source alternative employment with the same company at another location, he did not get a job because they knew about the dispute between him and the respondent. The claimant said he sent the message to the boss. When he went on site on the 15th.Feb. he was told he had to leave. He asserted that he never got a response to his text message from the company.

 The respondent’s representative submitted to the complainant that he had resigned – he had been due to work on Fri.12th.Feb and had failed to show up on the Friday or on the Saturday. He replied it was too cold to be at work and he was not allowed to wear warm clothing. He complained of the wind and asserted it was very cold as the cars had to have access to enter and exit the premises. He said there were no heaters and it was like working outside. The complainant was asked why he did not go to work when he was scheduled for work and he replied that he sent a text message complaining about the cold. The complainant said “I never said I wasn’t coming back”. It was submitted by the respondent’s representative to the complainant that he did not send a text or try to ring the respondent. He said he complained to his supervisor about the cold and the manager replied that he would have to go to the work area. The respondent’s representative referenced that he had regular smoke breaks ad he replied he did not have regular smoke breaks. The complainant said that he did not contact HR when he returned to work on the Monday as he was told he had to leave and that he was fired. The claimant asserted that he wrote to the Branch Manager asking for papers about his dismissal but he never got a response. When asked why he did not contact HR – the complainant responded that he asked for the dismissal papers and did not get them. It was submitted by the respondents representative that it was reasonable for the company to conclude that he had resigned and it was contended that the complainant never challenged or appealed the dismissal. The complainant replied I wrote to the Manager and asked for the papers. The respondent’s representative asserted that because of the complainant’s conduct and missed commitments they had to conclude the complainant had resigned.

On the 28th.Sept. 2022, the complainant submitted to the WRC a screen shot of the following text message to the Branch Manager :

Hi T it is too cold for me to work this week, Sorry, see you Monday.

Dated 12.37 on the 11.02.2021

The respondent furnished the following submission in advance of the first hearing on the 16.08.2022.

 1.2. The respondent’ s representative clarified the correct name of the respondent .

1.3. The claim of unfair dismissal is set out in the complaint form. The Respondent is of the view that this forms the entirety of the complaint and have prepared these submissions on that basis as the Complainant has, as of the date of this submission, failed to furnish any submission substantiating his claim.

 Background to the Complaint

 2.1. The Complainant commenced employment with the Respondent on 4 February 2021 in the role of Car Mechanic in the Respondent's branch based in the Northeast. The Complainant was employed on a full-time basis, working 5 days a week.

 The Complaint and Response to the Complaint

3.1. Per the complaint form, the Complainant alleges that he was unfairly dismissed i.e. "fired without any explanations".

 3.2. The Respondent rejects entirely the entirety of the Complainant's assertions, as set out in his complaint form. The Complainant was not dismissed, rather he resigned, without giving the Respondent any notice and the Respondent was therefore left unexpectedly short-staffed over a busy weekend period.

3.3. The Complainant was not rostered for Thursday 11 February 2021 but was scheduled to work on Friday 12 February 2021 and Saturday 13 February 2021. The Complainant failed to turn up for work on the Friday and instead sent a text message to the manager of the branch, stating that it was "too cold" and he was "not returning to work".

 3.4. The Branch Manager   reasonably concluded that the Complainant had resigned as he said that he was not returning to work. He then notified the Respondent's regional manager, Mr. KC, of the Complainant's text message and resignation. Mr. C subsequently informed Ms. M the Respondent's HR Manager, of the Complainant's decision. In accordance with her usual practice, Ms M took steps to process the Complainant as a leaver, to remove his profile from the weekly payroll system, and updated the time management system to remove his name.

 3.5. The Complainant had been scheduled to work the following day, on Saturday 13 February 2021, but did not turn up at the branch. Management did not consider this unusual, in light of the Complainant's resignation and had made arrangements to re-assign his duties to other employees to manage his workload. Furthermore, the Respondent made attempts to arrange for additional employee cover to be drafted in to the branch to cover the Complainant's responsibilities as they were short staffed however, due to a surge in Covid-19 cases at that time, management were unable to find a replacement which resulted in a number of customer car services having to be re-scheduled or cancelled.

3.6. The Complainant appeared at the Branch on Monday 15 February 2021, perhaps to collect his tools which he had left in the Branch the week before. The branch supervisor, was surprised to see the Complainant and said to him that he thought he had left.  The Supervisor told the Complainant to speak to HR, or Mr. C on the matter. The Complainant entered the Branch in order to collect his tools, and then left and never made contact with anyone in the Branch, HR or Mr. C.

3.7. The Respondent was therefore extremely surprised to receive the compliant form, some six months after the Complainant had resigned, alleging that he had been unfairly dismissed.

 3.8. The Respondent's position remains that the Complainant resigned on the morning of Friday 12 February 2021 and the Respondent reasonably accepted his decision. The Respondent's belief in this regard is substantiated by a number of factors including i. the entry of a note reading "left and will not be back" that was entered by management in the clock-in card records of the Complainant, see Appendix 1, on Friday 12 February 2021; ii. upon receipt of the text message from the Complainant, the Branch Manager immediately contacted Mr. C informing him of the Complainant's resignation. In turn, Mr. C updated Ms. M the HR Manager who subsequently accepted the decision and immediately sought to remove the Complainant's details from the Respondent's time management system; iii. the fact that the weather conditions in Drogheda for the week between 8 - 14 February 2021 were not unusual for that time of year. This is relevant because in his complaint form, the Complainant alleges that he stated he would only return to work "when weather will be slightly wormer". The weather records show that conditions were improving throughout the course of that week and, in particular, the weather was reasonable on (i) Friday 12 February 2021 (the day the Complainant sent the text message to the Branch Manager and did not attend work) and (ii) Saturday 13 February 2021 (the second day the Complainant failed to turn up for work) see Appendix 2. The assertion made by the Complainant in his Complaint form, i.e. that he decided not to attend work until the weather improved, does not hold up to scrutiny. Ms. M has worked with the Respondent for a period of 8 years and during that time no employee has ever made a complaint about cold working conditions; and iv. the fact that the Complainant never contacted HR, or any member of management following his text message of Friday 12 February. If it is the case, as he now appears to contend, that he did not intend to resign, surely, he would have contacted his employer to clarify his position. Indeed, his supervisor suggested this to him on Monday 15 February but he did not do so.

 3.9. It was entirely reasonable in the circumstances for the Respondent to conclude that the Complainant had resigned, in circumstances where he (i) did not show up for work (ii) sent his manager a text message stating that he would not be returning and (iii) did not show up for work again the following day. Other matters raised in the Complaint Form

 4.1. Whilst not directly relevant to the question of the Complainant's alleged unfair dismissal, in the Complaint Form, the Complainant states that he was (i) "not allowed to wear worm clothes and (ii) "I was not given any papers or pay slips." Both these statements are untrue:

4.1.1. Immediately upon the commencement of his employment the Respondent placed an order to purchase a uniform for the Complainant, including a coat. During that time, the Respondent, like every other employer, was working through a surge in the Covid19 pandemic and there were some expected delays with the delivery times of clothing. Nonetheless, the Complainant was permitted to wear warm work clothes underneath his own blue overalls, plus his own coat, a wool hat and he had his own steel cap boots to wear during work hours. The Respondent's position is that the Complainant was permitted to wear an appropriate coat/jacket over the overalls, and his Supervisor will testify to this;

 4.1.2. Due to the nature of the business, and in an attempt to reduce the risk of contracting Covid19 amongst the workforce, it was standard practice to keep shutter doors open, but the Complainant did not, at any time (nor did any other employee working in the branch,) raise any complaint or grievance with HR or management as to cold working conditions. The Complainant took regular smoking breaks during his brief employment with the Respondent, which were obviously outside, and he raised no issue whatsoever with the weather.

 4.1.3. Furthermore, the nature of the Complainant's role as a mechanic means that it involves manual labour and as such the average employee in these circumstances would naturally find themselves relatively warm while carrying out their duties; and

 4.1.4. The Complainant's final payroll submission was made on 18 February 2021 and this was subsequently provided to the Complainant via post. The Complainant was paid in full for the hours that he had worked the previous week.

Conclusion

 5.1. The Respondent treated the Complainant fairly at all times during his employment. It is not disputed that the Complainant failed to appear for work on 12 and 13 February 2021. The only communication which the Respondent received from the Complainant explaining his absence was a text message which the Complainant sent to the Branch Manager on Friday 12 February. The Respondent's position is that the text message was notification of the Complainant's resignation, and this was further substantiated by the fact that the Complainant did not attend the branch the following day.

 5.2. The Respondent was wholly unaware as to any allegation or assertion that the Complainant did not intend to resign, because he did not bring this to the Respondent's attention and the Respondent maintains that the Complaint resigned from his role on 12 February 2021

. 5.3. Further, the Respondent understands that the Complainant applied for a role with the Respondent in August 2021 – it is the Respondent's contention that he did so because he had resigned in February 2021 and had not been "fired without any explanations" as alleged in his complaint form. The Respondent reserves the right to supplement the above with oral submissions at the hearing of the complaint and to furnish a replying submission in the event legal submissions are received from the Complainant in advance of the hearing date.

The respondent’s representative asserted that they had prepared their submission without any evidence being submitted by the claimant. It was advanced that when the complainant did not show up for work, the company took it to mean that he had resigned and they took him off the payroll system .When the complainant returned on the Monday – the company thought he had left and he was told to speak to HR. It was advanced that the complainant made no contact with anyone , that he resigned on the 12th.Februay and the company accepted his position .It was submitted that the complainant was permitted to wear  warm clothes under his uniform – it was submitted that the complainant had no issue about the weather while smoking .It was contended that the complainant took a unilateral decision on the 12th.February – that he failed to show up thereafter  and logic would suggest he would have appealed .He applied for another position in August 2021 and did so because he had resigned.

 The   Branch Manager confirmed his employment history with the company. He said he assumed the complainant had resigned when he did not show up for work. He  confirmed he asked the complainant not to wear  the yellow coat because it was too big and bulky. He said the complainant’s absence put the company under a lot of pressure – he had tried to get cover for him. The manager said he believed the complainant had resigned.

When the manager was asked by the complainant why he did not respond to the text message  and try to resolve the issue the manager  replied that he contacted his regional manager and he was advised not to respond and to refer the matter to HR. The manager said that he had a business to run and was under no obligation to contact the complainant. The manager had no recollection of the complainant coming into the office to warm up.

The Supervisor   said   he was surprised when the complainant came to work on the Monday and he told him to contact HR. When the complainant went to take his tools, the supervisor   asserted that he never said you are fired. The complainant asserted that when   the complainant came to the workshop on Monday the manager told the complainant to pick up his tools and leave – the Supervisor replied I never did that. When the   complainant asserted to the Supervisor that he asked for the dismissal papers, the Supervisor replied “I asked you to contact HR”.

The HR manager advised that no termination letter was issued to the complainant. She said that during Covid the business had tried to get extra staff and had lost business. She confirmed that the complainant did not lodge an appeal. She said it would not be unusual for blue collar workers to resign by text. She stated when asked if the complainant was dismissed why would he apply for another role, the HR manager replied this was not unusual – the company believed he had resigned and there was no contact after that.

 The HR manager explained when asked why she had not met the complainant, she replied that she was based in another office and advised that the company policies procedures and contact details were on the internet. The manager was asked by the complainant why the complainant should contact her when he knew nothing about her. She spoke of the challenges during Covid and advised that the company did not do exit interviews. She said that as someone departed from the Company , Revenue and payroll would be notified.

The following further replying submission was received from the respondent on the 3rd.Jan 2023:

1.2. The Respondent provided an initial replying submission to the WRC, and the Complainant, on Thursday 6 October 2022 wherein it outlined the Respondent's sincere belief that the Complainant had failed to provide copies of the text messages he was seeking to rely upon.

 1.3. The Respondent seeks to correct the record and confirm that the Complainant emailed copies of the text messages to the solicitor for the Respondent, Mr. Patrick O'Neill of A&L Goodbody LLP, on 28 September 2022. Mr. O'Neill was on extended leave on the day the emails were sent and the relevant correspondence remained lodged in his inbox. The Complainant was automatically directed to contact another member of A&L Goodbody LLP, details of which were provided, during Mr. O'Neill's absence but he failed to do so.

The Complainant's text messages of 11 February 2022 and 15 February 2022:

2.1. The Respondent notes that the text messages, and the alleged accompanying date stamps, were sent on separate attachments and therefore it is not possible to confirm definitively that the text messages were sent on the relevant dates in question. Notwithstanding this, and without prejudice to the foregoing, the Respondent will address the substance of the text correspondence.

 2.2. Text message of 11 February 2022 - the Respondent's position remains, and witness evidence to this effect was provided at the Second Hearing by, the Branch Manager of the Respondent's premises in Drogheda, that upon receipt of the message the Manager  believed the Respondent had informed him that he wasn't returning to work because it was too cold and concluded that the Complainant had resigned from his employment. The Manager cannot recall the reference in the text message to the Complainant allegedly seeking to return to work the following "Monday". The Respondent submitted historical weather data for the relevant time period which undoubtedly proves that the weather on the days in question were, by any reasonable measure, mild. Furthermore, the Complainant acknowledged that he failed to further follow the Respondent's absence notification procedures on Friday 12 February 2021 and Saturday 13 February 2022, days on which he was scheduled to work, by not contacting his line manager and confirming that he would not be attending work on those days. Taking these series of events together, it is the Respondent's position that it acted reasonably in concluding that the Complainant had resigned.

 2.3. 15 February 2022 – The Manager confirmed that it would not have been possible for him to receive this text message, because it was sent to his personal mobile phone and in accordance with standard practice, he blocks the phone number of former employees once they cease employment with the Respondent. The Manager believes that he would have blocked the Complainant's number on his personal mobile some time over the weekend of 13-14 February 2021. On this basis, the first time the Manager, and in turn the Respondent, heard anything about this text message was during the Second Hearing.

Conclusion:

3.1. The Respondent's position remains that the Complainant resigned from his employment. It is noteworthy that the Complainant did not appeal or challenge the dismissal which he is alleging. The Respondent respectfully submits that the Complainant has been somewhat disingenuous throughout the course of these proceedings. The Complainant refused to follow the clear instructions of the Adjudication Officer in failing to produce all evidence that he wished to rely on in advance of the First and subsequently, the Second Hearing. Furthermore, the Respondent's solicitor, appreciated that the Complainant was a lay litigant and reminded the Complainant of his obligations in this regard at the First Hearing and subsequently thereafter by means of written correspondence. Notwithstanding this, the Complainant referred to evidence on the day of the Second Hearing which undoubtedly prejudiced the Respondent's position and undermined its ability to defend itself accordingly.

3.2. It is also noteworthy that the Complainant admitted at the Second Hearing that he applied for another role with the Respondent in August 2021. The HR Manager of the Respondent, confirmed that the role was ultimately put on hold but the Complainant's admission that he only applied for the role in jest to see "how the company would respond" is significant. Questions naturally arise as to why a disgruntled former employee would seek to apply for a role with an employer in circumstances where they are, at the very same time, pursuing a claim against that employer before the WRC. In the Respondent's opinion, the Complainant's evidence as to why he applied for the role is dubious at best and undermines the Complainant's narrative and credibility.

 3.3. Finally, the Respondent respectfully submits that it must be recognised that the Complainant's actions during the period in question contributed significantly to creating an environment of confusion which lead the Respondent to reasonably conclude that he had resigned. The Complainant had only been employed for less than one week when he sent the text message to the Branch Manager on Thursday 11 February 2021 informing him that he would not be attending work – for reasons that have subsequently been proven to be implausible. Furthermore, the Complainant failed to attend work on Friday 12 February 2021 and Saturday 13 February 2021, and failed to follow the absence notification procedures on those days, which again created significant ambiguity as to his intentions to remain employed to the extent that the Respondent acted reasonably in determining that he had resigned.

I have reviewed the submissions and evidence presented at both hearings and noted the polarised version of events leading to the termination of the complainant’s employment. I note the respondent’s characterisation of the complainant’s sms message of the 11th.February of evidence of his resignation. Based on the presentations at the hearings I am satisfied on the balance of probabilities that the text is authentic and is such circumstances must conclude that the claimant did not resign and signalled his intention to return to work the following Monday. I find that the respondent’s actions in terminating the complainant’s employment was premature and unsafe. I further find it was unfair as it was affected without any investigation or any effort to afford the complainant his rights under natural justice. I accept the respondent’s submissions in relation to the challenges posed for the company by the claimant’s failure – without reasonable notice - to attend for work on 2 successive days – in this regard I find that the complainant contributed significantly to his own dismissal and have taken this into account in determining the amount of compensation.

I recommend in full and final settlement of this dispute that the company pay the complainant compensation of one week’s pay – amounting to €527

Unfair Dismissal – contribution to dismissal