Complainant

Respondent

Parties

Gerald  Clapham

Joe O'Connor/Pamela O'Connor     T/ A Joe’s Place

Representatives

  Appeared In Person

 Appeared In Person

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-00051885-001

26/07/2022

On 26 July 2022, the Complainant, a Bar Day Manager, filed a complaint of Unfair Dismissal against the Respondent, who at that time operated a Bar.

The complainant presented as a lay litigant and compiled an outline submission on the facts of the case.

On 9 October 2022, the respondent, also a lay litigant, disputed dismissal in a written note and sought to engage with the WRC to resolve issues.

On 21 July 2023, the complainant attended the hearing alone. The Respondent attended in the company of his daughter.

Unfortunately, the hearing had to be curtailed in response to a Bomb scare at 2pm, when the parties were escorted safely from the building with a commitment to resume the hearing at the earliest opportunity.

I am grateful to the scheduling department who placed the case for resumed hearing on 25 September 2023.

Both Mr. Clapham, the complainant and Mr. OConnor, the Respondent took the Oath to accompany their evidence.

In light of the underlying friendship reported by both parties, I gave the parties time at the head of proceedings to explore the option of resolution referred to in Mr. O Connors outline submission.

This was unsuccessful.

There is a Preliminary Issue in this case on whether a dismissal occurred in accordance with the Unfair Dismissals Act, 1977?  This will need to be decided first.

The Complainant was a long-term friend of the respondent.

He outlined that he had first worked for the respondent as a Tilers Labourer and then diversified as Bar Day Manager since 2001 on a 5-day week. He reduced his work pattern to that of a 3-day week, where Monday and Thursdays were days off.

He carried a residual unease on many aspects of his working life over that period and contended that he had not been paid properly and had been overlooked for tips and other recognitions.

The Complainant accepted that while he was musing on his past work experiences, he had tendered one active claim before the WRC, that was the claim for unfair dismissal.

When pressed for a date in my trying to consider the facts further, the complainant attributed the date of his dismissal as the day he claimed before the WRC and in the aftermath of the conjoined medical certificates as 26 July 2023. He clarified that March 22, 2023, mentioned as the date of dismissal on the complaint form signalled his last working day for which he has not been paid. He accepted that his sick leave had followed this in time.

In all of his tenure, his wages at nett pay €270 weekly, remained unchanged.

He had been troubled by a serious medical illness in June 2021, which caused him to receive surgical treatment. He felt ready to return to work from February 2022.

He claimed that he had been dismissed by the respondent in the context of his not being allowed back to work after his recovery from illness.

In the event of his claim succeeding, he submitted that his preferred remedy was that of compensation. He had not found new work. The Complainant had not received a contract of employment or pay slips in the instant employment.

Summary of the complainant evidence, under oath.

In March 2020, the bar closed due to Covid 19. It subsequently opened for two weeks and closed again.

During the course of the complainant’s illness and treatment, he kept the respondent a breast of details of his progress and was upset when he wasn’t allowed back to work in February 2022 as the Respondent had informed him that he had stronger obligations towards newly hired staff taken on during his illness.

The Complainant returned to work for one shift on 22 March 2022 with an expectation of securing his two additional days to make a 3-day week, but these hours were not made available. He was never paid for that day.

He then proceeded on leave and went on a deferred holiday. He engaged in a request to return to work on 27 March 2022, but accepted that his memory was foggy on the content. He submitted that he had been informed other staff had been hired.

On 19 April,2023, the Respondent contacted him, but he was nervous and became ill, submitting a sick certificate.

The Complainant submitted that he was not fit for work, and he did not tender evidence of mitigation of loss.

The Complainant was unable to secure a return to work and claimed unfair dismissal on 26 July 2022 directly to the WRC when he wrote.

“I would just like to know what my entitlements are if I’m entitled to redundancy or severance pay and am I entitled for a claim for unfair dismissal? “

It was his case that he was obstructed in getting back to work and considered that he had been dismissed. He came to the WRC to get his job back.

The Complainant exhibited an undated letter in support of his case which placed the “deadly corona virus variant in the community “as the reason for the complainant not being in the workplace. The letter was qualified by.

“… Gerald is a respected employee, and I am sure he will be back on our team in the not-too-distant future. “

He also attached a number of screen shots of interparty phone and text discussions.

On probing the circumstances which prevailed 21 June 2022 to 26 July 2022, the date of claim, the complainant confirmed that he had not received a final certificate which allowed him a return to work. He attributed his dismissal to being ignored. Sick notes covered May to June 2022.

He confirmed that 4 staff had been hired during his absence.

He clarified that he subsisted on a combination of covid support payments and illness benefit but had not claimed illness benefit. He had engaged in some minor amount of self-employment.

The Respondent was invited to cross examine the complainant, but refrained, stating that “it was pointless “

In conclusion, the complainant submitted that he some legacy issues regarding his recollection of events in the case. He did not tender medical evidence in support of the assertion.

He reflected that he understood that he carried the burden of proof on the balance of probabilities that a dismissal had occurred.

The Complainant restated that he had tried hard to get back to work. He disputed that Mr OConnor had been at his home for two minutes duration and submitted that it was more like 30 seconds in duration. He accepted that he had not followed this up.

The Complainant concluded that he remained unsure whether he had been dismissed. He submitted that he had not applied for redundancy but was aware that the business had closed. He had not contacted Revenue regarding his status there.

The Respondent operated a bar business until it ceased trading on 2 April 2023. There was one redundancy at the business.

The Respondent has been strident and consistent in submitting that the complainant was not dismissed and the claim as lodged is disputed.

Summary of the Respondent evidence, under oath.

The Respondent gave evidence that he was intent on re-establishing the complainant into his position in the aftermath of covid and the complainant’s own illness.

He agreed that he would resume on one day per week pattern, while the rosters were to be sorted.

The complainant then departed on holidays to Portugal and said that he would resume work on his return.

The Respondent submitted that the complainant’s job was available to him, but he did not resume work. He gave evidence that the complainant had frequently told him that he intended to retire at 50, but he did not expect to be the funder of that retirement.

The Respondent formed the view that the complainant did not wish to return to work.

In his evidence, the respondent denied forgetting about the complainant and pointed to the phone and what’s app exhibits as a proof of the party’s engagement. He had not retained a record of these conversations, neither did he had a clear recollection on the content of the calls.

Mr O Connor gave a cogent account of having been advised by his bookkeeper to engage with the complainant on offering him a return to work on a 3-day basis. He told the hearing that he visited the complainant’s home and made the offer. He was unable to place a dateline on that discussion.

The Complainant responded in seeking a pay rise to €120 per shift.

Mr OConnor said that he was at the house for 2 minutes and he just left. He said that the complainant responded “You will be hearing from me or my Solicitor “

No follow up conversation occurred prior to the WRC referral.

I asked Mr OConnor if the complainant was still being returned for revenue purposes? The respondent replied that he presumed he was but did not agree to furnish the records he called on.

The Respondent submitted that the one-day return on March 22, 2022, was prompted by the complainant himself to gauge “if I am able? “

The Respondent accepted that he had received sick notes for the complainant but was intent on “putting a roster together “which would incorporate the complainants return to the business.

The Respondent was unsure if the complainant received pay slips.

During cross examination on the conversation attributed to the home setting, Mr OConnor disagreed with the complainant’s clarification of what was said as “will I need a Solicitor? “

Mr OConnor re-affirmed that he informed the complainant that the three days were available but was put off by the complainants attempt to place a pay rise as contingent to his return to work.

Mr OConnor confirmed that the pay for one day’s work in March 2022 remained in the safe on the pub premises in cash.

Mr O Connor confirmed as the employment relationship had been based on friendship that neither a contract nor pays slips had followed.

Mr OConnor confirmed that he had not referred the complainant for an occupational health opinion. He had not received a certificate of fitness to return to work.

In his concluding remarks, the Respondent stated that he just wanted this case to end. He declared once more that the complainant had not been dismissed and he contended that as the respondent.

 “He had been stabbed in the back “

I have been requested to make a decision in this case on whether the Complainant was unfairly dismissed in accordance with section 6 of the Act.

In arriving at my decision, I have explained to the parties that there are two strands to this case.

One: Preliminary Issue

Did a Dismissal as described in Section 1 of the Act occur?

“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

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose.

Two: Substantive case

If a dismissal occurred, was it unfair in accordance with section 6 of the Act?

Unfair dismissal.

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

I explained to the parties the relevance of the two strands and that if the Preliminary Issue went in the complainant’s favour; I would proceed for decision purposes to the second strand.

If I found for the Respondent on the preliminary point, then I would draw a line at that decision and both parties would then retain their respective right of appeal to the Labour Court.

I explained that I felt it important that I heard both the preliminary and substantive case today. I have reflected on both parties’ oral presentations.

Did a Dismissal occur?

In this case, I found that both parties benefitted from ventilating their recollection of events. For the complainant he approached the case certain that he had been wronged, overlooked and eclipsed from his employment through illness. It is regrettable that he did not maintain a diary of events to place his recollections on certain datelines to help me with the facts relied on.

I also understand that he has been reflecting on all that went wrong for him in the job.

I understand fully that he travelled a very difficult road in illness, and he has now emerged to focus on what happened his job?

I also note that he has been in receipt of sick pay rather than job seekers benefit as a job seeker normally presents at WRC.

I found that the Respondent did not manage the complainants sick leave very well. This was very obvious surrounding the circumstances of the complainant seeking to return to work from March 2022 onwards. He had a duty of care to lead a dignified return to work for the complainant, if possible and fell far short of that.

However, I accept the Respondent evidence that he acted on his bookkeeper’s advice and visited the complainant at his home to formalise a return to work, only to be met with a pay claim and a stated intention to instruct a Solicitor in the case. It would have helped me enormously if I could have dated that intervention.

It seems to me that the Complainant became very upset after that and proceeded on medically advised sick leave and ultimately drifted not back to the workplace, but to the WRC and without representation.

I am drawn to his early contact with the WRC where he was clearly considering if he had a cause of action against his employer and settled on a claim for unfair dismissal, leaving the other deliberations to one side.

I must now examine the facts resting before me to decide on the Preliminary Issue, whether a dismissal occurred?

A dismissal in its most pure form ends an employment relationship. It is a termination led by either an employer or an employee or as dictated by contractual terms (fixed term) It is Goodbye.

This was an employment bereft of documentation and built on familiarity and friendship. The latter duo does not traditionally make for strong foundations in employment relationships and that is why the Law determines in the Terms of Employment (Information) Act ,1994 that a statutory record of employment should prevail.

The Payment of Wages Act 1991, provides that pay slips should issue to employees. Once more, there was a vacuum in this matter in the instant case.

This business ceased to trade in April 2023, making one statutory redundancy and without contacting the complainant, whom they acknowledged was “still on the books “for Revenue purposes.

I asked for the document that reflected that interpretation but was refused by the Respondent.

I have had cause to reflect on the evidence of the complainant where he submitted that he had been dismissed.

However, he could not put a recollection of words spoken at any time or any documentation received which captured the tenets of a dismissal before me.

Instead, he said that he believed that his return to work was obstructed both before and after his one day back on March 22, 2022.

However, whatever amount of “foot dragging “by the respondent occurred and there was some, the situation crystallised into a firm offer to the complainant to return to work, when the home visit occurred.

While the parties are not at one with the duration of the visit, both accept that it occurred.

I accept the respondent evidence that he offered a return to work to the complainant but retreated at the mention of it being contingent on a salary increase. He ought to have revisited this.

I found that the complainant misjudged the value of this visit to stabilise the employment relationship when he placed a “spanner “in the works by linking a pay increase to his return.

He took some time to recover from this short interaction and did not contact the respondent again before approaching the WRC in July 2022.

In assessing the respondent evidence, I could not establish that he uttered words that could safely be interpreted as a dismissal. He did not issue documentation that equated with a dismissal.

There was no contract in the case, so consideration of a cessation of a fixed term contract is not applicable.

In fact, his final words in the inter party discussions surrounded an offer to return to work. While the respondent’s management of the complainant’s sick leave was careless when the complainant decided he wished to return. There was no dismissal.

That is what I am left with.

Once more, it may have assisted the parties greatly if they had communicated in meetings or through correspondence rather than through what’s apps. I say this as both parties exhibited a very strong view that their respective views were correct.

It would also have helped if the complainant had obtained a final cert which signified his fitness to return to work in February 2022.

Having considered all that I have, I must conclude that the complainant was not dismissed in this case and therefore I am prevented from considering his claim for unfair dismissal through to the substantive case.

The employment relationship is still live in my opinion and the parties should engage on the impact of the cessation of trading in April 2023, if any on that relationship.

I did address the missing payment for March 22, 2022, at hearing, but would remind the parties to resolve this.

I find for the Respondent in the Preliminary Issue; the complainant has not satisfied the burden of proof that he was 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 have not established that a dismissal occurred in this case. I am prevented, as a result in taking the matter to the substantive case.

The Complainant was not dismissed; therefore, he was not unfairly dismissed.

Disputed Dismissal