Complainant

Respondent

Parties

Joseph  Tucker

Fish Moyne Drain Services Ltd

Representatives

Limerick Council of Trade Unions

 Peninsula Business Services Ireland

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-00056788-001

22/05/2023

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

CA-00056788-002

25/05/2023

The complainant was employed from 20 May 2019 until 3 May 2023. The Complainant alleges that he was summarily dismissed on 3 May 2023 without notice. The Respondent submits that the Complainant resigned and is not entitled to notice.

Oral Evidence of the Complainant (under oath)

The Complainant outlined that on 3 May 2023 he was on site in Tipperary doing a drainage job. He was accompanied by a work colleague, Mr Q. The Complainant and Mr Q each drove a company owned vehicle to the site where the work was to be performed. The Complainant was permitted to use the company van to get to and home from work. The Complainant had to leave the back doors of his work van open for the drainage pipe to exit. There was tools in the van. The Complainant could not leave the vehicle unaccompanied for health and safety reasons as there was children playing in the area. Further, he was concerned for the security of the tools in the van. Accordingly, his colleague Mr Q completed the drainage work while the Complainant remained with the work van for the duration of the job. This drainage job was completed by mid-day and Mr Q rang Mr Lowry to let him know the job was complete.

The Complainant submitted that he then received four phone calls from Mr Lowry, the first of which was received at mid-day. During this call the Complainant submits that he was summarily dismissed when Mr Lowry told him: “Get the f****** vans back to the yard. Get the f*** out of my business. I don’t care how you get home. I’m done with the two of you”. The Complainant understood that the reason why Mr Lowry was irate on the call was because neither Mr Q nor the Complainant had taken photographs of the work as had been requested by Mr Lowry. The Complainant did not respond to Mr Lowry on the phone. The Complainant understood from this call that both he and Mr Q had been dismissed. As the Complainant had no means of getting home to Limerick, he drove the work van.

On his way to Limerick, Mr Lowry rang the Complainant a second time at 13:03pm and asked the Complainant where he was, to which the Complainant said: “I am on my way home”. Mr Lowry replied: “get that f****** van back here”. The Complainant responded that he had no way of getting home, to which Mr Lowry said: “I don’t care”. The Complainant described to the hearing a third call from Mr Lowry which followed at 13:04pm. The contents of this call where relayed to the hearing, which included name calling and a threat to the Complainant’s life. The Complainant submitted that a fourth call was made by Mr Lowry to him at 13:09pm, during which Mr Lowry repeated similar threats. During this call Mr Lowry told the Complainant to get the van back to the yard and that Ms Doyle wanted to speak with the Complainant. The Complainant did not return to the yard to speak with Ms Doyle as requested by Mr Lowry. The Complainant stated that he could not return to the yard as Mr Lowry had threatened his life.

The Complainant submitted that he then received a call from Ms Doyle as he drove into Limerick. Ms Doyle asked the Complainant had he a safe pass. She denied having spoken to Mr Lowry. Ms Doyle stated to the Complainant that he should have taken photos of the job earlier that morning. The Complainant stated in reply that Ms Doyle must have been speaking to Mr Lowry if she knew that neither he or Mr Q had taken the photos. Ms Doyle acknowledged that she had spoken to Mr Lowry. The Complainant submitted that he told Ms Doyle that he would never work for the company again. Ms Doyle rang the Complainant again later that day to tell the Complainant that he still had a job with the company. The Complainant told Ms Doyle that he could no longer work for the company as he “took it from Mr Lowry’s call that I was dismissed there and then”. Later that day he received an email from Ms Doyle in which she said that the Complainant had made a hasty decision to resign and that he should reconsider and use the grievance procedure. The Complainant submitted to the hearing that Ms Doyle was incorrect: he had not resigned but rather had been summarily dismissed over the phone by Mr Lowry earlier that day.  

The Complainant submitted that he received several emails and letters from Ms Doyle thereafter in which Ms Doyle stated the Complainant was not following the grievance procedure. The Complainant told the hearing that he did not know why Ms Doyle was saying he did not follow procedures when the company themselves had not done so in summarily dismissing him on 3 May 2023.

The Complainant submitted that he left the van in Limerick to be collected by the Respondent as he understood that he was no longer insured to drive it as he had been dismissed.

The Complainant stated that his preferred redress was compensation as he “couldn’t work for that employer again”.

In cross-examination the Complainant was asked if Mr Lowry had contacted him on 2 May regarding the requirements of the job to be completed on 3 May to which the Complainant confirmed that Mr Lowry had contacted him on 2 May. The Complainant confirmed that he could have been late arriving on the job and that he had not completed a job card or taken photos as required. The Complainant denied that he only received two calls from Mr Lowry. The Complainant denied that Mr Lowry had not mentioned the words ‘dismissal’ or words to that effect. The Complainant was asked why he would take the company vehicle home if he had been dismissed, to which he replied that he had no other way of getting from Tipperary to Limerick. The Complainant was asked how was it that Mr Q continued to work for the Company if both had been dismissed as alleged by the Complainant. The Complainant responded that he understood Mr Q finished working for the company the following Friday. The Complainant was asked to comment on the email from Ms Doyle in which she had stated the Complainant had hastily resigned and that he should engage with the Respondent. The Complainant reiterated that he did not resign but was summarily dismissed and that Mr Lowry realised that he had “made a big blunder and was trying to back track” by referring to the Complainant’s hasty resignation, when he had not resigned. The Complainant submitted that he did not respond to any of the Respondent’s letters affirming he was still an employee and the requests of the Respondent to engage in the grievance process because this was all an effort to cover up the fact that Mr Lowry had dismissed him over the phone on 3 May 2023. It was put to the Complainant that a book on the Redundancy Payments legislation was found with his personal belongings in the van and that he had been considering a way out of the company for some time. The Complainant denied that the book was his property. The Complainant confirmed that he had secured alternative employment on 16 June 2023. The Complainant submitted that he had made 6 calls in an effort to secure new employment. It was put to the Complainant that this was an insufficient effort to mitigate his loss.

Evidence of Mr Lowry (under affirmation)

Mr Lowry is the Managing Director and Operations Manager. The Company provides drain cleaning, plumbing, heating, and related services to large reputable businesses in Ireland. Mr Lowry stated that he hired the Complainant several years earlier but within months of the commencement of his employment issues arose and that the Complainant liked to do things his way.

Mr Lowry outlined that the expectation is that the Complainant would take before, during and after pictures of the work completed and write a work report as this was expected by clients. Mr Lowry submitted that he contacted the Complainant on 2 May and outlined the work to be completed at the site in Tipperary the following day. The Complainant was told to be there for 9am, however, he did not report onsite until 9.30am or 9.45am. Mr Lowry rang the Complainant early on the morning of 3 May 2023 to see where he was, to which the Complainant responded that “ah I’ll be there in a minute, don’t be worrying about them”. Mr Lowry submitted that he told the Complainant that he needed to be onsite and complete the work as he was the senior plumber on the job and that Mr Q was inexperienced.

Mr Lowry submitted that he contacted the complainant around noon to check how the job was going. The Complainant said they were finished the job. Mr Lowry asked did he take pictures and complete a report to which the Complainant responded: “I couldn’t be arsed”.  Mr Lowry submitted that he used bad language in response to the Complainant’s answer. He asked the Complainant to come back to the office and complete “some kind of a report” with Ms Doyle as the client would be looking for a report. Mr Lowry submitted that he made no further calls to the Complainant that day. Mr Lowry submitted that he told Ms Doyle that the Complainant would be back to the office within the next hour or so to complete a report. However, when there was no sign of the Complainant returning, a tracker on the vehicle showed that the Complainant was heading for Limerick and not returning to the office as instructed.

In cross-examination, Mr Lowry said he did not dismiss the Complainant or say words to that effect. He added that it was very difficult to source experienced plumbers and that he did not want to dismiss the Complainant. Mr Lowry denied that he told the Complainant that ‘he was done’ with him. Mr Lowry denied that he made more than two calls to the Complainant on 3 May 2023.

Evidence of Ms Doyle (under affirmation)

Ms Doyle is the Office Administrator and looks after accounts, payroll, HR, and health and safety.

On 3 May 2023 Ms Doyle was going through health and safety files and noted that the Complainant’s safe pass was not on file. She made several calls to the Complainant in respect of same, but these calls were unanswered. Mr Lowry came into Ms Doyle’s office then around noon to say the Complainant would be coming into the office shortly to complete a report in relation to the job he had just completed. Ms Doyle submitted that she rang the Complainant to tell him to bring the safe pass with him. During this call the Complainant told Ms Doyle that Mr Lowry and he had an argument over the phone, and he was on his way home as he was done with the Company. Ms Doyle asked the Complainant to come into the office to discuss what had happened, but he refused. An email dated 3 May 2023 from Ms Doyle to the Complainant was opened at the hearing in which Ms Doyle asked the Complainant to reconsider his resignation. Ms Doyle followed up on this communication in writing on 8 and 12 May 2023. The Complainant responded to one of Ms Doyle’s emails to say he did not resign but was dismissed and that he would be going to the WRC. Several letters were opened to the hearing which had been sent to the Complainant thereafter. Ms Doyle submitted that the purpose of these letters was to advise the Complainant that he was still an employee on unauthorised absence and to engage with the Respondent. The Respondent did not receive a response to these letters.

In cross-examination Ms Doyle confirmed she assumed the Redundancy Booklet was the Complainant’s as it was with his personal belongings. Ms Doyle denied that the Complainant told her he was sacked by Mr Lowry, and stated he said “I’m sick of this s***. I’m done.” Ms Lowry added “that’s not the first time we heard that from Joe”. The Representative for the Complainant put it to Ms Doyle that the truth was Mr Lowry told the Complainant he was dismissed and that all Ms Doyle’s efforts thereafter were done to fix Mr Lowry’s blunder. Ms Doyle denied this and added that she worked hard to manage difficult employees and to have the correct HR processes and advice in place. Ms Doyle confirmed that she did not have a letter of resignation from the Complainant. Ms Doyle denied the Complainant was dismissed on 3 May 2023.

Legal Submission

The Representative for the Respondent made a legal submission on several matters including that the burden of proof rests on a Complainant where dismissal is in dispute. The Respondent’s legal submission directed the hearing to several cases including Longford Co Council v Joseph McManus (UDD1753) and Devaney v DNT Distribution Company Ltd, UD 412/1993.

CA-00056788-001

The fact of dismissal is in dispute in this case.

Law

Before an employee can obtain redress under the Unfair Dismissal Act 1977 (“the 1977 Act”) there must have been a dismissal. The Labour Court in Parkboro Developments Ltd T/a Park Engineeringv Mariusz Witkowski (UDD2338) noted:

“There can be no absolute rules about [sic] is, or is not, a dismissal and to a very large extent each case in which this point is argued requires to be determined on its own facts.”

The Labour Court added:

“A sharp exchange of words in a workplace does not usually provide a basis for the sundering of an employment relationship”.

Generallya person is dismissed when the employer informs the employee clearly and explicitly that the contract is at an end or if the circumstances leave no doubt that dismissal was intended or may reasonably be inferred as having been intended [Redmond on Dismissal Law (3rd ed., Bloomsbury Professional 2017) at 22.13].  It is not necessary that the word “dismissal” is used. Where ambiguous words are used, an objective test should be deployed to decide what was intended by the speaker (Devaney v DNT Distribution Company Ltd, UD 412/1993).

In Delaney the EAT stated:

“... 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.”

The EAT concluded having regard to the relationship that existed between the parties that as the director “. . .  often expressed his feelings in very strong language”, that the words used by him “. . . in an angry mood, did not amount to a dismissal and were never intended as such”.

In Parkboro Developments the Labour Court stated that where dismissal was not intended, it is up to an employer “. . . to take immediate and comprehensive steps to assure the Complainant otherwise”.

Findings

It is common case that Mr Lowry phoned the Complainant around noon on 3 May 2023 and became irate when the Complainant confirmed that he had not taken photos of the work completed despite being instructed to do so. There is a conflict in evidence as to what was said by Mr Lowry on that call. It was submitted by the Complainant that the words spoken by Mr Lowry constituted a dismissal of the Complainant from his employment. Mr Lowry accepted that inappropriate language was used by him on this call, but that this was in response to the Complainant’s indifference to not having taken photos. It is Mr Lowry’s submission that he did not dismiss the Complainant, nor did he use any words to that effect, and that he had no intention of dismissing the Complainant. Rather, according to Mr Lowry, he instructed the Complainant to return to the yard and complete a report with Ms Doyle.

There is also a conflict in evidence in relation to the number of calls made by Mr Lowry to the Complainant. Mr Lowry submitted he made two calls, the first of which was around 9.30am to ascertain the whereabouts of the Complainant and a second call around noon on 3 May 2023. It was submitted in oral evidence by the Complainant that Mr Lowry made four calls to him that day, at the following times: 12:12pm (“the noon call”): 13.03pm; 13.04pm and 13:09pm. It was submitted by the Complainant that during the latter three calls, Mr Lowry verbally abused him and threatened his life. This was denied by Mr Lowry, who submitted that no further calls were made by him after the noon call.

Where dismissal is in dispute, the initial burden rests with the Complainant to establish facts from which an Adjudication Officer can determine that a dismissal has occurred. I find that the Complainant has not discharged that burden. I am satisfied that the Complainant resigned from his employment on 3 May 2023 for the reasons set out below.

The supplementary information requested by me of the Complainant at the hearing (i.e., the screenshots of the times Mr Lowry called the Complainant’s phone) do not corroborate the Complainant’s submission that Mr Lowry and the Complainant spoke after the noon call. I prefer the evidence of Mr Lowry that only two conversations took place between Mr Lowry and the Complainant on 3 May 2023: the first of which was around 9.30am to establish the whereabouts of the Complainant, and the second and final conversation was around noon. I find that this is significant, not only in terms of the credibility of the Complainant’s evidence, but also it confines the question of the disputed dismissal to the noon call.

During the noon call the Complainant submitted that Mr Lowry said “get the f*** out of my business. . . I’m done with the two of you”. Mr Lowry denies speaking these words but acknowledged that he used inappropriate language in response to the Complainant’s indifference to not having taken photos of the work completed. If Mr Lowry said those words as is submitted by the Complainant, I find that a reasonable employee would have understood that the use of those words was due to Mr Lowry’s frustration and anger and not by way of dismissal, and that Mr Lowry had no intention of dismissing the Complainant at that time. It is common case that Ms Doyle reassured the Complainant on 3 May 2023 and several times subsequently that he remained an employee and that no dismissal had taken place. I am satisfied that the Respondent took immediate and comprehensive steps to reassure the Complainant that he remained an employee.I find it was unreasonable for the Complainant not to engage with the Respondent in this regard. The Complainant could have remained in the employment of Respondent, but the Complainant had no intention of doing so.

I accept the Respondent’s submission that the Complainant resigned from his employment on 3 May 2023. I prefer the evidence of Ms Doyle that the Complainant told her, that following an argument with Mr Lowry over the failure to take photos, he was on his way home as he was “done”with the company. In his oral testimony the Complainant gave evidence that he told Ms Doyle that he would never work for the company again. If he had been dismissed as he submits, why would the Complainant feel the need to say he would never work for the company again? I am satisfied that it was reasonable for Ms Doyle to conclude, based on the words used by the Complainant, that the Complainant had resigned ‘in the heat of the moment’ and, that accordingly it was reasonable for her to act on that resignation in the way she did (i.e., asking the Complainant to rescind his notice and utilise the grievance procedure). I do not accept the submission of the Complainant that he did not resign, and that Ms Doyle’s course of action thereafter was done to cover a ‘blunder’ by Mr Lowry. Rather I am satisfied that Ms Doyle’s course of action was done in a genuine attempt to encourage the Complainant to reconsider his resignation.

CA-00056788-002

I have found that the Complainant resigned from his employment. Therefore the complaint under the Minimum Notice & Terms of Employment Act 1973 is not well-founded.

CA-00056788-001

I decide the complaint under the Unfair Dismissal Act 1977 is not well-founded.

CA-00056788-002

I decide the complaint under the Minimum Notice & Terms of Employment Act 1973 is not well-founded.

Dismissal in dispute. Minimum notice.