Complainant

Respondent

Parties

Billy  McCarthy

Piltown Engineering Limited Piltown Engineering Ltd

Representatives

Cathy McGrady B.L instructed by Farrell McElwee Solicitors LLP

 Joseph Bradley B.L. instructed by Ormonde 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-00063825-001

29/05/2024

The complainant noted that the fact of dismissal was in dispute but denies that he resigned and says that the evidence shows that he was dismissed. He says there were no substantial grounds to justify the dismissal, and no obligation falls on the complainant to establish a prima facie case of unfair dismissal.

The complainant commenced employment in January 2023 as a general operative subject to a probation period of 26 weeks which he successfully passed. There was a practice of holding annual reviews and the complainant says that he was due such a review in April 2024 and was not given to understand anything to the contrary

In April, not having had his review, and being aware that his colleagues had, he raised this with his supervisor Mr. Furman. He then met Ms Hogan, the Managing Director and was told that he would have to wait for his review.

While he was disappointed with this, he accepted it and was not, as has been alleged, agitated or disgruntled. However, he did leave feeling deflated.

He was then absent on sick leave on April 19th and 22nd and returned to work on the April 23rd.

On doing so he discovered that his clock in card had been removed from the clock-in station, so he began to work anyway. About thirty minutes later he was approached by the managing director in an aggressive manner, and she called him to a meeting in her office.

She intimidated him, shouting at him about his absence and was not calm during the meeting as has been asserted in the respondent’s submission. Ms Hogan said to him that she did not want him to work there anymore and told him to leave. She continued in an intimidating manner and pursued him around the factory as he collected his belongings.

She followed him to his car where she continued to shout at him instructing him to leave the complainant has been denied access to CCTV coverage of the incident.

The complainant heard nothing further from the employer and in the hope of resolving matters contacted his supervisor on April 29th requesting a meeting to discuss what had happened on April 23rd. On foot of this he was invited to a meeting on April 30th to take place on May 1st.

During this meeting he was told that there was no future for him in the company and he was asked to sign a letter of resignation which he refused to do.

He confirms that he did not resign during this meeting and on the contrary outlined his need to work for family reasons. He did attend the premises on May 2nd as there was a query about his pay slip. Once this was resolved he left.

Having not had his dismissal confirmed he attended again on May 7th to be told that he no longer worked there.

Evidence of complainant

The complainant gave evidence on affirmation.

He set out details of his employment with the respondent noting that he had been made permanent in September 2023 and his wages increased from €15 to €16 per hour. He said he was told that he would be a supervisor and have a role in training colleagues etc.

In due course he stated that he expected his annual review to cover all areas of his work and when he became aware in March or April of 2024 that colleagues were having their performance review, he became concerned that he was not.

He expected that his would take place but was told to wait and that it would take place in a few days. On April the 18th he spoke to his supervisor Derek Furman who arranged a meeting the following day with the managing director, Ms Kate Hogan.

She told him that she did not know how to assess his role and did not have the information she needed to do so. He wanted to know his career prospects and says he felt unwanted.

He went on sick leave on April the 19th (Friday) and 22nd (Monday) experiencing severe stomach pain and headaches.

On April 23rd he returned to work and on arrival discovered that his ‘clock-in’ card was missing from its usual place. He proceeded to his workstation and after about half an hour was approached by Ms Hogan, Managing Director.

She invited him to the office, and they had a brief exchange about the missing ‘clock in’ card.

She then raised the issue of his absence in an aggressive manner, specifically in relation to his not having contacted the company to explain why.

He says this then became the main topic of the conversation and Ms Hogan connected this to the wage issue and performance review. She told him that there was no work for him anymore and that he needed to leave the premises.

She followed him to his car screaming at him to leave. On April 29th he sent an e-mail to his supervisor Mr. Furman inquiring about his position and was invited to a meeting on May 1st at 2:30.

At that meeting he said he was again told that there was no job for him, and she offered to draw up a letter of resignation and suggested twice that he sign it. The meeting ended with Ms Hogan saying there was no work for him, and the complainant requested that in writing but did not get anything. He says he was not aggressive in any way at the May 1st meeting and was deflated not agitated.

The following day he attended again in relation to his wages, and he also attended the workplace again on May 7th.

In cross examination he agreed that he had an issue with pay and raised it with Mr. Furman and he also had an issue with the fact that he had not been assessed as part of the performance review.

He wanted clarity on his position and to know where he stood in relation to his role. He had been told that it would depend on other inputs and that he was to continue doing what he was doing.

He confirmed that nothing had been said at that meeting regarding his position being at risk. He did give Ms Hogan a medical certificate on his return to work but agreed that he had not notified the company of his absence which must be by telephone and not text. He also agreed that he understood that a return to work interview would happen, but he did not understand that his meeting with Ms Hogan on April 23rd was a return to work interview.

She had approached him about the clock in card. He also agreed that nothing had arisen in relation to a proposed termination of his employment at that meeting but disputed that the meeting was about his wages; it was primarily about the absence.

He also confirmed that Ms Hogan told him she felt intimidated and asked him to leave the building. Initially there had been no question of any dismissal but Ms Hogan ‘chased him’ around the business and into the car park.

So, the meeting escalated, and he was ‘run from the building’ and did not return to work.

He did not agree that the meeting on May 1st was a continuation of the return to work interview, and he agreed that he did say that he did not want to work there after being treated as he had been on 23rd.

However, he said he had no intention of resigning. He accepted that he had made a job application for another job on April the 23rd but he had no intention of leaving nor was he intending to resign on May 1st.

He also agreed that he did not initiate any grievance, nor did he appeal the decision regarding the performance review because he felt he had no options for appeal.

In response to redirect from his own Counsel the complainant advised that he had no phone to enable contact with the respondent due to it having had an accident at work.

He also confirmed that he requested CCTV footage of the incident on the 23rd but that this was not provided.

(At the conclusion of the hearing the complainant gave evidence of his efforts to mitigate his losses which are considered below)

Legal Submission

The complainant was dismissed on April 23rd, 2024, when Ms Hogan told him to leave. If there was any ambiguity about that, his dismissal was confirmed when he sought a meeting on May 1st, 2024, and again requested to return to work on May 7th, 2024.

In “Redmond on Dismissal Law in Ireland,” second Edition, the author, Desmond Ryan BL, states:

“In general, a person is dismissed when the employer informs him clearly and unequivocally that contract is at an end or if the circumstances leading to a dismissal was intended or may reasonably be inferred as having been intended….”

The fact of dismissal was clearly and unequivocally intended and/or may be reasonably inferred as set out above. Seeking a meeting by email of April 29th, 2024, and in even seeking to return to work on 7 May 2024, is inconsistent with the assertion that the complainant resigned.

The case of Connemara Marble Industries Limited v AnneMarie Lally (Determination UD 2028) is relied upon by the Respondent but is in fact of more assistance to the Complainant’s claim. The Labour Court in that case held that:

It seems clear to the Court that Ms. Keating acted in the heat of the moment. It is axiomatic that people are considerably less reasonable when angry and that, had Ms. Keating taken time to reflect, it is most likely that she would not have dismissed the Complainant on that, rather fraught, occasion.

It follows, therefore, that the Respondent’s actions were not reasonable, and that the dismissal is unfair and contrary to the provisions of the Acts.

In the case of Parkboro Developments Limited t/a Park Engineering v Mariusz Witkowski Determination UD2338 the Labour Court held that it was reasonable for the complainant to conclude that he had been dismissed when he was told to do whatever he liked, in response to asking if he should go home. In finding that the Complainant was unfairly dismissed, the Court also had regard to the fact that it was the Complainant who initiated a call thereafter and that the Respondent did not seek to contact the Complainant in the subsequent days. The Court stated:

Complainant asked if he should go home and was twice told to do whatever he liked and that it was a reasonable interpretation of this exchange for the Complainant to conclude that he was dismissed. The Respondent never subsequently initiated direct contact with him to re-assure him that he had not been dismissed until the Complainant sought the assistance of his then former employer with a social welfare application, at which point such assistance was refused. The Court determines that the Complainant was dismissed on 16 August 2017 for the reasons set out above.

The Complainant relies on the entirety of the Parkboro decision aforesaid. He was told to leave on April 23rd, 2024.It was reasonable for him to conclude that he was dismissed, although he later sought for the respondent to reverse this position.

If the Respondent had not dismissed the Complainant, there was ample opportunity for the situation to be clarified. However, following the exchange of 23 April, there was no contact from the Respondent until the Complainant, by email of 29 April 2024, sought a meeting. It was only on foot of this contact from the Complainant that the meeting of 1 May 2024 was scheduled.

The Complainant did not want to lose his job and the fact that he requested this meeting is inconsistent with any motivation to resign. He again sought to return to his job on 7 May 2024, which is further evidence that he wished to continue working there.

In light of the foregoing, that facts have been established, from which the Adjudication Officer can determine that a dismissal occurred. Once it is established that he was dismissed, it follows that the dismissal was an unfair dismissal within the meaning of the Unfair Dismissals Acts.

The Complainant was never notified that his employment was under threat or of any reasons justifying his dismissal. It appears from the Respondent’s submission that the Complainant’s attendance was under review.  If that is the case, he was not aware and was not given an opportunity to reply, although it indicates that the respondent was secretively dissatisfied with the Complainant.

It is well established that a fundamental tenet of fair procedures requires an accused to be provided with the details of the allegation against them and given an opportunity to respond. This very basic requirement of fair procedures was utterly denied to the Complainant herein.

Furthermore, he was not given notice of a disciplinary hearing. He was not invited to be represented or accompanied to any of the meetings that concerned his dismissal. He was not given any opportunity to appeal his dismissal and when he sought to discuss it and/or return to work, it was merely reiterated that he did not work there anymore.

The servants or agents of the respondent, including Ms Hogan, behaved aggressively and antagonistically towards the Complainant, pursuing him around the building and even out to his car on 23 April 2024. The Respondent was thereafter uncompromising and reiterated the termination of the Complainant’s employment.

The conduct of the Respondent towards the Complainant and the absolute lack of fair procedures, takes the decision to dismiss the Complainant outside of a band of reasonable responses. (Bank of Ireland v. James Reilly [2015] IEHC 241 refers)

In summary the conduct of the parties was consistent with the complainant having been dismissed and not with his having resigned. He was dismissed without substantial grounds, and it was accordingly an unfair dismissal within the meaning of the Act.

The complainant was dismissed in breach of fair procedures and the conduct of the Respondent, was unreasonable, rendering the dismissal unfair in accordance with Section 6(7) of the Act.

He seeks compensation in respect of “financial loss,” in accordance with section 8 of the Act which includes actual loss, 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.

The Complainant relies upon the case of Waterford Health Park Pharmacy Ltd t/a Stratus Healthcare v Aoife Foley, DETERMINATION NO. UDD2412 in which the Court emphasised that the Court may award compensation in the amount which the Court deemed to be just and equitable having regard to all of the circumstances. A key factor in that case, as in this case, was that there was not a scintilla of procedural fairness in the dismissal. It was further noted crucially that the Act does not purport to set out an exhaustive definition of financial loss:

The Court has had particular regard to the wording of section 7(1)(c)(i) whereby the Oireachtas provided that it may make an award of compensation not exceeding 104 weeks’ remuneration to an employee who has been unfairly dismissed the amount of which the Court deems to be “just and equitable having regard to all the circumstances”. A key fact in this case, and one which has been conceded by the Respondent, is that there was not a scintilla of procedural fairness in the manner in which the Complainant was dismissed from her employment.

The second element of section 7 that the Court also notes is that the meaning it attributes to financial loss is framed as ‘including’ actual loss, estimated prospective loss etc. In short, the statute does not purport to set out an exhaustive definition of “financial loss.”

The Complainant’s normal gross pay with the Respondent was €624.00 per week. He commenced part time work on 18 November 2024 at a rate of €280.00 per week. He claims financial loss to the date of hearing of €21,536.00 (€24,336.00 less part-time earnings of €2,800.00). He further claims ongoing loss at €344.00 per week (€624.00 to €280.00).

He seeks compensation of 104 weeks’ pay.

The complainant was a General Operative and initiallycommenced his employment with the respondent on January 30th,  2023 on a full-time basis. The respondent is a limited company that carries out the business of engineering, manufacturing outdoor lighting.

Difficulties arose in the employment relationship between the parties in April 2024. The complainant asserts that he has been subjected to unfair dismissal by the Respondent as a result of the breakdown in the employment relationship.

The respondent states there was no dismissal that that he resigned voluntarily from his position on May 1st, 2024, and there is therefore no case of unfair dismissal to answer.

The respondent holds annual reviews for all employees regarding training, development, and performance. The complainant’s annual review was not due in April; however, he was grouped with employees that had approximately one year’s service or had reviews more recently than one year previously. The annual reviews take place on a one-to-one basis and there is no set date for each employee’s review.

On April 18th, 2024, the complainant was upset that he had not had his annual review and expressed his frustration about this to Ms. Kate Hogan, Managing Director, that evening. She was aware that he had expressed dissatisfaction in his role to his Supervisor, Mr. Darek Furman, due to some changes in his work area. He was disgruntled that he was subjected to these changes while “getting paid the same wages as the others.”

Ms. Hogan assured him that his annual review would take place in the coming days, and that he was one of six employees remaining to be reviewed, and that the company was doing their utmost to afford all employees their slots in a timely and fair manner and that his contributions were recognised.

He failed to attend work the following day Friday April 19th and also on Monday April 22nd. No explanation was offered for the absence.

He returned to work on Tuesday April 23rd, but arrived late and failed to clock in as per Company procedure. He again failed to offer any explanation for his absences. When probed, he informed Ms. Hogan that he did not attend work the previous days because the company had failed to have the “pay talk” with him the previous Thursday.

The Complainant was clearly referring to the annual review and was agitated and acting in an erratic manner. Ms. Hogan did not understand the Complainant’s frustration, as he had received a pay rise in September 2023. The Complainant failed to clock in, failed to adhere to health and safety policies.

Ms Hogan requested that he clock in, to which he responded that he had no card to do so. Ms. Hogan said that she would complete a return-to-work interview with him later that day, following his absences.

The Complainant had previously attended and completed return to work interviews and was at all times aware of company policies and procedures regarding absences. Despite this, he had not always informed management of any illness or absences and his attendance was under review.

Ms. Hogan was present at the return to work interview that afternoon. During the meeting, he became highly aggressive and intimidating. When queried about his unauthorised and unexplained absences, the Complainant snapped “you know why, last Thursday, when I asked if I would be getting a review you said I had to wait.”

Ms. Hogan attempted to calmly explain that the Company has several employees to meet and review. She informed him that given he had a pay rise in September, it was not unreasonable to wait a few days.

He became increasingly hostile and aggressive and was not listening to reason. Ms. Hogan felt it necessary to halt the meeting due to his conduct and because she feared that the situation would get out of control.

Ms. Hogan asked the Complainant to accompany her to the shop floor where there were witnesses and CCTV, as she felt the situation was unsafe.

She sent him home early with pay, as she did not trust that he could safely return to his duties given his mood and conduct. Given its duty to other employees, company property and also to the complainant himself, Ms. Hogan did not see this as unreasonable. She accompanied him to gather his belongings and informed him that she would be in touch in due course to arrange another meeting. 

The Complainant was paid in full for this day and the days leading up to the next meeting.

Ms. Hogan scheduled a meeting with the Complainant for the following week,WednesdayMay 1st, 2024, in the hope that matters had calmed.Mr. Darek Furman, Supervisor, was present at this meeting as a witness.

Unfortunately, the Complainant was still highly agitated and aggressive at this meeting. He stated that he could no longer work for the Company and resigned on the spot, requesting his annual leave entitlements before exiting the premises. Ms. Hogan was shocked but accepted the resignation and contacted payroll to process outstanding entitlements.

Ms. Hogan also provided him with a letter stating he no longer worked for the Company.

Shockingly, on 2nd May at 8.00am, the complainant attended reception asking to see Ms Hogan in her office. The Complainant, Ms Hogan and Mr Furman met. The complainant was outraged that he had not yet received his entitlements and demanded payment and was loud, aggressive, and gesturing erratically.

Ms. Hogan told him that he had been paid, and that the transaction was complete on her bank account. Again, he shouted that he had not been paid and demanded to see proof. Ms. Hogan showed him the transaction on her account, and the Complainant stormed out.

The Complainant again attended Ms. Hogan’s office the following morning May 7th, unannounced and stood in the doorway. Ms. Hogan queried his attendance, reminding him that he had resigned and sought his entitlements. The Complainant was again demanding his pay, to which Ms. Hogan stated it would arrive with the next payroll cycle. He left without further comment.

The respondent heard nothing further from the Complainant until the WRC contacted the Respondent outlining that complaints had been lodged. The Respondent is at a loss to understand the unfair dismissal complaints, as there was no dismissal-the Complainant resigned.

The respondent’s representative contacted the WRC on October 31st, 2024, disputing the dismissal and requesting further clarification from the Complainant by way of a written submission. To date nothing was forthcoming. As a result, the Respondent has not been afforded the opportunity to properly answer any claims made by the Complainant, bar to dispute that there was no dismissal.

The Complainant has failed to prove a prima facie case for unfair dismissal and the Respondent asks that the court not uphold the claim and refuse any relief sought by the Complainant.

Evidence of Kate Hogan

Ms Hogan gave evidence on affirmation.

She confirmed details of the complainant’s start up with the company. She said that there had been some issues with his performance but that he had passed his probation.

In relation to the performance review she said that this did not just concern pay, and that the complainant had not been employed long enough to conduct a review.

She said that she was approached by Mr Furman who inquired whether she had spoken to the complainant. She told him that she was not ready to do so yet but agreed to have a word with him to put his mind at ease.

At that meeting she told him that he was not being ‘singled out’ and the reviews proceeded based on category of worker, and that in his case, it was not yet due. The changes due in his department were also a factor, as was the fact that his pay had been reviewed the previous September and she reassured him that the review would take place in due course.

She felt that the meeting had gone well and ended cordially.

On April 19th she became aware that the complainant was not at work, and again on April 22nd.

On observing that he had returned on the 23rd, but that he had not clocked in, she approached him. (She gave evidence on the significance of the clocking in system for general purposes, including health and safety, annual leave etc).

She invited him to her office for a return to work interview and to understand the reasons for this atypical absence. He had previous absences and understood the return to work process.

She began the interview by noting the days of the absences and entering these on the return to work form.

She said that the complainant told her that he had not been sick, but that he had absented himself over the pay issue.

She then asked him to accompany her in order to collect his belongings and asked him to leave, telling him that he would be paid. Se said that if she left him on the shop floor she would not feel safe as she could not control his conduct.

She says she followed him to the carpark to insist that he left as he was slow to do so. She told him she would be in touch regarding the return to work interview. There was no threat to his employment or of disciplinary action.

He ‘did not show up for work’ until the meeting on May 1st, which took place in her office with Mr Furman present. The first item was to conduct the return to work assessment and she again raised the reason for his absence. This was when he first referred to having had pains but moved on to talk about the pay review.

She repeated her earlier stated reasons for not being able to proceed with it and also referred to certain conduct issues with the complainant.

Eventually, the complainant said ‘I wouldn’t work in a place like this; tally up what I’m owed’.

He was asked if he would put this in writing, although there was no resignation letter prepared; she just asked him to put what he was saying in writing.

The focus at this meeting was on the items on the return to work form, there was no conversation about the complainant’s future.

She repeated that he should put something in writing and the complainant said she would get something on Tuesday.

In cross examination she outlined that she had taken over the business in 2019 and performance reviews were a standard activity. She thought that she had addressed the complainant’s concerns about the performance review.

She was asked why she had not, as promised contact the complainant after sending him home and she put this down to the absence on leave of the supervisor, Mr Furman. She said that she did not think a person in these circumstances should consider themselves to have been dismissed. She had felt concern for her safety.

In response to why CCTV had not been available she said that it had been deleted by the time of the referral to the WRC.

Darak Furman also gave evidence on affirmation.

He said he had been on sick leave during the week of April 23rd. He attended the meeting on May 1st and said that the complainant said he would give a letter of confirmation on the following Tuesday and then left. The complainant was not told that his employment was being terminated.

LEGAL SUBMISSIONS

The Unfair Dismissals Act 1977

The dismissal claimed by the complainant is in dispute, given that the employer says that he resigned on May 1st, 2024.

The Labour Court considered such circumstances where a dismissal is in dispute in the case of Connemara Marbles Ltd. v. Anne Marie Lally UDD2028, where the Labour Court stated:

“It goes without saying that, in such circumstances, it would have been better if both parties had paused and taken stock. The circumstances, in which neither was prepared to do so, led inevitably to a strong and angry exchange of words. It was in that state of anger that Ms. Keating dismissed the Complainant. She may or may not have said that the Complainant was ‘fired’. The dispute about that word is irrelevant. Ms. Keating accepted in evidence, to her credit, that a director telling an employee to leave and not to come back would be interpreted by most employees as having the meaning that they were being dismissed.”

This did not occur in the case at hand, where there can be no confusion on the part of the Complainant and no opportunity to misconstrue Ms. Hogan’s words. Simply put, nothing in the exchange from Ms. Hogan indicated that the Complainant was dismissed.

In the case of Tom Maher v. Eugene Walsh UD683/1983 the Employment Appeals Tribunal held that an employer speaking sharply to an employee is not sufficient reason for an employee to walk out or presume they are dismissed. In that case, the employer told the employee to “get the fuck back to where you were.”

Similarly, in Parkboro Developments Ltd T/A Park Engineering v Mariusz Witkowski UD/18/135, the Labour Court reasoned that:

"A sharp exchange of words in a workplace does not usually provide a basis for the sundering of an employment relationship. Obviously, in certain instances it may do so but a relatively trivial disagreement of the sort described does not come anywhere near justifying dismissal in the instant case, in the view of the Court. Indeed, the only aspect of this exchange that elevates it above what might be termed normal run of the mill workplace disagreements is the fact that the Respondent failed to direct the Complainant back to his work and, instead, led him to believe that he was being dismissed.

Relying on the above, the fact that Ms. Hogan abandoned the meeting and sent the Complainant home with full pay is not an indicator that he was dismissed. The meeting was merely paused to allow him an opportunity to calm down, and so that Ms. Hogan could protect the health and safety of all involved.

In the case of Coalquay Leisure Ltd. t/a Gold Rush Casino v Lavinia Untea UDD1730, the Labour Court concluded in that case that the complainant had resigned in temper when her employer refused to pay her for a shift that she had not worked.

It is submitted that the above Coalquay case is similar to the case at hand-the Complainant resigned in temper having not received his annual review and pay rise within the timeframe that he saw fit. This does not amount to a dismissal.

The Complainant has failed to establish a prima facie case for a claim of unfair dismissal.

At the core of this case is the issue of ‘doubt as to dismissal.’

While not common it is a feature of some cases, and the subject of some authority and also of learned comment in the textbooks. As will be seen, the facts presented here give rise to more significant challenges of interpretation than those which normally arise in ‘doubt as to dismissal’ cases.

While the general, chronological narrative as set out in the respective submissions does not differ greatly, each party’s representation (or more precisely interpretation) of individual episodes does. There is a degree of attribution of conduct by each side to the other which is hard to fully evaluate in retrospect in the absence of witnesses, even on the basis of sworn evidence.

To add to the complexity, the complainant has offered a selection of dates on which it is alleged the dismissal may have taken place, which I address below.

The key elements are clear enough.

It starts with the complainant’s dissatisfaction with the failure of the respondent to offer him a performance review, as was happening with others in the company’s employment.

He raised this initially on April 18th with Mr Darak Furman, his supervisor. Mr Furman mentioned it to Ms Hogan, the Managing Director who then met the complainant on April 19th, 2024. In her evidence she stated that she explained the situation to the complainant and that he seemed satisfied by her explanation.

Essentially that explanation was that there was significant change imminent in the area in which he worked and that she needed greater clarity about inputs such as staffing, among other things, before conducting the reviews.

In addition, the complainant had his salary reviewed the previous September and was not in scope for a further pay increase. She described the meeting as having ended ‘cordially.’

The complainant’s version of the meeting does not differ in substance from this; in his version Ms Hogan said she did not know how to assess his role and did not have the information she needed. He said he wanted to know what his future prospects would be. So, no significant divergence on the facts of the meeting.

The issue begins to assume greater significance as the complainant reacts to the meeting, in its immediate aftermath.

He said in evidence that, following the meeting, he felt ‘unwanted,’ although why he should have felt this on the basis of the acknowledged facts is not clear; the explanation given by Ms Hogan for the position she took at the meeting seems entirely plausible.

The complainant gave no indication at the meeting of any disagreement with Ms Hogan’s position, and he might have been better advised to show a little patience after it. In many ways his failure to do so was the first domino to fall in this unfortunate process and it set in motion the chain of events which followed.

It started the following day (Friday) when he went sick and did not report for work that day nor did he do so on the following Monday. He said he had stomach cramps and headaches which he attributed to a stress reaction.

When he did return, on the Tuesday his ‘clock in’ card was mysteriously missing, but he took up his work position and was later spotted by the MD, Ms Hogan, shortly thereafter. Her evidence was that she said she would require him to go to the office for a Return to Work interview and he duly followed her. Evidence was given of the significance attached to the ‘clocking-in’ process that went beyond merely recording the presence of an employee.

This is the point at which the situation begins to unravel.

The parties mutually accuse each other of aggressive conduct and Ms Hogan notes in the report of the meeting that the complainant attributed his absence to the issue about his performance review and his wages, and not to any medical condition.

The clear conclusion here is that despite Ms Hogan’s belief that her meeting had ended cordially, any such feeling quickly evaporated for the complainant.

He said in his evidence that she told him there was ‘no work for him’ and asked him to follow her to a more open area as she said she felt threatened; on the basis of the complainant allegedly pointing at her aggressively with two hands.

She then told him to go home and there was a follow up confrontation in the carpark as the complainant was slow to leave the premises, as Ms Hogan described it.

As noted above the precise truth of what happened (specifically in relation to the demeanour of the parties) cannot be fully ascertained or known in the absence of witnesses. The respondent failed to make CCTV coverage available.

However, the proximity of the meeting on April 19th and the complainant’s subsequently expressed dissatisfaction with the failure of the company to provide some greater clarity on his career ambitions lends credibility to Ms Hogan’s note that the true reason for the complainant’s absence lies in that, and not in the symptoms he described at the hearing.

It seems clear that the complainant continued to nurture a strong sense of grievance over the performance review and whatever expectation he associated with it. In any case, the detail of that is less important than the broader brush strokes of what happened next.

The respondent attached significance to the fact that, although the complainant was told he was being sent home, it would be on the basis of remaining on full pay.

This is relevant in the context of the complainant’s assertion that he was told there was no work for him at the interview on the 23rd and that this was one of the dates asserted as being the date of dismissal.

Ms Hogan confirmed, in response to a question from the complainant‘s Counsel, that he had not been dismissed by virtue of his being sent home.

What exactly was meant by there being ‘no work’ for the complainant is again unclear; was that just on that day, or in general?

Ms Hogan may now regret not simply directing him to return to his work station, but it was a moment of high emotion. Her evidence was that the complainant confirmed his two-day absence was a result of disgruntlement over the review process and that he told her he had not been sick. I accept that her version of this is probably correct.

If so, it directly contradicts his sworn evidence at the hearing and Ms Hogan’s evidence that the first mention of sickness occurred at the meeting on May 1st.

What is important is the precise status of that absence.

Ms Hogan’s evidence was that on dispatching the complainant she told him only that she would be in touch. There was no reference either then or thereafter to the status of the absence. Despite her stated commitment to get in touch, she did not do so; no contact of any sort was made by the respondent with the complainant. Ms Hogan somewhat weakly attributed this to the absence of Mr Furman on leave.

Even allowing for Ms Hogan’s apprehension about personal contact with the complainant (in her telling of it) there was no obstacle to communicating with the complainant by email or letter, or through a third party, to indicate what precisely the status of his absence was and what steps would follow to clarify it.

It is hard to believe the company had no resources to enable it to perform this task, which is both elementary courtesy and good HR practice.

Not only was there no obstacle to it, there was an obligation to do it.

A worker may not be ordered out of the workplace, to the accompaniment of some vague references about there being no work for him, without some indication either at the time, or in the immediate aftermath, where exactly he stands in relation to his employment or what is to become of him in that regard. It is easy to infer from this the initial unravelling of the contract of employment.

Indeed, the next step in the narrative was initiated by the complainant, who requested a meeting, although the respondent somewhat disingenuously attempted to suggest otherwise. Ms Hogan even stated that the complainant ‘did not show up for work’ until the May 1st meeting!

This is quite untrue and revealing of the company’s attitude. He did not ‘show up’ because she sent him home and took no steps to clarify his status in the immediate aftermath.

And regrettably the matter unraveled even more critically when they eventually did meet.

The ensuing meeting was also badly mismanaged by Ms Hogan who should at least have arranged for someone to be present for the meeting. It provides some context for the complainant’s alleged behaviour at the meeting.

A worker may not be suspended, for that is what happened, without some form of fair process and clarity about what is to happen next. It is still not clear, as noted earlier, why the complainant was not simply instructed to return to his work station, a place Ms Hogan led him to in order to feel safer, as she put it. If she felt safe with him being there, he could have resumed his normal work.

She could then easily have left it at that and returned to her own duties and engaged in whatever disciplinary follow up she deemed necessary subsequently. She did none of these things and her failure to do so has a critical bearing on my decision, taken with other elements of the case.

However, it does not end there. The complainant was left off work without any contact from the respondent for six days and only then when he made an approach was the meeting of May 1st arranged.

What precise meaning is to be attributed to the phrase ‘I can’t work here any longer’ used by the complainant at the May 1st meeting? The respondent was quick to seize on this as the complainant’s resignation. It was most unwise to do so.

It may have been what he intended, or it may have been an expression of frustration at being left to kick his heels for the best part of a week in a kind of contractual limbo. Either way, an obligation fell on the respondent to establish the complainant’s true intention with some certainty, especially after its actions on April 23rd.

This is particularly the case given the complainant’s undisputed and clear refusal to sign a letter of resignation when requested to do so, another critical consideration.

What conclusion did the respondent draw from this?

On the one hand they had his clear statement that he would not resign in writing but on the other they were happy to interpret his comments as a resignation. This made no sense.

A contract of employment has important, and formal legal status. It may be ended lawfully in a number of ways, but it must be clear beyond reasonable doubt that it is being ended; it cannot simply wither away or evaporate in some fog of ill-tempered confusion or be eroded to the point where an employee is manouevred by attritional circumstances out of his employment.

An onus falls primarily on an employer to ensure that there is certainty in that regard, and above all, fairness and the respondent did not achieve either in this matter.

While the complainant struggled to identify a precise termination date it is more accurate to see the termination as an incremental process that ran from the April 23rd encounter through to the meeting on May 1st (although this is actually how it is roughly expressed at paragraph 20 of his submission).

In that respect this case differs from some of the authorities submitted. There was a single incident in the Parkboro Developments case, and while the precise significance of that moment was a matter of controversy, the actual termination could be traced directly to that single incident.

I do not see the period of suspension as representing, of itself, part of the actual dismissal. However, it too was a critical component in the overall process constituting the dismissal.

So, this brings us to the central, vexed question at the heart of this complaint; whether the respondent or the complainant terminated the employment; not only is the date of dismissal in doubt, so too is the fact of dismissal.

This case falls between a number of legal stools given that the alleged act of dismissal is difficult to discern. It is neither a question of the fairness and/or proportionality of the process (as it more generally presents) nor is it a constructive dismissal where the employer’s conduct becomes one of the key determinants in an employee’s resignation.

The case law on this is not as helpful as one would hope. While an issue as to the ‘Doubt as to Dismissal’ regularly arises in cases of constructive dismissal, or in situations (such as those referred to in the complainant’s submission) where the issue is the resolution of the ambiguity of the meaning of particular words that were actually used, perhaps in anger.

But in those cases, as already noted, there is generally an identifiable ‘moment’ or episode to which the controversy can be directly connected. And in most of the case law the words in question generally make clear some reference to a termination, even if they were spoken in haste, or unintended to have the meaning taken.

In this case, some insight on whether a dismissal took place or not can initially be approached from looking at the actions of the parties. There are also the alleged comments by Ms Hogan that there was ‘no work’ or ‘no job’ for the complainant.

And it seems probable that the invitation to the complainant to sign a resignation letter was a response to his indications that he no longer wanted to work there.

While this would have represented a convenient outcome for the respondent it ought to have been very obvious to the employer that any such statement by the complainant had at least some of its roots in the events immediately pre-dating that meeting and the respondent’s own actions, specifically the suspension, although probably also in the grievance over the review.

On this point, while not on all fours with the current case, as it concerns a resignation given in haste, it is worth considering the following regarding purported resignations.

‘If therefore an employee tries to withdraw a notice of resignation, an employer should ask itself whether special circumstances exist. If so, they may cast doubt on whether the resignation was really intended. The employer should investigate the facts to see whether to a reasonable employer an intention to resign is the correct interpretation of the facts.

Redmond on Dismissal Law Third Edition, Desmond Ryan at [22.25]

This should be read in the context of the quotation in the complainant’s legal submission from the same source.

“In general, a person is dismissed when the employer informs him clearly and unequivocally that contract is at an end or if the circumstances leading to a dismissal was intended or may reasonably be inferred as having been intended….”

In the current case there was not even a letter of resignation; merely a degree of huffing and puffing by the complainant seized on all too readily by the respondent. Indeed, there had been a blank refusal by the complainant to sign a letter of resignation.

But it is explicitly applicable in respect of the failure of the respondent to take steps to properly establish the true meaning of the complainant’s position; not jump to convenient conclusions based on the proceedings of two bad-tempered meetings and the emotional response of a disaffected employee.

Some of the dicta relied on by the complainant in the Connemara Marble case do have direct relevance. The Labour Court concluded there that ‘the respondent’s actions were not reasonable’ (emphasis added) and it is this concept of reasonableness, and the associated concept of fairness that further brings this complaint into the realm of an unfair dismissal.

Similarly, a slightly different issue arose in Connemara Marble Industries Limited v Lally which involved a ‘heat of the moment’ decision.

The employer’s conduct is, of course central, but the complainant in this case did not resign or at least had not done so at the critical meeting on May 1st.

Another relevant consideration in reaching a decision is the concept of the mutual implied obligation of trust and confidence in the employment relationship.

For example, in Courtaulds Northern Textiles v Andrews [1979] IRLR 84 a decision of the UK EAT Arnold J. stated as follows.

‘The employer will not, without proper reason and cause conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence between the parties’

While this more generally presents in cases of constructive dismissal, it will provide some context on the obligations of the employer and a basis to evaluate how the respondent acted in this case.

In summary, the case may be reduced to the following essential components.

The employment contract terminated.

The respondent attributes this to the resignation of the complainant. This is its only defence.

In a case where much of the narrative has been contested, I find (quite easily) as a matter of fact that the complainant did not resign and certainly had not done so at the conclusion of the meeting on May 1st. (The evidence of Ms Hogan and Mr Furman that the complainant said he would resign at some stage over the following few days is not persuasive, and indeed not relevant given the above finding, which is that the contract of employment finally ended on May 1st).

It is clear that, in the respondent’s mind the complainant’s contract had come to an end in the course of that meeting. If it had, it was not the result of a resignation.

One must then factor into this the conduct of the respondent towards the complainant in the days leading up the May 1st meeting.

Accordingly, I find that it follows from this on the basis of the meeting of May 1st and the preceding events that if the complainant did not resign from his employment on the basis of any recognisable level of informed consent, and the employment came to an end it permits of only one conclusion; that it was unfairly terminated by the cumulative actions and failures of the employer.

This means that the complainant was unfairly dismissed, and his complaint succeeds.

In considering a remedy I am obliged to take into account a number of factors.

The first of these if the complainant’s efforts to mitigate his losses.

On the basis of his evidence at the hearing they were entirely inadequate; the respondent summarised them as being a total of nine job applications.

The complainant gave oral evidence of other informal attempts to secure employment (i.e., via personal contacts rather than written applications). He gave evidence that he was strongly motivated to secure new employment for personal and family reasons.

Even taking these into account he fell well short of meeting the obligation to mitigate his losses.

Although I hold the employer responsible for the termination of the employment it is also difficult to overlook the complainant’s contribution to the events leading up to the termination; his petulant overreaction to the meeting on April 18th with Ms Hogan and his conduct at the meeting on the 23rd.

I take both into account assessing the justice and equity factors in making my award which is substantially reduced from what it might otherwise be for those reasons.

I find the complainant was unfairly dismissed and award him €7,500.00

I find that the dismissal was unfair and uphold Complaint CA-00063825-001.

I award the complainant €7,500.

Unfair Dismissal