Complainant

Respondent

Parties

Darryl  Scales

Ennistymon Parish & Community Group

Representatives

  Self-represented

Pamela Clancy, Cashin Clancy Solicitors

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-00058866-001

17/09/2023

The Complainant referred his claim to the Director General of the WRC on 17 September 2023 alleging that he was unfairly dismissed for exercising his right under the Protected Disclosure Act. The Complainant stated that he did not have 12 months service. He sought compensation.

The Respondent rejects the claim.

Ms Clancy, on behalf of the Respondent submits as follows.

The Complainant was employed by Ennistymon Parish and Community Group DSP Scheme Limited under a contract of employment dated 11 November 2022 with the commencement date 14 November 2022 for a fixed-term period of 12 months. The Complainant in his complaint form has incorrectly stated his date of commencement to be 24 February 2020. This date is disputed, and should be read 14 November 2022, as per the contract signed by the Complainant on 11 November 2022.

The Complainant stated his termination date to be 18 August 2023. The Complainant, therefore, does not have the requisite 12 months service under section 8 of the Unfair Dismissals Act, and there is no jurisdiction for a finding of unfair dismissal in his favour.

The Complainant claims to be exercising his right to claim under the Protected Disclosures Act. However, the Complainant has not made any protected disclosure within the meaning of the Act.

The fact of dismissal is denied and disputed by the Respondent. The Respondent submits that the Complainant resigned his position and terminated the contract of employment himself. This being done by way of repeated verbal statement of resignation on 4 August 2023, to his Supervisor, and by way of physical action, in throwing his keys towards his Supervisor.

The Respondent submits that the Complainant stated that he would not return to his workplace. When asked if he intended attending work on Saturday, he again stated that he would not.

If it is the Complainant’s case that he subsequently withdrew his resignation, then this is denied by the Respondent, who is under no obligation to accept such attempt of withdrawal, and there was sufficient “cooling-off” period.

The Complainant’s position was not filled or advertised following his resignation.

As dismissal is in dispute, then the claim must proceed by way of claim for constructive dismissal, and the onus is on the Complainant to prove his case. The complaint should fail due to the Complainant failing to first invoke all internal procedures, including the Grievance Procedure contained in the Employee Handbook.

The Respondent relies on Allen v Independent Newspapers (Ireland) Limited 2002 ELR84 which stated: “the onus is on the claimant to prove his case…and the test for the claimant is whether it was reasonable for him to terminate his contract”.

In Reid v Oracle EMA Limited UDA1350/2014 it was stated: “It is incumbent on any employee to utilise and exhaust all internal remedies available to him or her unless he can show the said remedies are unfair”.

In the event it is determined that the Complainant did not terminate the contract of employment, and it is found that instead, the Respondent dismissed the Complainant, then in that case the Respondent makes the following submissions.

The purported termination occurred within an 11-month probationary period as set out in the contract of employment. The Complainant, therefore, does not have the requisite 12 months service under section 8 of the Act, and there is no jurisdiction for a finding of unfair dismissal in his favour.

The Complainant claims to be exercising his claim under the Protected Disclosures Act, however, he has not made any protected disclosure withing the meaning of the Act.

The Respondent was legally entitled to terminate the Complainant’s employment within the contractual probationary period.

The Complainant failed to follow the Respondent’s stated policies and procedures in failing to file an appeal to the purported dismissal.

The Complainant’s conduct from the incident of 31 July 2023, and thereafter, including his seeking to unlawfully and unreasonably bar users of the facility (there has never been any rule that customers must pay to use the showers), and without any authority of his employer, and creating an altercation likely to bring the Respondent into disrepute, was such to constitute in itself a fundamental breach of contract of employment.

The Complainant’s conduct from the incident of 31 July 2023 represented unacceptable behaviour likely to expose the Respondent to a claim for discrimination on the grounds that the four individuals with whom the Complainant created an altercation, were members of the local Traveller Community, was such to constitute in itself a fundamental breach of the contract of employment.

The Complainant’s conduct from the incident of 4 August 2023 constituted unacceptable behaviour likely to expose the Respondent to a claim for bullying and harassment by the supervisor.

The above examples of the Complainant’s conduct could be deemed to have contributed significantly to the Complainant’s employment difficulties, causing the employer-employee relationship to have fundamentally broken down.

The Respondent refers to An Employer v A Worker (Mr O) EED0410 where the Labour Court stated:

“It is, however, settled law that every contract of employment contains an implied term that the parties will maintain mutual trust and confidence in their working relations with each other.”

The Respondent submits that the Complainant failed to mitigate his loss, if any, and has failed to provide any evidence of seeking alternative employment and remuneration. The Complainant has been on a full-time training course since September 2023.

In the event that the Complainant’s claim succeeds, the Respondent submits that the maximum loss is for the period from 18 August to September 2023 and it should be assessed in light of the Complainant’s conduct and contribution to loss, and his failure to mitigate loss.

The Respondent was open to the option of re-instatement or re-engagement, subject to clarification with the DSP.

Summary of direct evidence and cross-examination of Mr Shannon, Director

Mr Shannon said that the Supervisor rang him and told him that the Complainant threw his keys at her and said that he would not be coming back to work. She was very upset. The Respondent decided to accept the resignation and issued a letter of 8 August 2023 confirming the resignation.

The Complainant never said he wanted to come back to work.

Mr Shannon said that he and other Directors work in a voluntary capacity, they do their best to investigate any issues that are reported. The incident of 31 July 2023 was under investigation.

Mr Shannon said that, if customers paid to use e.g. the squash court, they can also use the shower.

Mr Shannon said that it was checked with Gardaí, who log every call, and confirmed that no call was received regarding an issue in the community centre on the night in question.

Mr Shannon said that the Complainant did not invoke the grievance procedure. He also did not appeal the decision to dismiss, if he believed he was dismissed. The Complainant walked out, he terminated his employment.

Mr Shannon said that he has been 18 years on the Board and there have never been any claims.

In cross-examination, Mr Shannon confirmed that he and Mr B were investigating the incident of 31 July 2023. Mr B found out from the diary about the incident. As far as he was aware, Mr B spoke with the individuals involved but not with the Complainant. They spoke with the supervisor.

Summary of direct evidence and cross-examination of Ms Howley, the Complainant’s supervisor

Ms Howley said that when she got to the office on Tuesday, the receptionist showed her what was in the diary. She did not think about it as the note said that it was diffused. She said that Mr B told her that he would speak to the Chairman of the Board and they would investigate.

On Friday 4 August 2023, the Complainant asked her what has been done. She replied that it was under investigation as far as she knew, CCTV was reviewed and Mr B spoke with the father of one of the individuals involved. Ms Howley said that the Complainant did not like what she told him. He said that she was not doing her job and he threw his keys. The Complainant returned 20 minutes later and told her that Gardaí gave him a great advice. The Complainant stood over her. She asked him to sit down and discuss it but he refused. Ms Howley said that she told the Complainant that she needed someone else in the office. He asked if it was Mr B. Ms Howley said that she replied that she did not care who, anyone. The Complainant said that he was leaving. She asked him when he would be back and he replied, “why would I be back to an unsafe place?”.

Ms Howley said that the Complainant was aggressive, there was “fire in his eyes”. She said that she was shaking, she felt sick, she could not believe what was happening.

Ms Howley said that the receptionist was at the reception during the first incident and the Chaiman of the Board, Mr B, and the receptionist were outside in the reception during the second incident. The Complainant was aware that they were there, he passed them on the way.

Ms Howley said that she never had any issue with the Complainant. She worked with him at his level for a long time (before she got the supervisor’s job). Ms Howley said that when her position changed, his behaviour towards her changed. She said that perhaps he had difficulty with working with women.

In cross-examination, the Complainant asked Ms Howley about the reasons he left his employment with a named golf club. Ms Howley said that she said she did not know the details.

Ms Howley clarified that she did not tell the Complainant that the investigation was concluded, she said “it is under investigation”.

Ms Howley clarified that her office is approximately 14 x 7 ft, with two desks and 2 chairs. She asked the Complainant to sit on one of the chairs. She wanted to have someone in the office because of his aggressive behaviour.

The Complainant asked Ms Howley what the difference was between “upset” and “aggressive”. Ms Howley said that he was aggressive and she felt threatened.

The Complainant asked why Ms Howley did not watch the CCTV footage. Ms Howley said that she was not a person who could view the CCTV footage.  She only saw it after the Complainant gave her permission to see it.

Ms Howley said that the Complainant threw his keys and left the room. When she asked him if he was going to return to work, would he be back in the morning, he replied “no, why would I?” The Complainant asked Ms Howley what was wrong with wanting a safe place to work. Ms Howley said that it was safe, nobody ever told her that it was unsafe.

Ms Howley said that the Complainant was supposed to work on Saturday and Sunday but he did not turn up and there was no contact from the Complainant. On Monday 8 August 2023 a letter was issued confirming the Complainant’s termination of his employment.

In the WRC complaint referral form, the Complainant submits as follows.

The Complainant has been on the CE Scheme operated by the D.S.P. Community Employment Project since 24 February 2020. The Supervisor of this scheme was Mr B.

The Complainant’s first placement was with a named gallery. On 3 July 2020 there was an incident involving the Complainant and the sponsor of that placement. The Complainant submits that he reported the incident to the Gardaí.  The Complainant submits that he was subsequently moved from the gallery to a placement in a named golf club. The Complainant’s contract with the golf club began 9 July 2020.

The Complainant submits that, in the summer of 2021 he was a witness to an incident involving a member of one of the committees of the golf club and a child. The incident was reported to the Gardaí but as the child was not in danger it was determined to be not actionable. The Complainant reported the incident to the Club Captain and the Ladies Captain and also to his CE supervisor.

The Complainant submits that, as the club officers were intent on playing down the incident and would take no action, he could no longer work for such an institution and asked to be moved. Whilst waiting for another position to become available, the Complainant submits that he was assaulted by one of the officers of the club and left Immediately.

The Complainant was informed by his CE supervisor that he had their support and that he was under no obligation to work in a placement that he did not feel safe. The Complainant returned the keys he had for the golf clubhouse to his supervisor and waited until a position in the community centre became available. The Complainant’s contract with the community centre began 2 May 2022. Mr B retired as his supervisor on 7 July 2023 and Ms Howley became the supervisor.

On the evening of Monday 31 July 2023, the Complainant as was at his place of work, Ennistymon Community Centre. Two adults and two juveniles had been using the squash court and were going to leave the premises. The first adult did not take the exit as they should but turned into the gym. The Complainant followed him and asked where he was going, he told the Complainant that he was going for a shower. The Complainant told him that the cost was €5 for non-members. He said that it was not, that he always used the shower after handball. The Complainant told him that he could use the shower if he paid at the office, otherwise he would have to leave. The other adult and the two juveniles then came down from the squash court and were informed of the Complainant’s decision to prevent him from using the shower. The other adult  said he was going to use the showers as well. At this point the Complainant had positioned himself in the doorway to the gym with his hands on the doorframe. He told them that if they paid, they could use the showers, if not then they had to leave. The Complainant submits that the threats and abusive behaviour began. The Complainant was told by the first adult that no one stops him going where he wants. He also placed his face right up against the Complainant’s and told him to get out of his way. The Complainant’s wrist was grabbed in an attempt to pull it from the door frame. The Complainant was called a racist, although everyone present was white.

The Complainant informed them that all of these events where being captured on CCTV and it would be best if they just left as they were only making trouble for themselves. Then the first adult produced his phone and pushed it into the Complainant’s face and said he was going to film it too and put it up on social media.

The Complainant submits that this was very disturbing in the light of how he was aware that assaults were commonly videoed for the purpose of sharing them.

The second adult then said that it didn’t matter what the Complainant said or did as they knew Mr B who would sort the Complainant out as the Complainant was a nobody and could do nothing.

The Complainant submits that he said that, as they were not leaving willingly and were intimidating him, he would bar them. He told them they were barred and instructed them to leave. This had no effect. They continued to film the Complainant and told him that they would be reporting his behaviour to Mr B and that there would be no consequences for them. The next time they wanted to use the showers, there would be no problem.

The Complainant submits that, as it was now clear to him that he could only be putting himself in danger of further and more serious assault, he told them that he was ringing the Gardaí. The Complainant went to the office to do so. The Complainant rang 999 (7:51 pm for 1min 35sec) and was put through to a call centre who would further his details to the local office.

The Complainant submits that he continued to ask the service users to leave the building but they continually refused and stood outside the office. They remained there for 20 minutes only leaving when they became bored. As they left, the Complainant rang the Garda station in Ennistymon (8:11pm 1min 17sec) but was transferred to the Garda Station in Kilrush to inform them the situation was ended and there was no need to send a Garda to an incident that had concluded.

The Complainant submits that he documented the incident in the office diary.

The Complainant submits that this was not the first incident involving these two adults and two juveniles. On Monday 27 June 2023 the same two adults and two juveniles had taken the squash court. It was approaching 10pm and closing time. The Complainant left the office and went upstairs to remind them of the fact that we were closing shortly. When he got to the top of the stairs, the Complainant noticed that the light was on in the storeroom at the far end of the gym. When the Complainant got to the squash court, he asked if anyone had been in the storeroom and was told that none of them had. The Complainant informed them the centre was closing soon and not to put any more money in the light. After a few minutes the first adult came down and headed into the gym. The Complainant followed him and asked where he was going. He replied that he was going for a shower. The Complainant told him that he would need to pay. He then told the Complainant that the second adult had taken no notice of what he had said and had put more money in the light as he had no intention to leave. The Complainant returned upstairs to tell the second adult and the two juveniles that the squash court was closed and that they would have to leave. When they all arrived downstairs the first adult had used the Complainant’s absence to go to the showers. The adult and two juveniles waited for the first adult then left.

The Complainant wrote a note in the diary for the CCTV to be reviewed by Mr B to see if anything had occurred regarding the storeroom and made comment as to their behaviour.

The Complainant submits that he received no feedback as to what, if anything had occurred. The CCTV of the assault of 31 July 2023, one that was carried out by two adults and two juveniles and lasted for nearly 30 minutes and required the Complainant to call Gardaí was processed by Mr B. Mr B had been the supervisor of the scheme on which the Complainant was employed until his retirement on 7 July 2023. Mr B held no official capacity over the Complainant and did not have any right to review the  CCTV footage. His conclusion was that nothing of significance occurred. The Complainant was not contacted as to his wellbeing or input.  Mr B did, however, make contact by phone with the parent of some or all involved. No other action was taken.

The Complainant submits that he was told by his supervisor on Friday 4 August 2023 that the incident had been dealt with by Mr B and that she had not been permitted to even view the CCTV footage.

The Complainant submits that, having heard that Mr B had reviewed the incident and taken no action and that his supervisor had done nothing and intended to do nothing, he informed his supervisor that he intended to make a complaint against both of them and requested that the CCTV footage of the incident be protected. The Complainant then left the office and went to the Garda Station. Having spoken to the Garda, he returned to the office.

The Complainant submits that, when he returned to the office Mr B was on the premises. The Complainant spoke to his supervisor in her office. During the conversation he was told that the incident that had occurred was commonplace and nothing out of the ordinary. The Complainant submits that he asked if it was commonplace for members of staff to call the Gardaí. The Supervisor later confirmed in an email that it was not. The Complainant asked if the people involved had been barred from the Community Centre. He said that his supervisor just laughed. The Complainant submits that he told her that under the circumstances of the assault and her reaction to the event he did not feel safe to come to work. He requested the contact details of her superior so he could make a complaint. The Supervisor offered no suggestions as to how the Complainant’s safety would be guaranteed and she told him that she would have to get her superior's permission to pass on her contact details and that they were out of the office until Monday 14 August 2023.

The Complainant submits that he left his keys to the community centre in the Supervisor’s office as he would not be returning to work until the situation had been sorted. The Complainant submits that at this point the supervisor said she had to involve other people in the conversation. The Complainant felt that there was no one with whom this would be appropriate and he left.

On 8 August 2023, the Complainant received a letter from his supervisor informing him that he had terminated his contract and was on holidays until 18 August 2023 and that he would have to sign on with the Department of Social Protection (‘DSP’) from 21 August 2023.

The Complainant submits that he had not been furnished with the contact details of the supervisor’s superior at the DSP.

Additional correspondence

On 20 December 2023, the Complainant furnished some additional documents in support of his claim such as copies of emails, the letter of termination of his employment, a response to the Respondent’s communication to the WRC of 27 October 2023, and a timeline of events.

Summary of direct evidence and cross-examination of the Complainant

At the adjudication hearing, the Complainant stated, under affirmation, that he made an error indicating on the complaint form that he did not have 12 months service. He asserted that “rolling” contract means that it was a permanent contract.

The Complainant further stated that he did not make a protected disclosure as asserted in his complaint form. He confirmed that he inserted this information in error and he did not wish to pursue a dismissal for making a protected disclosure but an unfair dismissal.

The Complainant said that he had commenced his first contract under the scheme on 24 February 2020 in a named gallery until the end of eligibility for the scheme. The contract was broken in July 2020 and he received a new contract in July 2020 under the scheme. The Complainant said that the scheme runs for 52 weeks November-November  and he received a fixed-term contract each year for each scheme.

The Complainant said that his contract was terminated without any consultation with him.

He worked on 31 July 2023 from 2pm to 10pm. He was supposed to work on Saturday 5 August and Sunday 6 August 2020 from 8am to 4pm on each day, but he did not.

The Complainant said that he wrote to Mr Shannon, Director on 10 August and 19 August 2023.

With regards to his loss mitigation, the Complainant said that he did not work since the termination of his employment. On 17 September 2023 he commenced a full-time Art, Craft & Design course which he completed on 17 April 2024.

He said that he looked for a job in the arts & crafts area with someone who is artistically inclined like himself. It was completely different to what he had done previously but that was what he wanted to do for retirement.

The Complainant said he sought compensation but he would be open to  re-instatement or re-engagement.

In cross-examination, the Complainant confirmed that he did not look for any weekend work. He said that the course was very intense, full time, and he would not be able to work. He did not look for work at the time.

The Complainant confirmed that he did not make a statement to Gardaí regarding the alleged assault. He said that he was not given an option of making a statement. The Garda told him that he had more of a problem with his employer.

The Complainant confirmed that he was previously verbally assaulted in his previous employment.

In reply to a query if he thought it was appropriate to throw his key back, he said that he followed the same procedure he used in his previous employment.

The Complainant disputed that there was no payment for showers once a payment was made to use facilities, he said that he never heard of that. When the situation became adversarial, he stood his ground and blocked the door. The Complainant said that he did not think it was necessary to speak to his supervisor about it or to clarify the shower issue. He said he knew that there was a charge.

The Complainant confirmed that, because one customer referenced Mr B, it irritated him that Mr B was to investigate the matter. That was why he left until Friday to check what was done.

The Complainant said that he did not notify the Respondent of the incident other than the diary entry. It was put to him that the diary entry does not say that he was assaulted. The Complainant said that he would not have contacted the Gardaí if he was not assaulted. It was put to the Complainant that from reading the diary entry, it could not be known that it was an assault. The Complainant replied with a question if Ms Clancy has seen the CCTV footage. She said she had and she had not seen an assault.  She asked the Complainant why he did not follow up and made a statement. The Complainant did not reply to that.

It was put to the Complainant that he arrived unannounced on Friday 4 August 2023, he was told that the investigation was ongoing and he jumped the gun resigning. The Complainant disputed that, he said he was told the investigation was concluded. He said he did not talk to Mr B as Mr B was not his supervisor.

It was put to the Complainant that perhaps the Respondent was investigating the matter and preparing to speak to him on his return to work on Saturday. As long as he was not notified, he could not know what the outcome was. It was put to him that he presumed the outcome. The Complainant replied that Mr B was only someone who sticks his nose in, he had no right to investigate, he was not the Complainant’s employer.

It was put to the Complainant that he expected to walk out and not come back until things are right in his eyes. He said that that was the case and asked what was wrong with that?

The Complainant said that the incident should be investigated on the basis of his diary entry. He said  that Ms Howley wanted other people involved, he did not. He said that Mr B wanted to speak with him, but he did not wasn’t to speak with Mr B.

The Complainant asserted that he never received the staff handbook.

I have reviewed the evidence presented at the hearing and taken account of the authorities relied upon by the Respondent.

The first matter to consider is whether or not the Complainant had the protection of the Act in terms of his length of service with the Respondent.

The Complainant maintains that he commenced employment with the Respondent on 24 February 2020 and that he was dismissed from the employment on 18 August 2023.

The Respondent concurs with the Complainant’s termination date but disputes the commencement date. The Respondent asserted that the Complainant was employed on a series of fixed-term contracts, the most recent from 14 November 2022. As the employment ceased on 18 August 2023, the Respondent asserted that the Complainant did not have the requisite service to avail of the protections of the Act. The Respondent further asserted that the Complainant resigned of his own volition on 4 August 2023.

The Unfair Dismissals Act 1977 does not apply to the non-renewal of a fixed-term or specified-purpose contract, provided the contract is in writing, is signed by both parties and states that the Act will not apply to the termination of the contract (section 2(2)(b) of the Act)

However, employees working on repeated fixed-term contracts are covered by Act, provided that they have at least one year’s continuous service (subject to the exemptions where a complainant does not need to have one year’s service). Section 2(2)(b) does not apply to a dismissal during the currency of the fixed-term contract or to dismissal occurring in circumstances other than the expiry of the contract. Therefore, provided the employee has the requisite service, this provision would not prevent a claim being made in respect of a dismissal during the continuance of the fixed-term contract.

The rules of computing length of service and continuity are set out in the First Schedule to the Minimum Notice and Terms of Employment Act 1973, as amended.

‘First Schedule Computation of Continuous Service

Continuity of service

1.

The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by—

(a) the dismissal of the employee by his employer, or

(b) the employee voluntarily leaving his employment.

…

6.

The continuous service of an employee in his employment shall not be broken by the dismissal of the employee by his employer followed by the immediate re-employment of the employee.’

Paragraph 6 provides that continuity is not broken by the dismissal of an employee followed by their “immediate re-employment”.

There was no dispute that the Complainant initially commenced his employment on 24 February 2020 on a Community Project Scheme. He then received further contracts with the start dates of 16 November 2020, 15 November 2021, 2 May 2022, and 14 November 2022. He worked for the Respondent on fixed-term contracts continuously until 18 August 2023.

I, therefore, find that the Complainant has the requisite service for the purposes of the Act.

Dismissal

Section 1 of the Unfair Dismissals Act provides the following definition of “dismissal”:

“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.”

The Complainant alleges that he was dismissed by the Respondent, the Respondent asserts that the Complainant resigned his position. 

In Parkboro Developments Ltd T/a Park Engineering v Mariusz Witkowski UDD2338 the Labour Court noted:

“There can be no absolute rules about what 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.”

Generally, an employee is dismissed when the employer informs the employee clearly and explicitly that the contract of employment is at an end or if the circumstances leave no doubt that dismissal was intended or may reasonably be inferred as having been intended [Desmond Ryan, Redmond on Dismissal Law (3rd ed., Bloomsbury Professional, 2017) at 22.13].  Where ambiguous words are used, an objective test should be deployed to decide what was intended by the speaker.  In Devaney v DNT Distribution Company Ltd, UD 412/1993, the Employment Appeals Tribunal 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.”

As there is a dispute between the parties concerning whether the Complainant resigned or was dismissed, I must first examine the relevant evidence and reach a conclusion in that regard.

A key area of conflict in this case relates to matters that transpired during the course of a meeting between the Complainant and his supervisor which took place 4 August 2023.  While there does not appear to be any considerable divergence between the Complainant’s and the Respondent’s respective account of events, the interpretation of them is totally opposite. The Respondent contends that the Complainant resigned his position at that meeting. The Complaint, however, contends that he did not, and he was dismissed by letter dated 8 August 2023.

There was no dispute that on Friday 4 August 2023, the Complainant turned up unannounced on his day off in the office off his supervisor. He appeared to be dissatisfied with the way the investigation was being carried out, albeit at that juncture, the Complainant did not have any communication with the persons tasked with the investigation. In fact, his own evidence was that he did not want to talk to Mr B at all.

There was no dispute that at the said meeting the Complainant threw his key back to his supervisor. It appears that, when asked by his supervisor if he was coming back to work on the next morning, the Complainant’s reply was to the effect that he was not, why would he, and that he was leaving. It seems that the parties’ interpretation of the Complainant’s response was completely different. There was no dispute that the Complainant did not turn up for work on Saturday 5 August and Sunday 6 August 2023. The Complainant did not contact the Respondent at all to explain his non-attendance. The Complainant, at the adjudication hearing asserted that he declined to work but he did not resign. The Respondent, on the other hand, contented that the Complainant resigned his position.

Having considered the matter, I find that, even if I accept the Respondent’s position that its understanding was that the Complainant resigned his position, legal precedents caution against heat of the moment resignations. Best practise provides that an employee is allowed to come back to at least discuss the case when tempers are cooled.

I consider the Labour Court determination Shinkwin v Donna Millett EED044 to be particularly instructive in relation to the matters in dispute in the instant case.

The Court first considered if the complainant’s apparent resignation ever took effect.

‘A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation. Where adequate notice is given, the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract.’

In Shinkwin the Labour Court referenced an extract from  Dr Mary Redmond in her book Dismissal Law in Ireland  as follows :

‘In her book Dismissal Law in Ireland, Dr Mary Redmond wrote as follows at paragraph [21.24]: -

“When unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, generally it is safe to conclude that the employee has resigned. However, context is everything. A resignation should not be taken at face value where in the circumstances, there were heated exchanges or where the employee was unwell at the time. The intellectual make up of the employee may also be relevant.”’

The Court found that that ‘there are occasions in which an apparently unconditional and unambiguous resignation may be vitiated by the circumstances in which it is proffered. InKwik-Fit (GB) Limited v Linehan [1992] IRLR 156, the following passage appears at paragraph 31:-

“If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment, personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (being jostled into a decision) and indeed the intellectual makeup of the individual may be relevant (see Barclay [1983] IRLR 313). These we refer to as “special circumstances”. Where special circumstances arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such enquiry is ignored at the employers risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the “special circumstances” the intention to resign was not the correct interpretation when the facts are judged objectively.”

In Martin v Yeoman Aggregates Ltd [1983] IRLR 48 the following finding of the EAT is recited in the headnote:-

“It is a matter of plain common sense, vital to industrial relations, that either an employer or an employee, should be given an opportunity of recanting from words spoken in the heat of the moment. It could not be accepted, as argued by the appellant, that once clear and unambiguous words are used the contract irreversibly comes to an end so that second thoughts make no difference.”’

The Court went on to say that ‘[t]hese arepersuasive authorities on the law applicable to cases such as this. They also contain sound principles of good employment practise.  An employee may make a decision which is not fully informed because they are not in a position to fully evaluate their options or they may act on a misinterpretation of something which is said or done. Where the situation is still retrievable it would be unreasonable for an employee to be denied an opportunity to recant once the true position becomes clear.’

The Court refenced approaches by the EAT in this jurisdiction in claims of unfair dismissal.

‘In Keane v Western Health Board (UD 940/1988) the claimant was aggrieved at the manner in which she was treated by a more senior employee with whom she was assigned to work. She was unaware of the existence of a procedure by which she could have processed her grievance. The claimant believed that the difficulties and stress which she was experiencing presented her with no alternative but to resign. When she became aware of other industrial relations options she sought to withdraw her resignation.

The Tribunal took the view that the claimant's resignation, viewed against the background in which it was made, could not be considered a fully informed decision or notice by her to terminate her employment. They were of the opinion that the resignation was tainted by reason of the confused state of the claimant’s mind at the time the resignation was proffered. The Tribunal concluded that in the circumstances of the case a reasonable employer would have allowed the claimant to revoke her notice and the respondent’s refusal to consider doing so amounted to a dismissal.

On the basis of these authorities, it seems clear that an employee may withdraw a notice of resignation where special circumstances exist relating to the context in which the decision to resign was taken. The resignation must be withdrawn within a reasonable time which will probably be quite short. The test of reasonableness is an objective one decided in the circumstances of the case (Kwik-Fit (GB) v Linehan). It is also clear from the authorities that where an employee freely and deliberately decides to resign and subsequently changes his or her mind, the employer is under no obligation to accede to a offer to withdraw the resignation or to even to consider such an offer.’

The Respondent confirmed its understanding of the meeting on 4 August 2023 and the Complainant’s non-attendance and wrote to the Complainant by letter dated 8 August 2023 in unambiguous words:

“This is to confirm that you have terminated your contract with us. “

It appears that the letter was sent by post and emailed to the Complainant on 10 August 2023.

The Complainant emailed the Respondent on 10 August 2023 as follows:

“Hi,

Here are my queries: when do you say I terminated my contract? What reason did I give? As my employer you were entitled to view the cctv footage on application. Why did you state you were not permitted? Have you ensured the retention of the cctv footage of the assault incident? Can you tell me how many times in the last 12 months Gards have been summoned to incidents at the Community Centre? Why is this assault being investigated and dealt with by a different procedure than was used to investigate and deal with the assault on me that occurred in [named] Golf Club? What has my “termination” to do with my intention to bring a complaint against you (Margaret) and [Mr B]?

Yours sincerely,

Darryl

P.S. I understand that your Superior is out of office until 14-08. When contacting them please explain to them that I refute your assertion that I terminated my contract, That I will be making a complaint against you and that I wish to be informed of the procedure.”

The supervisor responded to the Complainant by email of 17 August 2023 stating that:

“The reason you gave me that you were not returning to work is that you said “I’m leaving as I feel unsafe in the workplace” and you threw the keys of your place of employment on the desk in my office”.

The supervisor addresses the matter of CCTV and then goes to say:

“The procedure was treated differently as we facilitated you from the [named] Gallery and [named Golf Club] but in this case you removed yourself from the Community Centre.

I did try to talk to you calmly but you did not give me a chance to speak and when you returned the second time you stood over me while I was seated at my desk and closed the office door and then spoke to me in a loud and aggressive behavior where I felt threatened. It was then that I stood up and went to get a person in the office while I spoke to you but you stored out waving your hand saying “I’m leaving””.

The Complainant emailed the supervisor on the same day. He made allegations that Ms Howley and Mr B fail “to apply the same criterion” as in his previous places of employment “for your own [The Supervisor’s] and [Mr B’s] purposes.”

In his second email on the same day, he stated “at no point did I mention terminating my contract and at no point since then I have made any such declaration”.

I note that the Complainant also emailed Mr Shannon and 14 August 2023, stating that “as my employer I am informing you that the CE Supervisor to whom I report has terminated my contract with you from Friday 18th August 2023. If this event comes about I will be taking an unfair dismissal case against you…”

In reaching a conclusion in this case, I am guided by the findings of the Labour Court in DWT 1018 Rezmerita Limited v Katarzyna Uciechowska where the Court held:

‘In this case there is a marked conflict in the evidence tendered on behalf of the Respondent as against that given by the Claimants in relation to all material issues arising in this case. There was also an absence of any probative independent corroboration on either side. The standard of proof necessary to rebut the presumption of non-compliance is the preponderance of probabilities, usually referred to as the balance of probabilities. In Miller v Ministry of Pensions [1947] 2.All E.R, 372 Denning J. (as he then was) explained, in relation to this standard of proof, that: -

“[i]f the evidence is such that the Tribunal can ‘say we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not”.’

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. Having considered all the evidence and relevant legal precedents on the issue of the fact of dismissal, I am satisfied that the Complainant has discharged the burden placed upon him and I find that there was a dismissal.

Accordingly, on the balance of probabilities, I find that the Complainant was dismissed by the Respondent on 18 August 2023.

Section 6 of the Act stipulates as follows:

‘Unfair dismissal

(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.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.

In The Governor and the Company of Bank of Ireland v James Reilly (2015) IEHC 241, Mr. Justice Noonan elaborated on what was required by Section 6 of the Unfair Dismissals Acts as follows: 

‘It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.’

The Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (S.I. No. 146/2000) sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures.

The combined effect of the above requires me to consider whether or not the Respondent's decision to dismiss the Complainant was reasonable in the circumstances. It is well established that is not the role or function of the Adjudication Officer to determine the guilt or innocence of the employee but rather to assess whether a reasonable employer, in the Respondent's position and circumstances, would have acted in the same way. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the Respondent to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.

Procedural Framework

The Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000) promotes best practice in the conduct of grievance and disciplinary procedures and emphasises the importance of procedures to ensure fairness and natural justice. 

The Code of Practice provides that best practice entails a number of stages in the discipline and grievance process as follows:

·        That employee grievances are fairly examined and processed;

·        That details of any allegations or complaints are put to the employee concerned;

·        That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

·        That the employee concerned is given the opportunity to avail of the right to be represented during the procedure; and,

·        That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

The core tenet of the Code is that all employees are entitled to fair procedures and natural justice in all of their engagements with their employer.

Based on the totality of the evidence adduced, both written and oral, and the submissions made, it is clear that the Respondent did not follow any procedures before dismissing the Complainant. The Respondent’s actions were contrary to the norms of employment relations practice which requires that the dismissal of an employee is effected in line with S.I. 146 of 2000.

The constitutional right to fair procedures and natural justice was recognised in re Haughey ([1971] I.R. 217), where O'Dalaigh C.J. stated that: “Article 40 s 3 of the Constitution is a guarantee to the citizen of basic fairness of procedures”. The principles enshrined in Haughey were implied into contracts of employment by the Supreme Court in the case of Glover v BLN Ltd ([1973] I.R. 388) and have been cited in Labour Court Decisions including UDD1815 A Commercial State Body v a Worker, UDD1611, Kilsaran Concrete Kilsaran International Ltd and Vitalie Vet, UD1294/2008. 

Walsh J, giving the majority judgment for the Supreme Court in Glover v. BLN Limited [1973] IR 388, stated that:-

‘This court in re Haughey [1971] IR 217 held that [Article 40.3] of the Constitution was a guarantee of fair procedures. It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures. It is unnecessary to decide to what extent the contrary can be provided for by agreement between the parties.’

In light of the above, I find that the dismissal of the Complainant was procedurally unfair.

Substantive matters

In Bunyan v United Dominions Trust (Ireland) 1982 ILRM 404, the EAT endorsed and applied the view in the case of N.C.Watling Co Limited v Richardson 1978 IRLR 225 EAT (ICR1049) where it was stated: ‘The fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved. The Tribunal therefore does not decide the question whether, on the evidence, before it, the employee should be dismissed. The decision to dismiss has been taken and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.‘

It appears that the Complainant was not informed of the reasons for his dismissal. He was not informed of any alleged shortcomings on his part and she was not the subject of any investigation or disciplinary procedures.  Accordingly, I find the Complainant was unfairly dismissed.

Redress 

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of section 6 of the Unfair Dismissals Act. Accordingly, I find that the complaint is well founded.

Section 7 Redress for unfair dismissal of the Act provides:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c)

(i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,…”

Section 7(2) of the Acts provides: -

“(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid….”

Section 7(3) of the Act provides that future loss may be taken into account as follows: “financial loss, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to 1973, or in relation to Superannuation”.

In accordance with the provisions of section 7(1) of the Act I am obliged to determine which of the three forms of redress open to me is most appropriate having regard to the circumstances of this case. In the circumstances, and in light of the fundamental breakdown of the relationship between the parties, I have decided that reinstatement or re-engagement of the Complainant are not practical options in this case. Instead, I take the view that compensation is the appropriate redress in this case.

The parties confirmed that the Complainant’s weekly wage was €247.50. The Complainant’s  evidence was that he did not secure new employment as of the date of the hearing.

Section 7(2)(c) provides that in examining the financial loss, the Adjudication Officer must have regard to the measures adopted by the employee to mitigate his loss. The legislation does not allow the Adjudication Officer to award compensation in an amount that goes beyond the financial loss attributable to the dismissal.

Therefore, as an award of compensation for unfair dismissal is to make reparation for financial loss actually incurred in consequence of a dismissal, I sought specific details on the losses incurred and the efforts made to mitigate those losses.

The Complainant gave evidence that he commenced a full-time course (Art, Craft & Design) on 17 September 2023. The course concluded on 17 April 2024. The Complainant asserted that, had he not been dismissed, he would have continued working for the Respondent. However, he also gave evidence that he did not seek new employment, even part-time (weekend) as the course was “very intense, full-time” and he “would not be able to work”.

The Complainant gave evidence that, although it was completely different to what he had done before, he sought employment with someone who was “artistically inclined” as this was what he wanted to do after his retirement.

In calculating the level of compensation, I took into consideration the efforts of the Complainant to mitigate his losses as I am required to do by section 7(2)(c) of the Act.  I find that the Complainant’s efforts do not meet the standard set out by the Employment Appeals Tribunal in Sheehan v Continental Administration Co Ltd UD 858/1999 that a ‘claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.’

I find that during the time the Complainant was undertaking a full-time course, he was unavailable for work. Furthermore, there was no evidence whatsoever presented to me to show that the Complainant attempted to mitigate his loss in the periods from 18 August to 17 September 2023 and 17 April 2024 until the date of the hearing on 15 May 2024.

I find that the Complainant was unfairly dismissed and the complaint is well founded.

In all the circumstances of this case and owing to the failure of the Complainant to mitigate his loss, I award him compensation under the Acts in the amount of €990 i.e. four weeks’ pay.

Resignation – dismissal – failure to mitigate loss-