UDD2449

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00043857 (CA-00054124-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 20 October 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 04 December 2024.

The following is the Decision of the Court:

DECISION:

This is an appeal by Olajubu Obasanjo of a decision of an Adjudicator Officer (ADJ-00043857, Ca-0005444124-001, dated 10 October 2023 made under the Unfair Dismissals Act 1977 (“the Act”) in relation to a complaint against his former employer, Wasdell Europe Limited. The Adjudication Officer did not uphold the complaint at first instance.

The parties in this decision are named as they were at first instance, hence Wasdell Europe Limitedis referred to as “the Respondent” and Olajubu Obasanjo as ”the Complainant”.

Background

The Respondent operates a facility which carries out specialist pharmaceutical services, including the testing of drugs, primary and secondary packaging production, and the distribution of drugs to European and international markets. The Complainant worked as Production Operative on shift work.

Preliminary Matter

A preliminary matter was raised with the Court addressing its jurisdiction to hear the appeal.

The parties dispute the date of termination of the Complainant’s employment. The Complainant commenced employment as a Production Operative on 30 August 2021. The Respondent contends that the Complainant was dismissed on 5 July 2022 and does not have the requisite one years’ service to progress an appeal under the Act. As a result, Counsel for the Respondent, submits that the Court has no jurisdiction to hear the appeal.

The Complainant contends that his employment was terminated when he returned to the workplace from sick leave in September 2022, at which point he had accrued over one years’ service. As a result, Counsel for the Complainant submits that there is no jurisdictional impediment to the Court hearing the appeal.

Preliminary Matter - Position of the Complainant

The Complainant was summarily dismissed on the 13 September 2022 without cause.

The Complainant sustained injuries in a road traffic accident on or about the 11 June 2022. He informed his supervisor, through Facebook Messenger, of the accident and his injuries on the evening of the 12 June 2022. His supervisor replied on the same day to say  "Ok thanks for letting me know, get well." 

The Complainant returned to work on 1 July 2022 and, on his supervisor’s instruction, provided sick certificates accounting for his absences to reception. On 8 July 2022, he was unable to return to work and informed his supervisor through Facebook Messenger “…sorry I couldnt make it to work today, my back is literally getting worse and I would be needing more time for recovery. Thanks”.

The Complainant was certified unfit to attend work between 8 July and 2 September 2022. Sick certificates for this period were handed into reception on his return to work on 2 September 2022.

The Complainant worked his normal shift on the 2, 3, 4, 5, 6, and the 9, 10, 11 and 12 September 2022. He entered work and clocked in as normal during this period, although he forgot his clock-in device on 4 September 2022 and the clock-in device did not work on 6 September 2022. The Complainant engaged with his supervisor and employees of the Respondent as normal on these days.

On 13 September 2022, the Complainant’s clock-in device did not work. The receptionist allowed him to access the building. When he arrived on the Production Line, he was informed by the General Manager "to go home, you are supposed you be fired."

On 15 September 2022, he received a letter dated 13 September 2022 which stated that he had been informed on 5 July 2022 that his employment was terminated.  The letter was signed by Alan Todd, Production Manager.

The Complainint was never informed by Mr Todd on 5 July 2022 that his employment was terminated. Mr Todd told him on that date to stay home until he was fit to work. The first the Complainant was informed of his dismissal was by way of the letter dated 13 September 2022.  He did not receive a termination letter dated 5 July 2022 until it was enclosed with the letter dated 13 September 2022. The Complainant was paid €1,282.43 on 16 September 2022.

The Respondent’s behaviour in dismissing the Complainant was disproportionate and unreasonable and as such amounted to a breach of the 1977 Act being an unfair dismissal. The Respondent failed to have regard to fair procedures. The Respondent did not act as a prudent and concerned employer and that the decision to dismiss was unreasonable 'having regard to all the circumstances'.

Preliminary Matter – Position of the Respondent

The Complainant’s employment was terminated on 5 July 2022 (or 12 July 2022 at the latest taking into account the Complainant’s one week notice period). As he had less than one years’ service the Labour Court does not have jurisdiction to hear the complaint under the Act.

On 18 April 2022, the Complainant was sent home from work when he refused to take his sunglasses off while working on site. He was invited to a disciplinary hearing. It was ultimately decided that, as the sunglasses were prescription glasses, he would be permitted to wear them on the production line.

On 4 July 2022, the Complainant attended a disciplinary meeting where several issues were raised with him about his regular lateness, his attitude towards his work, and his absences from work.

On 5 July 2022, the Complainant was informed by telephone that his employment was terminated with immediate effect. A dismissal letter dated 5 July 2022 was read out to the Complainant by Alan Todd, Production Manager. When Mr. Todd was about three quarters of the way through this letter, the Complainant hung up before Mr. Todd had finished speaking to him.

The first line of the letter dated 5 July 2022 states “I write further to our discussion earlier today where you were informed of the decision to terminate your employment with immediate effect”. Most of the letter was read out to the Complainant by Mr. Todd. The Complainant was informed that his performance had consistently failed to meet the standards required and that his continued periods of absence and timekeeping issues were unacceptable. The letter confirmed that the Complainant was being dismissed with immediate effect from 5 July 2022.

Following the telephone call, Mr Todd emailed the external HR consultancy firm (Hicks Watson) confirming that he had advised the Complainant of the decision to terminate his employment, and that the Complainant had hung up the phone. The Complainant’s security fob, used to access the Respondent’s site, was deactivated on 5 July 2022. The Complainant was paid in lieu of his unused annual leave as his employment was terminated.

Owing to an administrative error the letter dated 5 July 2022 was not issued to the Complainant.

On 8 July 2022, the Complainant sent a Facebook message to his supervisor, Mr. Guzaitis, which stated “…sorry I couldn’t make it to work today, my back is literally getting worse and I would be needing more time for recovery”. Mr. Guzaitis did not reply as the Complainant’s employment had been terminated.

In early September 2022, the Complainant was let onto the site by other employees who were unaware that he was dismissed. The Complainant worked on the production line for two weekends although he did not “clock-in” and was not rostered to work. Both Mr. Todd and Mr. Guzaitis were on leave during that time. The Complainant’s “clock-in” record shows his last clock-in date was 4 July 2022.

By letter dated 13 September 2022 Mr. Todd confirmed to the Complainant that they had spoken on 5 July 2022, and he had expressly informed the Complainant that his employment was terminated with immediate effect. In that letter dated he stated, "my phone call, the letter dated 5 July 2022, and the fact that you have not attended work since 5 July 2022 [are] all evidence that you were fully aware that you are no longer an employee of the Company".

The Complainant was unambiguously informed by Mr. Todd that his employment had been terminated on 5 July 2022. That fact which was plainly understood by the Complainant as he did not return to the site for a period of approximately two months when, coincidentally, the two employees who were fully aware of his dismissal, Mr. Todd and Mr. Guzaitis, were away on leave. He returned to site in full knowledge that he had been dismissed and that he did not have proper authority to be on site.

He did not comply with his contractual requirements regarding the provision of medical certificates during that period. The gaps in the periods during which the Complainant was certified as unfit to attend work, and the delay in his return to the site, is indicative of the fact that the Complainant was fully aware he had been dismissed on 5 July 2022.

The Complainant erroneously refers to 13 September 2022 as the date of his dismissal. That is the last day he was on site. He was informed that his employment had terminated on 5 July 2022, and that he should not have been allowed access to the Respondent’s premises in the preceding weeks. The Respondent acknowledges that the Complainant was paid in respect of the shifts he worked in early September 2022. That decision was made on a discretionary and a goodwill basis.  It is submitted that no mutuality of obligation exists in circumstances where the Complainant had been dismissed and returned to work without any proper authority to do so.

The Complainant had less than one year’s continuous service with the Respondent. In these circumstances, even when the Complainant’s notice period of one week is taken into account, the Complainant does not have one year’s continuous service and accordingly, falls within the exclusion set out under section 2(1)(a) of the UD Acts.

The Respondent referred to following caselaw in support of its position:  UK Court of Appeal in Savage v J Sainsbury [1980] IRLR 109 (Savage); An Employee v Employer UD2436/2011; A Payroll Administrator v An Employer ADJ-00007881; Devaney v DNT Distribution Company Limited (UD412/1993).

Testimony of the Complainant

The Complainant was in a car accident on 12 June and suffered back and leg injuries. He messaged his manager Arturas Guzaitis on Facebook who replied to thank him for letting him know. He later submitted a sick certificate which covered the period from 14 June 2022 until 1 July 2022.

The Complainant returned to work on 2 July but was only able to work for one week because of the strain on his back. When he asked if he could work while sitting on a chair, the request was refused. His doctor signed him off work. On 5 July he received a phone call from Alan Todd which woke him up. Mr Todd told him to take time off until he was fit enough to come back to work. He messaged his supervisor on Facebook on 8 July to let him know that he needed more time for recovery. 

He returned to work in September and handed his medical certificates to the receptionist, as he had done previously. He clocked in as usual using his access card and was welcomed back to work on the line by colleagues. For two days he clocked in as normal. On the third day he did not have his card with him so notified his shift supervisor so he could manually record his hours. The next day there was an issue with his card, and his supervisor said that he would investigate it. On 12 September the receptionist sent an email query about why his fob had stopped working.

On 13 September 2022 he received a letter by email to say that he was fired. The letter referred to a letter dated 5 July 2022 which he had never received. He was not aware that he had been fired in July. He never received pay in lieu of notice.

Under cross examination, the Complainant accepted that disciplinary matters were raised with him in April but disputed that they related to his attendance or attitude. He said that he was spoken to about wearing prescription sunglasses on the production line. He was fired but then called back to work the following day. 

The Complainant refuted that the purpose of a meeting on 4 July was to discuss issues relating to his attendance, punctuality and attitude. He said the reason for that meeting was to discuss his need for a chair when working. He had no attendance issues before his car accident. He denied that Mr Todd told him at that meeting that he was to transfer back to dayshifts so that he could keep an eye on him. He accepted that he had previously requested to work night shifts. 

The Complainant denied that he hung up the phone during a phone call with Alan Todd on 5 July 2022 or that Mr Todd informed him that his employment had ended. He was not aware that he was fired on 5 July. If he had been fired, he would not have had access to the site in September when his fob worked. He did not accept that there were discrepancies in his evidence about when his fob stopped working. 

When asked why he messaged his manager on 8 July to say that he could not attend work that day, the Complainant said that he had thought he might be fit to return to work by then. He acknowledged that he never received a reply to that message.

The Complainant refuted that he received all outstanding holiday payments in his July payslip. He said that payment related to time off that he had requested after his accident.  He did not receive any further payslips until September 2022.

The Complainant said that he did not make any contact with the Respondent until September, as he did not see a need to do so. He was not paid any sick pay and was not familiar with the absence procedures. He was not told to provide sick certificates. He understood that he was required to provide them on his return to work. He could not recall when he obtained sick certificates from his doctor.

In reply to questions from the Court, the Complainant said that he never received any letter or documentation in relation to his lates, attendance or attitude. 

Testimony of Alan Todd – Production Manager

The Complainant struggled with working the 3-cycle shift from Monday to Friday and requested a move to the weekend shift. There were no performance problems initially, but after a while there were issues with lates and his attitude. Those issues were raised with him verbally. In April, there was an incident when the Complainant was asked to remove his sunglasses, and he refused. He was sent home, but not suspended. 

On 4 July 2022 they had a meeting to discuss his work ethic, attitude and attendance. The Complainant refused to return to work the 3-cycle shift rotation where Mr Todd could keep an eye on him. After the meeting Mr Todd discussed the matter with HR (Hicks Watson) and they decided to let the Complainant go as he did not have one years’ service.

On 5 July he phoned the Complainant and read out a letter prepared by HR. The Complainant hung up when he told him that he was dismissing him, which was about three-quarters of the way through the letter. There was no conversation about his car accident and/or taking time off. He could not tell someone to take time off indefinitely.

After the call, he was supposed to post the letter, and that error was on him. He did notify HR and IT.  Mr Todd referred the Court to a document with the Complainant’s clocking-in history, which stated that he was dismissed on 5 July and paid two days holidays.

When Mr Todd returned from annual leave on 13 September 2022 he was shocked to find the Complainant on site. He told him to leave and informed the general manager. He sent a second letter to the Complainant enclosing the letter of 5 July 2022. The Complainant did not return to work thereafter. The Complainant was paid for the work that he did in September, as it was unfair not ask him to work for nothing.

Under cross examination, Mr Todd refuted that procedures were not followed in relation to the Complainant’s dismissal. He accepted there were no documents before the Court about any performance issues in April. He accepted that the glasses worn by the Complainant were prescription glasses.

Mr Todd refuted that he told the Complainant on 5 July to stay out of work until he was better, as he had to replace him on the production line. When asked why the termination letter states, “I write further to our conversation earlier today where you were informed of the decision to terminate your employment with immediate effect”, Mr Todd said that he did not follow the script fully. When asked why he had wished the Complainant well in the phone call, Mr Todd said that he did not follow the script exactly. He denied that was fundamentally mistaken about the telephone conversation on 5 July or that he was changing his evidence.

Mr Todd did not make a note of the conversation, as he was accompanied by the general manger during call. He accepted that no letter was sent to the Complainant on 5 July 2022 by mistake. Mr Todd said that he was unaware of the Facebook message sent by the Complainant to his supervisor on 8 July 2022.

He accepted that the Complainant was mistakenly allowed back on site to work in September. When asked why the termination letter says, “sent by email”, Mr Todd said that was an error and that he had not emailed that correspondence to the Complainant.

Mr Todd said that in his view it was more than a coincidence that the Complainant returned to work on site when he and the supervisor were on annual leave.  When asked how security measures were so poor that the Complainant gained access to the site if dismissed, Mr Todd said that he could only speculate that the Complainant had friends on site who let him in, as it was not evident from CCTV footage. The Complainant had not clocked in.

Mr Todd confirmed that the Complainant worked ten shifts in September and was paid for that work.  When asked how the allegation that the Complainant was an illegal trespasser aligned with paying him, Mr Todd said that it was only fair to pay him for the shifts he worked. He disagreed that paying the complainant for work undertaken suggested that there was a live contract between the parties.

In reply to questions from the Court, Mr Todd said that he followed the instructions from HR when dismissing the Complainant. He was 100% sure that the Complainant knew that he was dismissed, as the Complainant slammed the phone down. He could not say at what point during the conversation that he wished Complainant well. He had signed the termination letter dated 5 July, but did not post it and had kept it in his office. No investigation was conducted into the security breach in September.

Relevant law

The Act at Section 1 in relevant part provides as follows:

“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,

The Act at Section 2 in relevant part provides as follows:

2. (1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him,

Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows:

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.

…

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Deliberation

Preliminary Issue

In this case, the date of dismissal is disputed so the Court must first determine if the Complainant had the requisite one year’s continuous service with the Respondent to make a complaint under the Act.

The Complainant asserts that he was unfairly dismissed from his employment by letter dated 13 September 2022 after returning to work from a period of sick leave. That assertion is vehemently rejected by the Respondent who contends that the Complainant was dismissed on 5 July 2022 during a phone call with Alan Todd, and at that point when the dismissal came into effect, he had not accrued sufficient service to avail of the protections available under the Unfair Dismissals Act.

This case turns on whether there was a summary dismissal during the telephone conversation of 5 July 2022. If there was, then the Complainant’s employment terminated on that date, and he does not have the requisite service to progress a complaint under the Act. If there was no summary dismissal on 5 July 2022 then the employment relationship continued after that date.

This is not a case where it is claimed that there was some sort of misunderstanding or ambiguity around the words used during the phone call. The Court was presented with two totally different narratives about the telephone conversation on 5 July 2022.

The evidence before the Court was that the subject matter of the conversation was completely different, depending on who’s account is to be believed. The Complainant says the discussion was his fitness to work considering the injuries he suffered in a car accident, with the result that Mr Todd directed him to remain off work until he regained fitness. Mr Todd’s evidence was that the purpose of the phone call was to inform the Complainant that he was dismissed and that he could not tell someone to take time off indefinitely.

The Complainant points to the fact that he returned to work on site for ten shifts in September and was paid for that work to support his contention that he remained in continuous employment with the Respondent. His evidence was that he was never told that he was fired, he never received a dismissal letter following the phone call of 5 July 2022 and he was allowed access to the workplace using his fob when he returned to work.

The Respondent asserts that the Complainant’s security fob was deactivated on 5 July 2022, and that his last clock in date recorded was 4 July 2022. The Respondent further points to email correspondence to HR and IT to corroborate Mr Todd’s evidence that the Complainant’s employment ended on 5 July 2022. The Respondent called into question the validity of medical certificates submitted by the Complainant and attached much weight to his return to the workplace while Mr. Todd and Mr. Guzaitis were on leave.

The Court having carefully considered evidence before it is of the opinion that the Respondent cannot rely on the telephone conversation between Mr Todd and the Complainant on 5 July 2022 to assert that the Complainant was summarily dismissed on that date.

The Court was faced with a direct conflict about what was said during that conversation and found both witnesses to be vague and at times inconsistent in their evidence. The Court further notes that the meeting note dated 4 July 2022 makes no reference to the possible termination of the Complainant’s employment the following day, Mr Todd did not finish reading out the letter of termination dated 5 September to the Complainant and that letter was never sent to the Complainant. It is accepted that the Complainant had access to the site and worked ten shifts in September 2022, however, no adequate explanation was provided to the Court to explain how the Complainant accessed the site without authorisation and worked for two weeks unimpeded.

The term “dismissal” under the Act means the termination by the employer of the employee’s contract of employment with the employer.

At section 22.13 of “Redmond on Dismissal Law,” by Desmond Ryan, (3rd edition, Bloomsbury 2017), the general understanding of dismissal is described as follows:

“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.”

In the view of the Court, where there is ambiguity or a dispute about the fact of dismissal, it falls to the employer to establish that the employee was informed clearly and unambiguously that the contract of employment had come to an end. In this case, the Respondent seeks to rely upon the phone call of 5 July 2022 to assert that the employment relationship terminated on that date.  On balance, the Court finds that it was presented with insufficient evidence that a dismissal was communicated and effected during the telephone conversation on 5 July 2022. It follows that the Complainant continued in the employment of the Respondent after that date.

It is accepted that the termination of the Complainant’s employment was subsequently confirmed by letter dated 13 September 2022.

Finding: As the Complainant had accrued the requisite one year’s continuous service by that time, the Court finds no jurisdictional matter arises to prevent the Complainant pursuing his complaint under the Act.

Substantive Issue

The Complainant submits that the Respondent’s actions in terminating his employment on 13 September 2022 was disproportionate, unreasonable and a breach of fair procedures.

The Court’s function is to consider whether in all of circumstances the decision to dismiss the Complainant fell within a band of reasonable responses open to a reasonable employer. The Court must assess whether the dismissal was a fair, proportionate, and appropriate sanction. In doing so, the Court is required to examine the conduct of both parties, and whether the procedures followed by the employer were substantially fair. 

In this case, no submission or evidence was presented to the Court by the Respondent to support the contention that its actions in terminating the Complainant’s employment were a fair or proportionate response to any workplace issues that may have arisen. As a result, the Court finds that the Complainant was unfairly dismissed from his employment on 13 September 2022 without any recourse to fair procedures.

Finding: Accordingly, the Court finds that the dismissal of Complainant was substantively and procedurally unfair.

Redress

The Court enquired of the parties what their preferred remedy was under the Act if it determined the appeal were to succeed. Having regard to the circumstances of this case it is clear to the Court that the remediesof reinstatement or reengagement are not appropriate forms of redress, and that an award of compensation is the most appropriate remedy.

The purpose of any award of compensation for unfair dismissal is to compensate for financial losses actually incurred because of the dismissal. In this case, the Complainant’s salary was €453 gross per week when his employment was terminated on 13 September 2022. He gave evidence was that he was out of work until December 2022 when he enrolled as an apprentice with a barber in Dundalk. His monthly earnings as an apprentice were €400 per month. He a secured a fulltime position in January 2024 earning €700 gross (€400 nett) per week. The Complainant asserts that the losses arising from the termination of his employment amounts to €23,500.

In determining the amount of compensation payable under the Act the Court is obliged to consider several different factors. The Court is obliged to consider the extent to which any financial loss incurred was attributable to an act, omission, or conduct, on the part of the employer or on the part of the employee. In this case, no submission was made by the Respondent to justify the reasons for the Complainant’s dismissal. No submission was made to demonstrate that the Respondent complied with any procedures or provisions of a code of practice relating to procedures regarding dismissal when it terminated the Complainant’s employment.

In determining the amount of compensation payable, the Court is also obliged under s.7(2)(c) of the Act to look at the steps taken by the Complainant to minimise his financial losses after the termination of his employment. Ms Fay BL, on behalf of the Respondent, submitted that the Complainant failed to adequately mitigate his losses and pointed to the dearth of information provided by him in relation to his efforts to mitigate that loss. Furthermore, Ms Fay submits that no loss arose after January 2024.

An award of compensation must be in an amount that is ‘just and equitable in all the circumstances”. These words provide the Court with some latitude in considering both mitigating and aggravating factors in the circumstances surrounding the dismissal.  Weighing all these factors and having regard to all the circumstances of this case, including the Complainant’s limited efforts to mitigate his losses, the Court determines that the appropriate amount of compensation for the Complainant’s ongoing losses to be €12,500 as just and equitable.

Determination

The Court finds, for the reasons stated above, that the Complainant was unfairly dismissed. The appeal is well-founded.

The Court requires that the Respondent pay to the Complainant the sum of €12,500 being the amount that the Court considers just and equitable in all the circumstances.

The decision of the Adjudication Officer is set aside accordingly. The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
ÁM	______________________
20th December 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Áine Maunsell, Court Secretary.