Complainant

Respondent

Parties

Robert  Morgan

DL Woodwork Limited

Representatives

Self-Represented

Self-Represented

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-00064149-001

18/06/2024

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

CA-00064149-002

18/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00064149-003

18/06/2024

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

CA-00064149-004

18/06/2024

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

CA-00064149-005

18/06/2024

The Complainant commenced employment with the Respondent on 10th January 2024. The Complainant was a permanent, full-time employee, in receipt of an average weekly wage of €762.72. The employment ended on 8th April 2024.

On 16th June 2024, the Complainant referred the present set of complaints to the Commission. Herein, he alleged that the Respondent had unfairly dismissed him and that they failed to discharge his statutory entitlements on dismissal. By response, the Respondent denied these claims, stating that the Complainant elected to resign his employment when presented with an allegation of wrongdoing.

A hearing in relation to this matter was convened for, and finalised on, 7th October 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued extensive submissions in advance of the hearing. Said submissions were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of his complaints, while a Director of the Respondent gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross examination by the opposing side.

No issues as to my jurisdiction to hear the complaints were raised at any stage of the proceedings.

In evidence, the Complainant stated that he commenced employment with the Respondent on 10th January 2022. At all relevant times, the Complainant’s role was described as that of “cabinet maker”. Throughout the Complainant’s employment he would take on private work outside of his duties with the Respondent. The Complainant stated that the Director of the Respondent was aware of these activities and consented to the Complainant occasionally using the Respondent’s tools and workshop for such services. Throughout his employment, the Complainant was also upfront about his intention to set up his own business in due course. In this regard, the Complainant stated that he specifically discussed this with the Respondent during a social event.

On 25th March 2024, the Complainant received an offer regarding the creation of a business page on social media. This proposal suggested that the Complainant’s fledgling business would receive a Facebook business page with a personalised logo for a standard fee. The Complainant accepted this offer, and shortly thereafter, the page was created. Again, the Complainant stated that he showed this business page to his employer and stated that they had a conversation regarding the employer potentially availing of the services.

On 5th April 2024, at approximately 15.50, the Complainant had finished his assigned work for the day. In these circumstances, the Complainant began to work on a private job using waste material. In evidence, the Complainant stated that he had previously discussed the issue with his employer, and that he had permission to use the material in question. The following day, during his lunch break, the Complainant began to work on a further private job using waste material.

On 5th April 2024, the Director of the Respondent asked to speak with the Complainant. During this meeting, the Complainant was handed a document and was asked to sign the same. In evidence, the Complainant stated that this document contained many falsehoods and misrepresentations. In particular, the Complainant stated that the document alleged that he had stolen material and used the Respondent’s tools without permission, both of which were untrue. By response, the Respondent stated that the Complainant could take the weekend to read the document.

The following Monday, the Complainant attended for work in the normal manner. The Complainant again raised the points outlined above with the Respondent. By response, the Director stated that he did not intend on changing any of the wording in document. Thereafter, the Respondent stated that unless the Complainant signed the document, there was “nothing for” the Complainant going forward. On foot of the same, the Complainant stated that he viewed his employment as being terminated.

By submission, the Complainant stated that he was innocent of the accusations presented to him by his former employer. He stated that was informed that he must sign a document which falsely stated that he committed various acts of misconduct. When the Complainant sought to advocate for himself, the Respondent simply informed him that his employment was at an end and summarily dismissed him. In light of the foregoing, the Complainant submitted that his dismissal was unfair for the purposes of the impleaded Act.

In addition to the foregoing, the Complainant submitted that he did not receive adequate notice on the termination of his employment and that he did not receive adequate remuneration for untaken annual leave on the termination of his employment.

By response, the Respondent denied the allegations raised by the Complainant.

In evidence, the Director of the Respondent accepted that the Complainant informed him of his intentions to start his own business. He further accepted that the Complainant would, occasionally, use some internal tools and waste materials for these purposes.  Notwithstanding the same, the Respondent submitted that all such permission were granted in respect to specific requests on the part of the Complainant, or any other employee, and that he was not at liberty to simply use these facilities of his own volition.

Regarding the business page set up by the Complainant, the Respondent accepted that he was informed of the same by the Complainant. In this regard, the Director stated that the issue in respect of the same arose as the Complainant had attempted to pass off work completed in his employment with the Respondent as his own work. In addition to the same, the Respondent discovered that the Complainant had completed private work while on the Respondent’s time, and that he had used the Respondent’s material to do so. In this regard, the Respondent submitted that the materials in question were not waste material and stated that the Complainant did not have permission to use these for his own purposes.

While the Director of the Respondent was concerned regarding these developments, he did not wish to engage with the disciplinary procedures in respect to the same. As a means of resolving the issue he issued the Complainant with correspondence, which he described as an “employer’s warning letter”. In evidence, the Director of the Respondent stated that the purpose of this correspondence was to set out the Respondent’s expectations regarding the matters that had occurred, and to prevent any future occurrences from arising.

As matters transpired, the Complainant refused to sign this correspondence. In evidence, the Director of the Respondent stared that when presented with the correspondence, the Complainant simply walked off site and did not return. He denied that he dismissed the Complainant or used any language might suggest the same. The Director of the Respondent assumed that the Complainant would return to his role in the coming days, but instead he simply proceeded resign his employment.

By submission, the Director of the Respondent stated that he was entitled to raise issues with the Complainant as they arose. He stated that by issuing the correspondence to the Complainant he was giving him a chance to right the wrong and ensure that no such issues arose in the future. He denied that he dismissed the Complainant and reiterated that the Complainant resigned his employment. Finally, the Director of the Respondent submitted that all statutory payments were issued to the Complainant on the termination of his employment.

CA-00064149-001 – Complaint under the Unfair Dismissals Act

Regarding the present case, the Complainant has stated that he was falsely accused of serious misconduct by the Respondent. He stated that when he refused to sign correspondence that would confirm the disputed misconduct, the Respondent proceeded to summarily dismiss him from his employment. By response, the Respondent submitted that serious issues of misconduct arose in the course of the Complainant’s employment. He submitted that he sougth to address the same in a fair and practical manner. In this regard he submitted that the Complainant left his place of work when confronted with these allegations and, thereafter, elected to resign his employment.

Having regard to the foregoing, it is apparent that a conflict of evidence exists as to the fact of the Complainant dismissal. In the matter of In Devaney v DNT Distribution Company Ltd, UD 412/1993, the Employment Appeals Tribunal held that,

“... where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”

Regarding a dispute in relation to the fact of dismissal, in the matter of Longford County Council v. Joseph McManus UDD 1753 the Labour Court held as follows,

“As a dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined.”

Regarding the instant matter, the evidence of the Complainant was that once he refused to sign the correspondence confirming the disputed misconduct, the Director of the Respondent informed him that there was “nothing for” the Complainant at the workplace. By response, the Director of the Respondent denied making such a statement, and stated that the Complainant simply walked off site on that date. In a series of text message exchanged after this date, the parties confirmed the positions adopted above. In this respect, the Complainant stated that the Respondent stated that there was nothing for the Complainant in the workplace if he did not sign the correspondence in question, while the Respondent stated that the Complainant would be welcome to return once he signed the document. By response, the Complainant stated that he would return once the wording of the document had changed, while the Respondent refused to amend the same. In such circumstances, the Complainant believed himself to be dismissed, while the Respondent expressly stated that he was not, and he could return once the document was signed.

Regarding the present factual matrix, it is apparent that the Respondent would not permit the Complainant to return to work until such a time as he signed the document issued to him. In circumstances whereby the Complainant refused to sign the document, for good reason, the parties had reached a form of stalemate, with the Complainant being placed on a form of unpaid suspension. This sequence of events is clearly problematic for the Respondent, but does not amount to the dismissal of the Complainant,. In this respect, the Respondent went as far as to expressly and unambiguously stated that the Complainant was not dismissed. In such circumstances, I find that the Complainant’s employment was terminated by his resignation, and the present matter related to an allegation on constructive dismissal on the part of the Complainant.

In this regard, Section 1 of the Unfair Dismissals Act, 1977, defines constructive dismissal in the following terms,

“…the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

In Berber v Dunnes Stores [2009] 20 ELR, the Supreme Court held that,

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.”

In Western Excavating (ECC) Ltd v Sharp (1978) IRL 332 the Court stated that,

‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct.”

In the matter of A Former Employee -v- A Building Supply Company ADJ-00022607, the test to be applied was summarised as follows,

“…the correct approach to be taken by an Adjudicator in considering whether there has been a constructive dismissal is: whether there has been a repudiatory breach by the employer, or, if there has not been a repudiatory breach whether the employer engaged in conduct which made it reasonable for the employee to terminate his contract.”

Regarding the present case, the Complainant has alleged that the Respondent’s behaviour was such that he had no choice but to terminate his employment. In this regard, it is clear that an issue arose between the Complainant and the Director of the Respondent regarding the use of the Respondent’s facilities for private work on the part of the Complainant, for the completion of said work during normal working hours and the use of the Respondent’s materials in relation to the same. While the Complainant has disputed each one of the allegations raised by the Respondent, it is apparent that these are serious matters, and ones which the Respondent is entitled to investigate.

In the normal course, a reasonable employer would be expected to invite the employee in question to an investigation meeting to discuss the issues at hand. Thereafter, if required, the employer should invite the employee to a disciplinary meeting, with a full right of appeal being offered in the event of an adverse finding. In the present case, none of these steps were taken, and the Respondent simply presented the Complainant with correspondence confirming findings of misconduct on his part. Such a process was clearly conducted in contravention of the Complainant’s right to fair procedures and, unsurprisingly, the Complainant refused to sign the correspondence as issued. When the Complainant sought to dispute the findings outlined in the correspondence, the Respondent refused to allow him to return to work until such a time as he signed the document, effectively placing him on an indefinite, unpaid suspension until such a time as he complied with the Respondent’s request. Having regard to the foregoing, it is evident that the conduct of the Respondent was unreasonable, and I accept this aspect of Complainant’s submission.

Notwithstanding the same, to succeed in a complaint of constructive dismissal, it is incumbent on a Complainant to demonstrate their engagement with the Respondent’s internal procedures. In the matter of Beatty v Bayside Supermarkets UD 142/1987 the Employment Appeals Tribunal held that,

“…it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

In the matter of Travers v MBNA Ireland Limited, (UD720/2006), the Complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. While the Complainant in this matter initiated the company’s internal grievance procedures, he resigned without lodging a final appeal. In this instance the Tribunal found that,

“…the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case”

And,

“…in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

Regarding the present case, no inter-personal grievance procedures were opened by the Respondent during the hearing. While the Respondent did reference an invite to mediation, this was issued after the present complaint had been referred, at which point the dismissal of the Complainant had taken effect. From the messages opened by the parties, it is apparent that the Complainant raised these issues with the Respondent in an informal manner and allowed the Respondent to reply in turn. In this regard, it is apparent that the Complainant gave the Respondnt an opportunity to address the issues at hand, with the Respondent simply stating that the Complainant must sign the correspondence in question.

Having regard to the accumulation of the foregoing points, I find that the Complainant was constructively dismissed in accordance with Section One of the Act. In such circumstances, I find that the Complainant was constructively dismissed, and his application succeeds.

CA-00064149-002 – Complainant under the Minimum Notice and Terms of Employment Act

In circumstances whereby the Complainant resigned his employment, he is not entitled to statutory notice. In such circumstances I find that the complaint is not well-founded.

CA-00064149-003 – Complaint under the Payment of Wages Act

Regarding this complaint, the Complainant has alleged that the Respondent did not discharge his statutory entitlement on the termination of his employment. In circumstances whereby the substance complaint is captured in the decision below, I find that the same is not well-founded.

CA-00064149-004 - -Complaint under the Organisation of Working Time Act

Regarding this complaint, the Complainant had alleged that the Respondent failed to discharge his outstanding holiday entitlement on the termination of his employment. When the Complainant queried the same, he was informed that he had been overpaid by two days the previous year and his holiday entitlement had been reduced accordingly. By submission, the Respondent repeated his position, and stated that the Complainant had received all entitlements on termination.

While the Respondent may well be correct that the Complainant exceeded his statutory entitlement ther previous year, the fact remains that he accrued the entitlement in the year prior to his termination. In such circumstances, I find that the Respondent did not discharge the full entitlement on termination and the complaint is well-founded.

CA-00064149-005 – Complaint under the Organisation of Working Time Act

In circumstances whereby this complaint is a duplicate of that listed above, I find that the same in not well-founded.

CA-00064149-001 – Complaint under the Unfair Dismissals Acts

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that his application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, compensation is the most appropriate redress in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate his losses following his dismissal. In this regard, the Complainant stated that he was in receipt of jobseeker’s allowance for a period of approximately eight weeks following his dismissal. Thereafter, the Complainant received an enterprise grant for his own business and was engaged in this respect thereafter In reply to the same, the Respondent stated that that their industry is experiencing a significant labour shortage, and that the Complainant should have had no difficulty in securing alternative employment. While this may well be the case, it would be reasonable to assume that an individual would experience a delay in securing alternative employment even in the most favourable of circumstances. I further note that the Complainant provided no evidence of his attempts to secure alternative employment following his dismissal.

Having regard to the foregoing, I award the Complainant the sum of €3,813.60, or the equivalent of six weeks remuneration, in compensation.

CA-00064149-002 – Complainant under the Minimum Notice and Terms of Employment Act

I find that this complaint is not well founded.

CA-00064149-003 – Complaint under the Payment of Wages Act

I find that this complaint is not well founded.

CA-00064149-004 - -Complaint under the Organisation of Working Time Act

I find that this complaint is well-founded, and consequently the Complainant’s application succeeds. Regarding redress, I award the Complainant the sum of €305.09 in respect of outstanding annual leave, and a further €150 in compensation.

CA-00064149-005 – Complaint under the Organisation of Working Time Act

I find that this complaint is not well founded.

Fact of Dismissal, Constructive Dismissal, Fair Procedures