Complainant

Respondent

Parties

Niall Moynagh

Meridian Security Limited

Representatives

Clíonadh Breen BL

Valerie Morrison, Peninsula

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-00046258-001

15/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00046258-002

15/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00046258-003

Withdrawn

15/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00046258-004

Withdrawn

15/09/2021

Meridian Security Limited provides static guards and security advice to businesses.  The directors are two brothers, Shane and Barry McCoy.  The complainant started working with them on April 8th 2019 and, when his employment ended, he was assigned to Tayto Park in County Meath.  The complainant’s evidence is that, for most of his time with the company, he reported to Barry McCoy.  However, on the last day of his employment, August 23rd 2021, he was in contact with Shane McCoy, who attended this hearing on November 3rd 2022.

The respondent’s position in relation to the complaints under the Unfair Dismissals Act 1977 and the Minimum Notice and Terms of Employment Act 1973 is that the complainant was not dismissed, but that he stopped turning up for work.  As the fact of dismissal is in dispute, it is the responsibility of the complainant, in the first instance, to establish that, as a matter of probability, his employment was terminated by his former employer.

Evidence of the Complainant

The complainant said that he was assigned to work as a security officer at Tayto Park and with Doctor on Call and in other locations.  He normally worked Monday to Thursday or Monday to Wednesday and every weekend.  He always worked on Sundays for Doctor on Call.  He worked 11-hour shifts on Saturdays and Sundays.

On Monday, August 23rd 2021, the complainant said that he was scheduled to work an 11 hour shift in Tayto Park.  The day before, Sunday, August 22nd, he had been working outside all day and he finished work at 8.00pm.  He said that he sent a text message to Mr Barry McCoy, telling him that he had an ear infection and that he wouldn’t be in work the next day.  When he didn’t come to work on the Monday, he said that he got a text message from Mr Shane McCoy, saying, “no show for work today?”  When the complainant replied that he had told Barry McCoy that he wouldn’t be in work, he said that Shane McCoy phoned him and told him that the company policy was that you had to phone if you were going to be out sick.  Mr McCoy told him that he would have to provide a sick cert.  He said that Mr McCoy told him that he was taking him off the roster.  The complainant said that he asked Mr McCoy what he meant and that he replied, “you’re gone.” 

In response to a question from Ms Breen, the complainant said that he was told at his interview that Barry McCoy deals with absences and it was never a problem before when he sent a text message to him to say that he wouldn’t be in work.  He said, “Barry said, if I’m ever sick, just text me” and that the response from Barry was always, “that’s grand.”  

When he was asked by Ms Breen if he looked for another job when he felt better, the complainant said, “I was so mad because of the way they treated me.  I was thrown under the bus.”  He said that his “head wasn’t right” and that he had to get a high dose of medication.  He said that he feels alright today, and that the medication has been lowered, but that he doesn’t trust anyone anymore.

Ms Breen asked the complainant about the emails that he got from the company after August 23rd.  She referred to an email from Mr Shane McCoy in which he was informed that he was “expected back on duty Wednesday 25th in Tayto Park.”  The complainant said that he was “so angry about the lies” and that the company sent him a roster, trying to cover up. 

Cross-examining of the Complainant

Ms Morrisson asked the complainant about a text message he sent to Barry McCoy on June 9th 2021 in which he asked for more money for working in Tayto Park or “other wise u may sack me.” 

The complainant replied that the duty in Doctor on Call was only 10 minutes from his house and “they wanted me to go 50 minutes to Tayto Park.  I wanted to stay in Doctor on Call.”  He said that the company had no other good workers to go to Tayto Park.  He said that “Barry had a load of new workers and he wouldn’t put them in Tayto Park.  I got mad.”  Even though he was with the company for two years, the complainant said that he was still on the JLC rate.  He said, “Why wouldn’t I get mad?”  The complainant said that he was in Doctor on Call for over a year and then he was assigned to Tayto Park for three months.  “Then they brought two new foreign lads into Doctor on Call.”  He said that the managers told him that he would be back in Doctor on Call in October.

The complainant said that he sent a text message to Barry McCoy at 7.58pm on Sunday, August 22nd.   He was due in work in Tayto Park at 9.30am the next day.  He said that he phoned before he sent the text message.  He then went home and he wasn’t well.  He said that he never heard back from Barry Mc Coy and that someone should have contacted him.

Ms Morrisson asked the complainant if he was aware that Barry McCoy was on leave.  The complainant replied that the two McCoy brothers run the company and that Barry was “real relaxed about things.” 

At 20.34 on Monday, August 23rd, the complainant sent Shane McCoy an email in which he said that he wasn’t rostered for Wednesday because he had been sacked that day.  He told Mr McCoy that he had recorded the phone call and that Mr McCoy would hear from his solicitor.  In reply to a question from Ms Morrisson, the complainant said that he didn’t record the phone call, but that he just said he did.  He said that he had sent his solicitor an email and that he was hurt at the way he had been treated.

The following day, Tuesday, August 24th at 15.30, the complainant informed Mr McCoy that he had had a meeting with his solicitor.  In his evidence, he said that he had had a phone call with his solicitor and that he met him on Thursday.

Ms Morrisson asked the complainant why he didn’t go to work on Wednesday, August 25th, as he had been requested to do.  The complainant replied, “I was sacked.”  Ms Morrisson pointed out that he was issued with a roster on Thursday, August 26th.  The complainant repeated that he didn’t go back because he was sacked.  Ms Morrisson said that it was never the intention of the respondent to dismiss him.  The complainant replied, “They made it look good on the books.”  Ms Morrisson asked the complainant if he considered contacting either Barry or Shane McCoy.  He replied that he was being treated by his doctor and that he couldn’t go back.

Ms Morrisson reminded the complainant that, half an hour after the phone call during which he alleges he was dismissed, he sent a text message to Mr McCoy telling him that he was owed 73.5 hours’ holiday pay and 31.5 hours for the week that ended on Sunday, August 22nd.  The complainant said that he wanted to get what he was owed.

Evidence of Mr Shane McCoy

Mr McCoy said that he is a director and shareholder of Meridian Security with his brother, Barry.  On Monday, August 23rd, his brother was on leave and he was in Tayto Park as the on-site supervisor.  The complainant didn’t show up for work and Mr McCoy said that he sent him a text message.  The complainant replied by text and said that he had sent a text message to Barry the previous evening.

Around 2.30pm, Mr McCoy said that he phoned the complainant “to go over a few things.”  He said that he wanted to highlight that the procedure is for an employee to phone if he is going to be out sick and not to send a text message.  He said that he asked the complainant for medical certs for previous absences.  Mr McCoy said that the complainant wasn’t happy when he told him what the procedure was but he said that he would provide certs from his doctor and his dentist.

Mr McCoy said that the complainant brought up his assignment in Tayto Park and he said that he wasn’t happy about it.  He said that the conversation got heated and “we both got worked up.”  Mr McCoy said that the complainant wasn’t sacked and the call ended when they both hung up.  The call ended around 2.30pm or 3.00pm and, at 3.30pm, Mr McCoy said that he got a text message from the complainant telling him that he was owed holiday pay and his wages for the previous week.  Mr McCoy said that he didn’t reply by text but that he sent the complainant an email in which he highlighted the procedures to follow regarding absences from work.  In the email, he wrote, “You are expected on Wednesday 25th in Tayto Park.”

Mr McCoy said that the complainant is a good worker, and that he is very capable of dealing with people and that he was good at his job in Tayto Park.

Over the next few days, Mr McCoy said that there were emails back and forth and talk of a solicitor.

Mr McCoy said that, when a new employee starts in the job, he or his brother go through the terms of employment.  They issue a uniform and a company handbook and they point out the procedure for notifying them of an absence.  The procedure is to phone Barry, and if Barry isn’t available, then he should be contacted.

Cross-examining of Mr McCoy

When he was in Tayto Park on the morning of Monday, August 23rd, Mr McCoy said that he wasn’t aware that the complainant had sent a text message to his brother the previous evening.

Referring to the phone call he had with the complainant around 2.30pm on Monday, August 23rd, Mr McCoy said that the complainant raised grievances on the phone.  He said that he didn’t like working in Tayto Park and he complained about long hours.  He said that he wasn’t happy, that he didn’t like the company and that he was only staying because the work was easy and that it suited his training.  Mr McCoy said that the complainant was frustrated and angry and that the conversation became heated.  Mc McCoy said that he did not sack the complainant.

Before he finished giving evidence, and, in response to a question from me, Mr McCoy said that he had never dismissed anyone from his company.  He said that he had no issues with the complainant and that he valued him as an employee.  He said, “we asked him to go to Tayto Park because he’s good at his job.”

In June 2021, Mr McCoy said that the complainant gave them an ultimatum, “give me more money or sack me.”  The JLC standard rate for security officers is €11.65 per hour and the complainant was paid €12.05.  Mr McCoy said that around half of their employees are on €11.65 and some are on a higher rate.

Was the Complainant Dismissed?

A definition of “dismissal” is set out at section 1 of the Unfair Dismissals Act.  Dismissal is defined as the termination by the employer of the employee’s contract or, the termination by the employee of his contract.  At section 22.13 of “Redmond on Dismissal Law,” by Dr Desmond Ryan, (© Bloomsbury 2017), Dr Ryan refers to the general understanding of dismissal:

“In general a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt dismissal was intended or that it may be reasonably inferred.”

It is the complainant’s evidence that he had an ear infection on Sunday, August 22nd when he was on duty in Tayto Park and that he sent a text message to Mr Barry McCoy, letting him know that he wouldn’t be at work the next day.  The message wasn’t passed on and, when Mr Shane McCoy arrived in Tayto Park and the complainant hadn’t turned up, he sent him a text message at 11.03 saying, “no show for work today?”  A text message exchange followed and, in the afternoon, Shane McCoy phoned the complainant and told him that he should have phoned to say he wouldn’t be in and that he was expected to produce a medical cert if he was absent due to sickness.  It is accepted by both sides that the conversation became heated.  The complainant’s evidence is that “Shane rang me and said he was taking me off the roster.”  From this, he concluded that he was dismissed.

Whatever was said in the telephone conversation on Monday, August 23rd, I am satisfied that the complainant was not dismissed.  I have reached this conclusion for the following reasons:

The complainant was good at his job and entirely suitable for the role of security officer at Tayto Park.  He is a strong, fit man and it seems to me that his presence in Tayto Park provided reassurance to the management and staff.  While his absences were problematic, by dismissing the complainant, the respondent would have been creating a difficulty for themselves.

There was no clear and unequivocal communication from the respondent to the complainant confirming that his contract was at an end.  In fact, the opposite message was sent to the complainant when,

§  At 18.06 on August 23rd, he was told in an email that he was expected back on duty in Tayto Park on August 25th, and,

§  In an email at 14.32 on August 24th, Mr McCoy said, “I just want to reiterate that at no point have you been dismissed from your position with us and if you are fit to work, we are expecting you on the site tomorrow the 25th of August 2021.”

I do not accept the complainant’s argument that these emails were an attempt to undo his dismissal, which he alleges occurred in the phone call on the afternoon of August 23rd.  Even if, in the above messages, Mr McCoy was seeking to undo something said in haste, it would have been reasonable for him to do so. 

At section 22.16 of “Redmond in Dismissal Law,” Dr Ryan refers to the case of Devaney v DNT Distribution Company Limited, UD412/1993.  The circumstances of this case were similar to the complaint under consideration here where the complainant considered himself to have been dismissed after a heated exchange:

“…where words are genuinely ambiguous what needs to be decided is what the speaker intended.  Did the employer mean to bring the contract to an end?  In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.  We find, having regard to the relationship that existed between the parties prior to the termination and the claimant’s evidence that, (the director of the respondent company) often expressed his feelings in very strong language, that the words uttered by (him) in an angry mood, did not amount to a dismissal and were never intended as such.”

No evidence was submitted that Mr McCoy generally expressed himself in strong language; however, even if he was dismissed in haste, the dismissal was retracted in writing.  The respondent’s intention in this regard was entirely unambiguous and this should have been sufficient to demonstrate to the complainant that he was not dismissed.

It is my view that the complainant was not dismissed, but that he left his job of his own accord. 

CA-00046258-001:  Complaint under the Unfair Dismissals Act 1977

As I have concluded that the complainant was not dismissed, I decide that this complaint is not well founded.

CA-00046258-002:  Complaint under the 1973

As I have concluded that the complainant was not dismissed, I decide that he has no entitlement to notice and his complaint under the Minimum Notice and Terms of Employment Act is not well founded.

Dismissal in doubt