ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001500
Complaint(s)/Dispute(s) for Resolution:
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-00002033-001 | 19/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00002033-002 | 19/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00002033-003 | 19/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00002033-004 | 19/01/2016 |
Date of Adjudication Hearing: 05/04/2016
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
The Claimant was dismissed by way of text message on the 22/12/2015. No formal reason for the dismissal was given to the Claimant. |
The Claimant has not been clearly advised if his employment has ceased due to a dismissal or to a redundancy situation. The respondent stated by way of text message "dont think i'm going back at it anyway". If the respondent claims that this is a redundancy situation it must be shown that the position is redundant. |
The Claimant was not given any notice nor was he paid in lieu of his notice period. |
Throughout the Claimant's employment he never received his statutory entitlement to be paid for the three bank holidays over the Christmas period. This amounts to 15 days which we not paid to the Claimant over the course of his employment. |
In his oral evidence the Complainant confirmed the details as set out above in his complaint form.
He stated that in his view his employment ended when he received a text on 22 December 2015 from the Managing Director of the Respondent. The Complainant in particular pointed to the comment in the text – "don't think I'm going back on it anyway" - as a clear indication that he was being dismissed.
The Complainant stated that following this he could not come back to work.
Respondent’s Submission and Presentation:
The legal representative for the Respondent confirmed that the Complainant commenced employment on 1 July 2010 and was employed a full-time capacity.
It was submitted that in early December 2015 the Managing Director of the Respondent made all employees aware that the company was finishing for holidays on 22 December 2015, with Christmas holidays extending from 23 December 2015 until 4 January 2016.
The Managing Director of the Respondent was going on leave to Australia with his family over the Christmas period. All staff were made aware of this. Prior to his departure the Managing Director approved payment of wages to be made during his absence plus the Christmas holiday pay prior to his departure.
The Respondent claims that the Complainant was paid his normal wages on 18 December 2015 and, in addition, received his Christmas holiday pay on the same day, in line with all other staff. According to the Respondent all staff were reminded, when they received their holiday pay on 18 December, that the Christmas holidays were not commencing until 23 December.
The Respondent claims that the Complainant was verbally abusive, insulting and disrespectful to the company director who advised staff of this situation. It is further submitted by the Respondent that the Complainant refused or neglected to attend for work on 21 December 2015.
According to the Respondent, the Complainant's conduct and his refusal to attend for work on 21 and 22 December was communicated to the Managing Director, who at that stage had commenced his leave in Australia. It was claimed by the Respondent that the Complainant's conduct was a great surprise and of concern to the Managing Director who took time out from his leave to make several unsuccessful attempts to contact the Complainant by phone on 22 December in order to investigate what had occurred.
Having been unsuccessful in his attempts to make contact with the Complainant by phone, the Managing Director sent a text message to the Complainant directing him to wait until he (the Managing Director) returned from leave on 9 January 2016 before resuming work so that any grievance which had arisen while he was away could be dealt with appropriately.
The legal representative of the Respondent stated that the Complainant was not dismissed on 22 December 2015 on foot of the text message from the Managing Director. It is further claimed on behalf of the Respondent that the comment, which the Complainant interpreted as his notice of dismissal, was taken out of context.
In further support of the Respondent's contention that the Complainant was not dismissed, it was contended that the Respondent sought to facilitate the Complainant by restructuring his work hours to suit his personal needs. It was also claimed that the Managing Director informed the Complainant that work was available both in the Respondent's own yards and indeed further County Council work was available to him if he attended for work.
The Respondent claimed that the Complainant indicated to the Managing Director that he (the Complainant) wanted to be made voluntarily redundant. The Respondent stated that the company was not in a financial position to accommodate voluntary redundancies.
In summary, the Respondent denied that the Complainant was dismissed, unfairly or otherwise and his employment was not terminated. It was also denied that the Complainant was made redundant. The Respondent further contended that the Complainant was paid his full holiday entitlement.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Issues for Decision:
The issues for decision are whether the Respondent was dismissed by the Complainant by means of a text message sent on 22 December 2015
The Complainant is also contending that his employment may also have been terminated as a result of redundancy and, in that case, he did not receive the appropriate notice and/or payment in lieu.
Finally, the Complainant claims that he was not paid his statutory holiday entitlement over the Christmas period – December 2015/January 2016.
Legislation involved and requirements of legislation:
The following pieces of legislation are relevant to this complaint: Unfair Dismissals Act (1977), Redundancy Payments Act (1967), Minimum Notice and Terms of Employment Act (1973) and the Organisation of Working Time Act (1997)
Decision:
The Complainant claims that he was dismissed by means of a text message sent by the Respondent's Managing Director on 22 December 2016, while the latter was on a family holiday in Australia. The key issue for decision is, therefore, whether the text message in question could reasonably be considered to have represented a dismissal notification to the Complainant.
In considering this aspect of the complaint, I believe there to be two significant contextual factors that should be taken into consideration. The first is the fact that the Respondent’s Managing Director was in the middle of the family holiday to Australia when he was advised of the scenario that had arisen with the Complainant after he departed on his trip. As the Managing Director was clearly removed from the situation it did not provide for the most practical or appropriate circumstances in which to deal with the matter that had arisen. It also dictated that the interaction took place as a text exchange, which could not be considered as a reliable method of communication as this medium presents difficulties in relation to interpretation.
Secondly, and most importantly, the evidence presented at the Hearing suggests that a particular working relationship appears to have existed between the Complainant and the Respondent's Managing Director. Based on the evidence adduced at the Hearing, it would appear that the Managing Director had been particularly supportive and accommodating towards the Complainant, especially in relation to the latter's work patterns and his attempts to find alternative employment.
Consequently, having carefully considered all of the evidence adduced, I am strongly of the view that the text message of 22 December 2015 could not reasonably be considered to constitute notice of dismissal. I am further satisfied that the Respondent did not intend to dismiss the Complainant on that occasion. It is clear from the text message in question that the Managing Director may have had a view that it might have been in the Complainant's best interests to move on to alternative employment based on issues that had arisen throughout the year.
However, notwithstanding the fact that the Managing Director expressed these views in the text, the evidence does not support the contention that he intended to dismiss the Complainant then and/or subsequently.
It is clear that the Managing Director intended to discuss the matter with the Complainant on his return from his trip to Australia. In support of this the Managing Director, at the beginning of the first text, requested that the Complainant not attend work until he (the Managing Director) had returned to the workplace and was in a position to deal with the matter personally.
My findings in this regard are further supported by the fact that during the same chain of text messages, the Managing Director suggested that the Complainant could work two days a week so that he (the Complainant) would have time to make up his mind what he wanted to do next. The Managing Director also indicated that he was willing to organise different hours in order to suit the Complainant's needs.
The evidence adduced at the Hearing suggests that some discussion took place between the Complainant and the Managing Director following the latter's return to work in January 2016. While it appears that some discussion took place in relation to arrangements which would allow the Complainant to leave the Respondent's employment, it is clear that these took place against a background where the Complainant's job was still there for him. This situation was clearly evident from the text message sent by the Managing Director to the Complainant on 18 January 2016 enquiring as to what his (the Complainant's) position was in relation to a return to work. It was also clearly evident from this text that work was available for the Complainant with or through the Respondent.
Taking all the above into consideration, I find that the Complainant was not dismissed as alleged on 22 December 2015. Therefore, the Complainant's complaint that he was unfairly dismissed is not upheld.
Consequently, I find that the Complainant's additional complaints in relation to Redundancy and Minimum Notice are similarly not upheld.
Based on the evidence adduced at the Hearing, I am satisfied that the Complainant's holiday entitlement was paid in full and, therefore, complaint in this regard is not.
Dated: 12th July 2016