Complainant

Respondent

Parties

Thomas  Fingleton

Central Auctions Services Co-Operative Society Limited

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Lauren Tennyson B.L., instructed by   McInnes Dunne Murphy LLP

Matt Carroll B.L.,  Dairy Executives Association

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00054038-001

07/12/2022

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

CA-00054038-002

07/12/2022

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

CA-00054038-003

07/12/2022

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

CA-00054038-004

07/12/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant undertook to give his evidence under oath while a witness for the respondent undertook to give his evidence under affirmation.

Although there was reference to a dismissal date in December 2022, the complaint form submitted to the WRC refers only to the termination of the employment relationship as of 13 June 2022.  Therefore, this decision will only consider the circumstances of the end of the employment relationship as at that date.

CA-00054038-001 Unfair Dismissal

The respondent denied that it dismissed the complainant on 13 June 2022 and submitted that the complainant did not attend work from 14 June 2022 until he was dismissed under a procedurally fair process on 12 December 2022.  He was dismissed for abandonment of employment.

The respondent noted that a meeting took place between the parties on 13 June 2022 and that the CEO adjourned the meeting for the day.  Following this the complainant left the meeting and finished up work for the day. Later that afternoon, he wrote to the CEO seeking a written reference and alleging that he had been dismissed from his employment. The respondent submitted that it was appropriate and legitimate for the CEO to address performance and conduct issues with the complainant.

The respondent accepted that the meeting between the parties was robust but noted that the discussion was reasonable and was within the robustness threshold prescribed in the Supreme Court case of Una Ruffly v Board of Management of St Annes School[2017] IESC 33.

The respondent noted that the complainant submitted medical cert dated 14 June 2022 which covered a period of one week indicating that he continued to consider himself an employee during this. The respondent submitted however that the complainant continued to insist that he had been dismissed despite confirmation from the respondent that this was not the case. The respondent noted that it was fully prepared to engage in mediation. However, at no stage did the complainant nor his solicitor indicate that he either sought or intended to return to his job.

The respondent submitted that the complainant was only dismissed on 12 December 2022, a date that was notified to the Revenue Commissioners online system.

The respondent submitted that all aspects of the process were conducted in accordance with SI. 146 of 2000 and the employee handbook. The respondent noted that the complainant was made fully aware that his continued absence from work, together with his failure to give a commitment to return to work, would result in termination of his service for abandonment of employment. 

The respondent submitted that the complainants continued failure to give a commitment to return to work even with the assistance of professional mediation, indicated that he failed to engage with internal procedures as required and, in this regard, noted the decision of Edward Timmins v AB group packaging Ireland limited (ADJ-00030801).

CA-00054038-002 & 003 Notice

The respondent submitted that the complainant was given notice of his impending dismissal on 10 November 2022 and accordingly there was no breach of the legislation.  He was absent from work for the entire period of one month and therefore was not entitled to any payment in accordance with the legislation.

CA-00054038-004 Holiday Entitlement

The respondent submitted that at the date of his dismissal, the complainant had an entitlement to five days outstanding holidays which were due to him in accordance with the legislation. This was paid to him in the December 22 salary run.  The respondent noted that there was no accrual of holidays for the period when the compliant abandoned work from 14 June to 12 December 2022.

Witness evidence – the CEO

The witness noted that there had been a manual accounting system prior to the complainant starting his employment. He noted that prior to the performance review meeting they had a good working relationship. As regards the meeting in June 2022, he noted that there were a good few mistakes in the  complainants performance and he was disappointed. He noted that he was very firm at that meeting.

The witness outlined the annual leave taken by the complainant during 2022, noting that he had taken 5 days leave.  He provided the dates to the hearing.

He noted again that the meeting on 2 June was quite firm and that the matter was adjourned for discussion, it came for discussion again on 13 June. The witness noted that the meeting of 13 June was not fractious. He noted that the complainant wanted to work with him and agreed with most of what was said. The witness confirmed that he noted that trust had broken down between the parties and he noted that he said to the complainant to take the rest of the day off.

The witness noted that the complainant was visibly upset and asked whether he was being let go. The witness noted that the complainant said “could I ask for a reference”. He stated that he did not use the word dismissed either to say that the complainant was or that the complainant was not dismissed. He reiterated that the complainant was still the financial controller and that he never used the word dismissed.  He also noted that the complainant was operating his own private business online during working hours.

Under cross examination the witness noted that purchasing livestock was not an issue, but rather the large numbers being purchased were the issue.

The witness was also asked about annual leave. He noted that he asked the complainant for additional information and was provided with different versions of what holidays he took, noting that there was no consistent approach. He noted that he thought it was very unusual for someone to seek 1/3 of a day's holidays and questioned what exactly is 1/3 of a day was. When asked was there any performance improvement plan, he stated no that there wasn't.

It was put to the witness that the complainant said, “this sounds like you're letting me go” and he accepted that this was said in the second meeting. It was put to the witness that it sounded like he had already made-up his mind, but he replied that he had not. He clarified that the complainant simply had to mend his ways and be more attentive to his job. He noted that complainant paid himself more than he was supposed to and that he took more holidays than he was supposed to as well.

The witness confirmed that he never used the word dismissed and he never confirmed a dismissal. He did confirm that the complainant asked about reference and he also confirmed that he mentioned there was a breakdown in trust and that it was complainant's job to build it up again.

It was put to him that he never investigated any of the matters and he confirmed that there was no independent investigation. It was put to him that complainant was in shock and that he knew he was upset when he left.  The witness noted that “he must have thought he was being dismissed”.

It was put to the witness that nowhere did it say that the complainant was not dismissed or that his position was clarified for him. In the e-mail of 11 July it contained a phrase “at no point were you dismissed”.

Under redirect, it was put to the witness that the complainant was responsible for his own holidays and noted that there was a written policy requiring adequate notice. It was put to the witness that there was no provision for time off in lieu contained in the policy on holidays.  However he noted the time off in lieu may be applied for, but it must be sought in advance.

The witness clarified that the complainant may have been under the impression he was dismissed but he never used the word or said that he was dismissing him. The witness noted that he received no callback or text from the complainant in the days following this meeting.

CA-00054038-001 Unfair Dismissal

The complainant submitted that he was dismissed on 13 June 2022 without any valid reason nor procedures.  He noted that this followed a performance review.  The complainant submitted that he experienced the worst performance review meeting of his career. He was completely taken aback as the CEO shouted and cursed profanities at him for the duration of the review, for which he subsequently apologised.

The complainant submitted that the CEO informed him in an undermining and humiliating manner that his performance for the respondent had not been satisfactory and that he was “disappointed” in him.  The complainant submitted that the CEO produced a list of topics which he was “unhappy” about and proceeded to go through them.  Some of the items referred to things which had taken place prior to the complainant’s previous performance review over a year before and which were never raised either at his previous review or at any point before the review.  When he attempted to respond to the allegations being levelled against him, the CEO simply shouted over him, saying, “all I hear is excuses” and “you must think I’m stupid”.

The complainant submitted that he was completely dumbstruck by these goings on and had no prior warning of there being any issues with his performance during his tenure. The complainant noted that at no stage during the review did the CEO accuse the complainant of any allegations of wrongdoing or misconduct.  At the end of the review, the complainant said to the CRO, “this sounds like you’re letting me go”. The CEO simply responded, “let’s meet on Monday (13 June 2022), to give us both time to think”.

The complainant submitted that in the period following the review and until the follow-up meeting on 13 June 2022, the CEO was on partial annual leave. The complainant submitted that he was apprehensive about the meeting on 13 June 2022 but was hopeful that the CEO would be calmer as there had been no altercations in the two weeks’ prior to the 13th.

The complainant submitted that the meeting started and the complainant was afforded the opportunity to talk and discuss the issues that had been raised at the review. He stated that he had taken on board the issues that had been raised where he felt his work required better attention to detail and promised that he would work on same. The complainant said it had been a “steep learning curve” to do the 2021 audit when the respondent never had an accounting system in place, but now that he, the complainant, had established an accounting system, the correct controls were in place and should make things easier for everyone going forward. The CEO did not make any comment on the complainant’s points. Instead, he asked the complainant if he had “thought about his position in the company”. The complainant responded that he was “100% committed to the company and to the CEO”, that he was there to support him and share the workload and that he was working hard to have a half yearly set of accounts ready for early July.

The complainant submitted that he then asked the CEO what his opinion was on both the previous meeting and the meeting that day. The CEO was silent for a moment, then responded that he believed there had been “a breakdown in trust”. He then followed this by stating clearly to the complainant, “I am dismissing you”. The complainant submitted that he was shocked by this and asked the CEO to confirm that he was being let go. The CEO responded, “yes” and stated that he would provide the complainant with a reference as he believed that “every man or woman has the right to earn a living and I won’t get in the way of your future employment”.  The complainant meekly replied that he would get his things and go home, to which the CEO responded, “yes, you take the rest of the day off”.

The complainant submitted that following the meeting on 13 June 2022, he went home, as instructed, and emailed the CEO a follow-up email, stating, “Further to our meeting earlier where I was dismissed can you please confirm that you will provide me with a written reference?” He submitted that immediately following the meeting, he began to feel overwhelmed, anxious and panicked. He met with his doctor the next day who provided him with a sick certificate due to work-related stress in the event that the respondent was to insist on the complainant working out his notice period.

The complainant submitted that on 15 June 2022, after receiving no response from Mr Harty in relation to the Complainant’s email of 13 June 2021, he emailed again and attached the sick certificate. The complainant requested that the CEO respond to his email of 13 June 2022.

The complainant submitted that on 16 June 2022, he missed a call from the CEO on his personal phone to which he responded by email in the early afternoon. The complainant again referenced his dismissal, his work-related stress leave and request for a reference. He also stated that he was not in a position to take any calls or texts and requested that any communication should be done via email.

Despite his request for the CEO to correspond through email, the CEO sent an email on the afternoon of 16 June 2022 requesting that the complainant call him. The email provides: “I would be obliged if you could ring me to arrange a suitable convenient time for us to meet to discuss some items before I’m in a position to give you a reference/statement of employment”. The complainant did not feel it was appropriate to respond to this email right away.

The complainant submitted that despite the CEO’s clear and confirmed dismissal of the complainant on 13 June 2022 and his subsequent email on 16 June 2022, the complainant was astonished to receive another email on 20 June 2023 from the CEO stating that the meeting the previous week was “inconclusive and subject to further discussion before any outcome can be reached”. He did not respond to the email of 20 June 2022 as he believed that the meeting of 13 June 2022 and the subsequent correspondence over the following week made it abundantly clear that the respondent had dismissed him.

The complainant submitted that he received a subsequent email from the CEO on 28 June 2022 noting the complainant’s lack of response and asking the Complainant to “confirm the up-to-date position” as he had not provided a follow-up sick certificate. He responded to the email the following day, stating, “In respect of my dismissal on the 13th June I have engaged the services of an employment law solicitor and they will be contacting you on my behalf”.

The complainant submitted that on 11 July 2022 the CEO emailed him with an entirely fabricated version of events following the meeting of 13 June 2022. It was claimed that he never dismissed the complainant and that at the meeting, he merely shared feedback on recent performance issues.

The complainant submitted that recent case law from the WRC has indicated that an Adjudication Officer will look at whether it is reasonable for a complainant to form a view that they have been dismissed based on the words used to effect a dismissal and the subsequent actions of a respondent. In ADJ-00032505 Nigel Harris v Ronan Blanchfield Environmental Services Ltd, the Adjudication Officer found that it was reasonable for the complainant to form the view he had been dismissed following a verbal altercation with his senior manager, despite it subsequently being characterised as a lay-off. The Adjudication Officer took into account the fact that the complainant sought written clarification of his lay-off on two occasions but received no response. The Adjudication Officer also noted that it was clear to the respondent that the complainant believed he was no longer in employment and so it could have “phon(ed) the complainant thereafter to reassure the complainant that he remained in the employ of the respondent”. In the case at hand, it took over a week for the respondent to allege that it had not dismissed the complainant, despite correspondence between the parties clearly indicating it had.

The complainant submitted that in ADJ-00036884 Edward Monaghan v A McGuinness & Sons Limited, the Adjudication Officer found that it was reasonable for the complainant to believe that the respondent terminated his employment by phone call on Christmas Eve when the respondent told the complainant, “you’re always giving me trouble about money, it’s Christmas Eve, why don’t you just f**k off”. In the week following this dismissal, the complainant did not attend work and his father, who also worked for the respondent, handed in his notice. The respondent rang the complainant and asked the complainant to ask his father to come back to work and said that he would ring the complainant the next day to discuss the complainant’s job. However, the respondent never rang the complainant. The Adjudication Officer opined that if the complainant’s assertion that he had been dismissed was confined to the conversation on Christmas Eve, that alone would not be enough to allow him to reasonably believe he had been dismissed. However, the subsequent correspondence, i.e. the phone call regarding his father during which the complainant’s job was not discussed combined with the failure after of the respondent to contact the complainant, was enough for the Adjudication Officer to find there had been a dismissal and the complaint was well-founded.

The complainant submitted that in the case at hand, the respondent quite clearly dismissed the complainant and confirmed same by its words and action the subsequent week.

CA-00054038-002 & 003 Notice

The complainant submitted that he did not receive notice, nor any payment in lieu of notice as provided for under the legislation.

CA-00054038-004 Holiday Entitlement

The complainant submitted that he did not receive his holiday entitlement in accordance with the legislation.

Complainant evidence:

The complaint initially stated that his salary was €60,000 per annum, but later revised this down to €55,000. He was working as a financial controller. In early June 2022 a performance review was undertaken. This should have been undertaken in January. During the performance review there was an issue regarding the calculation of holidays, and he needed to make a presentation in a more presentable manner. He said that there was reference to carrying forward leave, but he doesn't have the numbers to hand.

The witness stated that he had overpaid himself in a previous period but that he had no problem paying it back.

The witness stated that respondents had not hired him to buy livestock and therefore his purchasing of such was not a conflict of interest. This meeting of 13 June was the first time the issue was raised.

The witness stated that the respondent questioned his ability as an accountant at that stage and noted that the CEO seems to be blaming everyone else for his mistakes, referencing another member of staff and a student. The witness stated that the CEO said, “a good accountant wouldn't have made that mistake”. The witness stated that there was nothing positive in the performance review and he said something along the lines of “it sounds like you're letting me go” to which the CEO responded, “let me think about it”.

With respect to the meeting of 13 June 2022, the witness stated that it took place in the morning time, and he started by saying that he was taken aback by the comments in the performance review, noting that he was disappointed in himself but mentioning that it was steep learning curve. He acknowledged that he was going to have to take control of things. He was asked had he thought about his position, and he said he had outlined his ongoing commitment to the work and to working with the CEO. He then asked the CEO what he thought.  The CEO noted that there had been a breakdown in trust and said that he was dismissing him. The complainant clarified by asking the CEO whether he was firing him and was told yes. He said that he would give a reference to the complainant as he wasn't going to stand in the way of anyone from getting another job. The complainant noted that he was told to take the rest of the day off.

The complainant stated that he sent an e-mail seeking confirmation of his dismissal and a reference. He got no response confirming his dismissal. The respondent rang him, but he didn't take the call instead letting it go to voicemail. He sent the CEO an e-mail indicating that he would only deal with the respondent by e-mail communication.

The complainant stated that the CEO had told him that there was a breakdown in trust and queried how he could come back after that. He noted that the allegation of abandonment of his position could not be further from the truth. The complainant conceded that five days of annual leave were paid over to him in December 2022.

As to mitigation of his loss, he noted that he applied for a named job in the end of September,he applied for a job in October and he applied for a job in November. He reached out to a recruiter in December and met with a director of a company. He applied for a job in January but was not called for interview. He noted that a big factor in all of this was not having a reference. He stated that he was involved in discussions about running and managing a Mart but unfortunately the finance aspect fell through, and this opportunity didn't pan out. A scaled down version of this was preceded with in August. He outlined some piece meal work that he did with on farm sales and Marts, noting that in this manner he was able to earn almost €8000.

He noted that he was also a sole trader in terms of beef operations but that it was not enough to support one income, noting that at best he was able to draw down €6000. He stated that he was not actively looking for work in February and March.

Under cross examination the witness noted that he owned 57 acres and rented out another 200 acres. He raised just over 200 cattle on the land. He stated that a lack of reference proved to be an obstacle to him finding alternative employment.

He noted that he had implemented a new accounting system for the respondent as prior to his employment there had been no accounting system in place, it had simply been prepared using excel spreadsheets. He noted that at the 2 June meeting he had no inkling of any difficulties although he felt under a lot of pressure though prior to that. He confirmed that he provided two different holiday records and he had updated records with a half a day's leave and that there had been time off in lieu. He noted that he had not informed the respondent but had set up the time off in lieu system himself.

It was put to the complainant that the VAT had been incorrectly calculated and that this was a massive mistake, particularly regarding the purchase of a company car. The complainant indicated that the auditor didn't pick up on that either. It was put to him that the payment of his salary was problematic too, and he noted he should have reviewed his contract of employment prior to setting up the wage system.

It was put to him that at the meeting of 13 June he was asked to give his reflections and asked for the respondents reflections. It was put to him that the respondent never mentioned dismissal, but the complainant stated yes he did in that when he asked are you firing me the CEO responded yes. He said he would need a reference, and was told to take the rest of the day off and to get his stuff.  He stated that he believed that he was dismissed at that point.

As regards the company property the complainant stated that he didn't remember that the key to the premises was on his house keys and he simply didn't think to not bring home the laptop. He had no access to the server and sent the laptop back later on in response to an e-mail.

It was noted that the witness sent an e-mail confirming his dismissal and seeking a reference within two hours of the meeting, but it was queried as to why he submitted a medical cert. The complainant noted that he was completely lost after being fired and he rang a doctor.  The doctor said to provide the medical cert to the employer.

The complainant said that there was no discussion of notice and that he noted that the CEO rang him a number of times during the week. It was put to the complainant that the CEO had made five attempts to contact him he confirmed that this was correct.

As regards holidays it was put to the complainant that nothing was formally discussed regarding leaving new option and that he was paid the outstanding 5 days holidays in December 2022.

CA-00054038-001 Unfair Dismissal

Although there is some difference of opinion between the parties as to the dismissal, I note that the respondent conceded that the complainant may have considered himself dismissed when he left the meeting of 13 June 2022. The meeting was robust and fractious, and issues of poor performance were raised. The complaint does not revolve around how robust the meeting was or otherwise, as the parties are in agreement that the phrase “breakdown in trust” was used by the respondent towards the end of the period. The parties are in agreement that the complainant enquired if he was fired and although they differ as to what the response was, the is no dispute between the parties that this was in the mind of the complainant.  The parties are also in agreement that they had a discussion about the provision of a reference.  Despite a number of queries to the respondent in the intervening period, it did not seek to challenge the complainant’s contention that he had been dismissed or to clarify the issue until sometime in July, between three and four weeks later.  

Both the complainant and the respondent witness came across as reasonably credible.  However, although the CEO witness stated that he never used the word dismissed, the complainant asked if that meant that he was fired, and the CEO did not indicate that this was not the case.

Having considered the evidence from both witnesses, on balance, I find the fact of a dismissal as a 13 June 2022 has been established. The parties are in agreement that no procedures were followed in relation to the dismissal on that date, therefore I find that the complainant was unfairly dismissed with effect from 13 June 2022.

The complainant assessed his total losses for the year to be €51,500.  As regards his attempts to mitigate his loss, the complainant made some limited attempts to find alternative employment and earned €7950 from some piecemeal work. He also noted that he was always operating a sole tradership, involved in the purchase of cattle, and noted that he had tried to increase his income from the point of his dismissal. He submitted that €6000 of drawings were taken from this business during the period. That leaves a loss of €37,550

The complainant noted that he did not make any efforts to find employment during February and March 2023, two months out of the 12-month period that elapsed before he found another position. One sixth of the losses amounts to €8583 and his losses are varied downwards by this amount.

It was submitted by the complainant that the lack of a reference from his former employer hampered his efforts to secure alternative employment.  Although I accept that the lack of a reference may have curtailed the complainants’ options when seeking employment, it initially appears that he only applied for one position per month.  However, when the piecemeal work is taken into account, together with the complainants’ efforts to increase his trading and his documented job search, I am satisfied that he made reasonable efforts to seek alternative employment.  Accordingly, I find that his loss amounts to €28,967

CA-00054038-002 & 003 Notice

The parties are in agreement that the complainant was not provided with notice. He was employed for more than two years with the respondent.  Section 4(1) and (2)(b) of the Minimum Notice and Terms of Information Act states:

4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

Accordingly, I am satisfied that complaint is well founded and that the Act has been contravened. The employee was entitled to two weeks’ notice, i.e. €2115.38

CA-00054038-004 Holiday Entitlement

The complainant was dismissed on 13 June 2022 and had built up a holiday entitlement of 10 days.  The respondent provided the dates of the five days leave taken by the complainant.  The complainant acknowledged that he was paid an additional five days leave in December 2022.  Having regard to all the written and oral evidence submitted in relation to this complaint, I find that the complainant has not established that the Act was contravened.

CA-00054038-001 Unfair Dismissal

Having regard to all the written and oral evidence submitted in relation to this complaint, my decision is that the complainant was unfairly dismissed.  The complainant incurred a loss of €28,967 and I direct the respondent to pay the complainant compensation of this amount which I consider to be just and equitable in all the circumstances.

CA-00054038-002 & 003 Notice

Having regard to all the written and oral evidence submitted in relation to this complaint, my decision is that the Act was contravened, and I direct the respondent to pay the complainant compensation for the loss of €2115.38

CA-00054038-004 Holiday Entitlement

Having regard to all the written and oral evidence submitted in relation to this complaint, my decision is that the Act was not contravened.

Unfair dismissal – dismissal established – compensation awarded – Notice Period – no notice given – compensation awarded – holidays – no contravention established

Complainant

Respondent

Parties

Thomas  Fingleton

Central Auctions Services Co-Operative Society Limited

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Lauren Tennyson B.L., instructed by   McInnes Dunne Murphy LLP

Matt Carroll B.L.,  Dairy Executives Association

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00054038-001

07/12/2022

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

CA-00054038-002

07/12/2022

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

CA-00054038-003

07/12/2022

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

CA-00054038-004

07/12/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant undertook to give his evidence under oath while a witness for the respondent undertook to give his evidence under affirmation.

Although there was reference to a dismissal date in December 2022, the complaint form submitted to the WRC refers only to the termination of the employment relationship as of 13 June 2022.  Therefore, this decision will only consider the circumstances of the end of the employment relationship as at that date.

CA-00045038-001 Unfair Dismissal

The respondent denied that it dismissed the complainant on 13 June 2022 and submitted that the complainant did not attend work from 14 June 2022 until he was dismissed under a procedurally fair process on 12 December 2022.  He was dismissed for abandonment of employment.

The respondent noted that a meeting took place between the parties on 13 June 2022 and that the CEO adjourned the meeting for the day.  Following this the complainant left the meeting and finished up work for the day. Later that afternoon, he wrote to the CEO seeking a written reference and alleging that he had been dismissed from his employment. The respondent submitted that it was appropriate and legitimate for the CEO to address performance and conduct issues with the complainant.

The respondent accepted that the meeting between the parties was robust but noted that the discussion was reasonable and was within the robustness threshold prescribed in the Supreme Court case of Una Ruffly v Board of Management of St Annes School[2017] IESC 33.

The respondent noted that the complainant submitted medical cert dated 14 June 2022 which covered a period of one week indicating that he continued to consider himself an employee during this. The respondent submitted however that the complainant continued to insist that he had been dismissed despite confirmation from the respondent that this was not the case. The respondent noted that it was fully prepared to engage in mediation. However, at no stage did the complainant nor his solicitor indicate that he either sought or intended to return to his job.

The respondent submitted that the complainant was only dismissed on 12 December 2022, a date that was notified to the Revenue Commissioners online system.

The respondent submitted that all aspects of the process were conducted in accordance with SI. 146 of 2000 and the employee handbook. The respondent noted that the complainant was made fully aware that his continued absence from work, together with his failure to give a commitment to return to work, would result in termination of his service for abandonment of employment. 

The respondent submitted that the complainants continued failure to give a commitment to return to work even with the assistance of professional mediation, indicated that he failed to engage with internal procedures as required and, in this regard, noted the decision of Edward Timmins v AB group packaging Ireland limited (ADJ-00030801).

CA-00045038-002 & 003 Notice

The respondent submitted that the complainant was given notice of his impending dismissal on 10 November 2022 and accordingly there was no breach of the legislation.  He was absent from work for the entire period of one month and therefore was not entitled to any payment in accordance with the legislation.

CA-00045038-004 Holiday Entitlement

The respondent submitted that at the date of his dismissal, the complainant had an entitlement to five days outstanding holidays which were due to him in accordance with the legislation. This was paid to him in the December 22 salary run.  The respondent noted that there was no accrual of holidays for the period when the compliant abandoned work from 14 June to 12 December 2022.

Witness evidence – the CEO

The witness noted that there had been a manual accounting system prior to the complainant starting his employment. He noted that prior to the performance review meeting they had a good working relationship. As regards the meeting in June 2022, he noted that there were a good few mistakes in the  complainants performance and he was disappointed. He noted that he was very firm at that meeting.

The witness outlined the annual leave taken by the complainant during 2022, noting that he had taken 5 days leave.  He provided the dates to the hearing.

He noted again that the meeting on 2 June was quite firm and that the matter was adjourned for discussion, it came for discussion again on 13 June. The witness noted that the meeting of 13 June was not fractious. He noted that the complainant wanted to work with him and agreed with most of what was said. The witness confirmed that he noted that trust had broken down between the parties and he noted that he said to the complainant to take the rest of the day off.

The witness noted that the complainant was visibly upset and asked whether he was being let go. The witness noted that the complainant said “could I ask for a reference”. He stated that he did not use the word dismissed either to say that the complainant was or that the complainant was not dismissed. He reiterated that the complainant was still the financial controller and that he never used the word dismissed.  He also noted that the complainant was operating his own private business online during working hours.

Under cross examination the witness noted that purchasing livestock was not an issue, but rather the large numbers being purchased were the issue.

The witness was also asked about annual leave. He noted that he asked the complainant for additional information and was provided with different versions of what holidays he took, noting that there was no consistent approach. He noted that he thought it was very unusual for someone to seek 1/3 of a day's holidays and questioned what exactly is 1/3 of a day was. When asked was there any performance improvement plan, he stated no that there wasn't.

It was put to the witness that the complainant said, “this sounds like you're letting me go” and he accepted that this was said in the second meeting. It was put to the witness that it sounded like he had already made-up his mind, but he replied that he had not. He clarified that the complainant simply had to mend his ways and be more attentive to his job. He noted that complainant paid himself more than he was supposed to and that he took more holidays than he was supposed to as well.

The witness confirmed that he never used the word dismissed and he never confirmed a dismissal. He did confirm that the complainant asked about reference and he also confirmed that he mentioned there was a breakdown in trust and that it was complainant's job to build it up again.

It was put to him that he never investigated any of the matters and he confirmed that there was no independent investigation. It was put to him that complainant was in shock and that he knew he was upset when he left.  The witness noted that “he must have thought he was being dismissed”.

It was put to the witness that nowhere did it say that the complainant was not dismissed or that his position was clarified for him. In the e-mail of 11 July it contained a phrase “at no point were you dismissed”.

Under redirect, it was put to the witness that the complainant was responsible for his own holidays and noted that there was a written policy requiring adequate notice. It was put to the witness that there was no provision for time off in lieu contained in the policy on holidays.  However he noted the time off in lieu may be applied for, but it must be sought in advance.

The witness clarified that the complainant may have been under the impression he was dismissed but he never used the word or said that he was dismissing him. The witness noted that he received no callback or text from the complainant in the days following this meeting.

CA-00045038-001 Unfair Dismissal

The complainant submitted that he was dismissed on 13 June 2022 without any valid reason nor procedures.  He noted that this followed a performance review.  The complainant submitted that he experienced the worst performance review meeting of his career. He was completely taken aback as the CEO shouted and cursed profanities at him for the duration of the review, for which he subsequently apologised.

The complainant submitted that the CEO informed him in an undermining and humiliating manner that his performance for the respondent had not been satisfactory and that he was “disappointed” in him.  The complainant submitted that the CEO produced a list of topics which he was “unhappy” about and proceeded to go through them.  Some of the items referred to things which had taken place prior to the complainant’s previous performance review over a year before and which were never raised either at his previous review or at any point before the review.  When he attempted to respond to the allegations being levelled against him, the CEO simply shouted over him, saying, “all I hear is excuses” and “you must think I’m stupid”.

The complainant submitted that he was completely dumbstruck by these goings on and had no prior warning of there being any issues with his performance during his tenure. The complainant noted that at no stage during the review did the CEO accuse the complainant of any allegations of wrongdoing or misconduct.  At the end of the review, the complainant said to the CRO, “this sounds like you’re letting me go”. The CEO simply responded, “let’s meet on Monday (13 June 2022), to give us both time to think”.

The complainant submitted that in the period following the review and until the follow-up meeting on 13 June 2022, the CEO was on partial annual leave. The complainant submitted that he was apprehensive about the meeting on 13 June 2022 but was hopeful that the CEO would be calmer as there had been no altercations in the two weeks’ prior to the 13th.

The complainant submitted that the meeting started and the complainant was afforded the opportunity to talk and discuss the issues that had been raised at the review. He stated that he had taken on board the issues that had been raised where he felt his work required better attention to detail and promised that he would work on same. The complainant said it had been a “steep learning curve” to do the 2021 audit when the respondent never had an accounting system in place, but now that he, the complainant, had established an accounting system, the correct controls were in place and should make things easier for everyone going forward. The CEO did not make any comment on the complainant’s points. Instead, he asked the complainant if he had “thought about his position in the company”. The complainant responded that he was “100% committed to the company and to the CEO”, that he was there to support him and share the workload and that he was working hard to have a half yearly set of accounts ready for early July.

The complainant submitted that he then asked the CEO what his opinion was on both the previous meeting and the meeting that day. The CEO was silent for a moment, then responded that he believed there had been “a breakdown in trust”. He then followed this by stating clearly to the complainant, “I am dismissing you”. The complainant submitted that he was shocked by this and asked the CEO to confirm that he was being let go. The CEO responded, “yes” and stated that he would provide the complainant with a reference as he believed that “every man or woman has the right to earn a living and I won’t get in the way of your future employment”.  The complainant meekly replied that he would get his things and go home, to which the CEO responded, “yes, you take the rest of the day off”.

The complainant submitted that following the meeting on 13 June 2022, he went home, as instructed, and emailed the CEO a follow-up email, stating, “Further to our meeting earlier where I was dismissed can you please confirm that you will provide me with a written reference?” He submitted that immediately following the meeting, he began to feel overwhelmed, anxious and panicked. He met with his doctor the next day who provided him with a sick certificate due to work-related stress in the event that the respondent was to insist on the complainant working out his notice period.

The complainant submitted that on 15 June 2022, after receiving no response from Mr Harty in relation to the Complainant’s email of 13 June 2021, he emailed again and attached the sick certificate. The complainant requested that the CEO respond to his email of 13 June 2022.

The complainant submitted that on 16 June 2022, he missed a call from the CEO on his personal phone to which he responded by email in the early afternoon. The complainant again referenced his dismissal, his work-related stress leave and request for a reference. He also stated that he was not in a position to take any calls or texts and requested that any communication should be done via email.

Despite his request for the CEO to correspond through email, the CEO sent an email on the afternoon of 16 June 2022 requesting that the complainant call him. The email provides: “I would be obliged if you could ring me to arrange a suitable convenient time for us to meet to discuss some items before I’m in a position to give you a reference/statement of employment”. The complainant did not feel it was appropriate to respond to this email right away.

The complainant submitted that despite the CEO’s clear and confirmed dismissal of the complainant on 13 June 2022 and his subsequent email on 16 June 2022, the complainant was astonished to receive another email on 20 June 2023 from the CEO stating that the meeting the previous week was “inconclusive and subject to further discussion before any outcome can be reached”. He did not respond to the email of 20 June 2022 as he believed that the meeting of 13 June 2022 and the subsequent correspondence over the following week made it abundantly clear that the respondent had dismissed him.

The complainant submitted that he received a subsequent email from the CEO on 28 June 2022 noting the complainant’s lack of response and asking the Complainant to “confirm the up-to-date position” as he had not provided a follow-up sick certificate. He responded to the email the following day, stating, “In respect of my dismissal on the 13th June I have engaged the services of an employment law solicitor and they will be contacting you on my behalf”.

The complainant submitted that on 11 July 2022 the CEO emailed him with an entirely fabricated version of events following the meeting of 13 June 2022. It was claimed that he never dismissed the complainant and that at the meeting, he merely shared feedback on recent performance issues.

The complainant submitted that recent case law from the WRC has indicated that an Adjudication Officer will look at whether it is reasonable for a complainant to form a view that they have been dismissed based on the words used to effect a dismissal and the subsequent actions of a respondent. In ADJ-00032505 Nigel Harris v Ronan Blanchfield Environmental Services Ltd, the Adjudication Officer found that it was reasonable for the complainant to form the view he had been dismissed following a verbal altercation with his senior manager, despite it subsequently being characterised as a lay-off. The Adjudication Officer took into account the fact that the complainant sought written clarification of his lay-off on two occasions but received no response. The Adjudication Officer also noted that it was clear to the respondent that the complainant believed he was no longer in employment and so it could have “phon(ed) the complainant thereafter to reassure the complainant that he remained in the employ of the respondent”. In the case at hand, it took over a week for the respondent to allege that it had not dismissed the complainant, despite correspondence between the parties clearly indicating it had.

The complainant submitted that in ADJ-00036884 Edward Monaghan v A McGuinness & Sons Limited, the Adjudication Officer found that it was reasonable for the complainant to believe that the respondent terminated his employment by phone call on Christmas Eve when the respondent told the complainant, “you’re always giving me trouble about money, it’s Christmas Eve, why don’t you just f**k off”. In the week following this dismissal, the complainant did not attend work and his father, who also worked for the respondent, handed in his notice. The respondent rang the complainant and asked the complainant to ask his father to come back to work and said that he would ring the complainant the next day to discuss the complainant’s job. However, the respondent never rang the complainant. The Adjudication Officer opined that if the complainant’s assertion that he had been dismissed was confined to the conversation on Christmas Eve, that alone would not be enough to allow him to reasonably believe he had been dismissed. However, the subsequent correspondence, i.e. the phone call regarding his father during which the complainant’s job was not discussed combined with the failure after of the respondent to contact the complainant, was enough for the Adjudication Officer to find there had been a dismissal and the complaint was well-founded.

The complainant submitted that in the case at hand, the respondent quite clearly dismissed the complainant and confirmed same by its words and action the subsequent week.

CA-00045038-002 & 003 Notice

The complainant submitted that he did not receive notice, nor any payment in lieu of notice as provided for under the legislation.

CA-00045038-004 Holiday Entitlement

The complainant submitted that he did not receive his holiday entitlement in accordance with the legislation.

Complainant evidence:

The complaint initially stated that his salary was €60,000 per annum, but later revised this down to €55,000. He was working as a financial controller. In early June 2022 a performance review was undertaken. This should have been undertaken in January. During the performance review there was an issue regarding the calculation of holidays, and he needed to make a presentation in a more presentable manner. He said that there was reference to carrying forward leave, but he doesn't have the numbers to hand.

The witness stated that he had overpaid himself in a previous period but that he had no problem paying it back.

The witness stated that respondents had not hired him to buy livestock and therefore his purchasing of such was not a conflict of interest. This meeting of 13 June was the first time the issue was raised.

The witness stated that the respondent questioned his ability as an accountant at that stage and noted that the CEO seems to be blaming everyone else for his mistakes, referencing another member of staff and a student. The witness stated that the CEO said, “a good accountant wouldn't have made that mistake”. The witness stated that there was nothing positive in the performance review and he said something along the lines of “it sounds like you're letting me go” to which the CEO responded, “let me think about it”.

With respect to the meeting of 13 June 2022, the witness stated that it took place in the morning time, and he started by saying that he was taken aback by the comments in the performance review, noting that he was disappointed in himself but mentioning that it was steep learning curve. He acknowledged that he was going to have to take control of things. He was asked had he thought about his position, and he said he had outlined his ongoing commitment to the work and to working with the CEO. He then asked the CEO what he thought.  The CEO noted that there had been a breakdown in trust and said that he was dismissing him. The complainant clarified by asking the CEO whether he was firing him and was told yes. He said that he would give a reference to the complainant as he wasn't going to stand in the way of anyone from getting another job. The complainant noted that he was told to take the rest of the day off.

The complainant stated that he sent an e-mail seeking confirmation of his dismissal and a reference. He got no response confirming his dismissal. The respondent rang him, but he didn't take the call instead letting it go to voicemail. He sent the CEO an e-mail indicating that he would only deal with the respondent by e-mail communication.

The complainant stated that the CEO had told him that there was a breakdown in trust and queried how he could come back after that. He noted that the allegation of abandonment of his position could not be further from the truth. The complainant conceded that five days of annual leave were paid over to him in December 2022.

As to mitigation of his loss, he noted that he applied for a named job in the end of September,he applied for a job in October and he applied for a job in November. He reached out to a recruiter in December and met with a director of a company. He applied for a job in January but was not called for interview. He noted that a big factor in all of this was not having a reference. He stated that he was involved in discussions about running and managing a Mart but unfortunately the finance aspect fell through, and this opportunity didn't pan out. A scaled down version of this was preceded with in August. He outlined some piece meal work that he did with on farm sales and Marts, noting that in this manner he was able to earn almost €8000.

He noted that he was also a sole trader in terms of beef operations but that it was not enough to support one income, noting that at best he was able to draw down €6000. He stated that he was not actively looking for work in February and March.

Under cross examination the witness noted that he owned 57 acres and rented out another 200 acres. He raised just over 200 cattle on the land. He stated that a lack of reference proved to be an obstacle to him finding alternative employment.

He noted that he had implemented a new accounting system for the respondent as prior to his employment there had been no accounting system in place, it had simply been prepared using excel spreadsheets. He noted that at the 2 June meeting he had no inkling of any difficulties although he felt under a lot of pressure though prior to that. He confirmed that he provided two different holiday records and he had updated records with a half a day's leave and that there had been time off in lieu. He noted that he had not informed the respondent but had set up the time off in lieu system himself.

It was put to the complainant that the VAT had been incorrectly calculated and that this was a massive mistake, particularly regarding the purchase of a company car. The complainant indicated that the auditor didn't pick up on that either. It was put to him that the payment of his salary was problematic too, and he noted he should have reviewed his contract of employment prior to setting up the wage system.

It was put to him that at the meeting of 13 June he was asked to give his reflections and asked for the respondents reflections. It was put to him that the respondent never mentioned dismissal, but the complainant stated yes he did in that when he asked are you firing me the CEO responded yes. He said he would need a reference, and was told to take the rest of the day off and to get his stuff.  He stated that he believed that he was dismissed at that point.

As regards the company property the complainant stated that he didn't remember that the key to the premises was on his house keys and he simply didn't think to not bring home the laptop. He had no access to the server and sent the laptop back later on in response to an e-mail.

It was noted that the witness sent an e-mail confirming his dismissal and seeking a reference within two hours of the meeting, but it was queried as to why he submitted a medical cert. The complainant noted that he was completely lost after being fired and he rang a doctor.  The doctor said to provide the medical cert to the employer.

The complainant said that there was no discussion of notice and that he noted that the CEO rang him a number of times during the week. It was put to the complainant that the CEO had made five attempts to contact him he confirmed that this was correct.

As regards holidays it was put to the complainant that nothing was formally discussed regarding leaving new option and that he was paid the outstanding 5 days holidays in December 2022.

CA-00045038-001 Unfair Dismissal

Although there is some difference of opinion between the parties as to the dismissal, I note that the respondent conceded that the complainant may have considered himself dismissed when he left the meeting of 13 June 2022. The meeting was robust and fractious, and issues of poor performance were raised. The complaint does not revolve around how robust the meeting was or otherwise, as the parties are in agreement that the phrase “breakdown in trust” was used by the respondent towards the end of the period. The parties are in agreement that the complainant enquired if he was fired and although they differ as to what the response was, the is no dispute between the parties that this was in the mind of the complainant.  The parties are also in agreement that they had a discussion about the provision of a reference.  Despite a number of queries to the respondent in the intervening period, it did not seek to challenge the complainant’s contention that he had been dismissed or to clarify the issue until sometime in July, between three and four weeks later.   

Both the complainant and the respondent witness came across as reasonably credible.  However, although the CEO witness stated that he never used the word dismissed, the complainant asked if that meant that he was fired, and the CEO did not indicate that this was not the case.

Having considered the evidence from both witnesses, on balance, I find the fact of a dismissal as a 13 June 2022 has been established. The parties are in agreement that no procedures were followed in relation to the dismissal on that date, therefore I find that the complainant was unfairly dismissed with effect from 13 June 2022.

The complainant assessed his total losses for the year to be €51,500.  As regards his attempts to mitigate his loss, the complainant made some limited attempts to find alternative employment and earned €7950 from some piecemeal work. He also noted that he was always operating a sole tradership, involved in the purchase of cattle, and noted that he had tried to increase his income from the point of his dismissal. He submitted that €6000 of drawings were taken from this business during the period. That leaves a loss of €37,550

The complainant noted that he did not make any efforts to find employment during February and March 2023, two months out of the 12-month period that elapsed before he found another position. One sixth of the losses amounts to €8583 and his losses are varied downwards by this amount.

It was submitted by the complainant that the lack of a reference from his former employer hampered his efforts to secure alternative employment.  Although I accept that the lack of a reference may have curtailed the complainants’ options when seeking employment, it initially appears that he only applied for one position per month.  However, when the piecemeal work is taken into account, together with the complainants’ efforts to increase his trading and his documented job search, I am satisfied that he made reasonable efforts to seek alternative employment.  Accordingly, I find that his loss amounts to €28,967

CA-00045038-002 & 003 Notice

The parties are in agreement that the complainant was not provided with notice. He was employed for more than two years with the respondent.  Section 4(1) and (2)(b) of the Minimum Notice and Terms of Information Act states:

4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

Accordingly, I am satisfied that complaint is well founded and that the Act has been contravened. The employee was entitled to two weeks’ notice, i.e. €2115.38

CA-00045038-004 Holiday Entitlement

The complainant was dismissed on 13 June 2022 and had built up a holiday entitlement of 10 days.  The respondent provided the dates of the five days leave taken by the complainant.  The complainant acknowledged that he was paid an additional five days leave in December 2022.  Having regard to all the written and oral evidence submitted in relation to this complaint, I find that the complainant has not established that the Act was contravened.

CA-00045038-001 Unfair Dismissal

Having regard to all the written and oral evidence submitted in relation to this complaint, my decision is that the complainant was unfairly dismissed.  The complainant incurred a loss of €28,967 and I direct the respondent to pay the complainant compensation of this amount which I consider to be just and equitable in all the circumstances.

CA-00045038-002 & 003 Notice

Having regard to all the written and oral evidence submitted in relation to this complaint, my decision is that the Act was contravened, and I direct the respondent to pay the complainant compensation for the loss of €2115.38

CA-00045038-004 Holiday Entitlement

Having regard to all the written and oral evidence submitted in relation to this complaint, my decision is that the Act was not contravened.

Unfair dismissal – dismissal established – compensation awarded – Notice Period – no notice given – compensation awarded – holidays – no contravention established