Complainant

Respondent

Parties

Anthony  Kennedy

Total Tiles Ltd Italian Tile and Stone

Representatives

  Self represented

 Luke Sweeney, Company Director.

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-00036132-001

13/05/2020

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

CA-00036133-001

13/05/2020

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

CA-00036133-002

13/05/2020

The Complainant commenced employment with the Respondent on 18th April 2016, this employment ended on 5th May 2020.

The complaint was received by the Workplace Relations Commission on 13th May 2020.

Complaint reference CA – 00036132 – 001 & CA – 00036133 – 001 are the same complaints submitted under s.8 of the Unfair Dismissals Act, 1977.

Background.

Total Tiles Limited is established 20 years. During this time the company has employed       25 people on a full-time basis. The Complainant is the first employee to have been dismissed from the company.

The company consider employing people and treating them well to be their number one priority. The Director has stated that the dismissal of the Complainant was one of the hardest decisions he ever had to make. However, he considers that he had no other option in light of the circumstances and the decision was taken to protect the company and to preserve the employment of the other employees.

The reasons for the dismissal were not as stated by the Complainant that he was told on Friday 1st May  that if he didn't agree to certain work practises by close of business next working day (5thMay)thathisemploymentwouldbeterminated.

Closure of Retail Stores.

The Director took the decision for the safety of our staff and customers to close our retail stores on 14th March 2020 - two weeks before the government shutdown. Staff were kept on full salaries and asked to work from home.

Document sent to staff on 5th April 2020

The document entitled “Matters for Consideration for ITAS during and coming out of Corona Virus Lockdown” was sent to all employees.

Response from the Complainant.

The Complainant responded to this email on 6th April saying he would get back to the Respondent as soon as he could.

The following day the Complainant sent an email to the Respondent stating that he was experiencing broadband problems and would not be in a position to carry out any extra tasks allocated by the Respondent.

There was then an exchange of emails between the Complainant and the Respondent in relation to what employees should be doing working from home and the need to maintain normal workplace disciplines whilst working from home. One subject that was mentioned was the need to adhere to rules in relation to breaks.

Retail returning

On the 24th of April the Director shared a newspaper article concerning the above and suggested that employees might meet online the following week to discuss how the business might best  do so and to send him any matters they would like to discuss on the day.

Matters for discussion on Internet Call Document.

On 30th April the Director sent the following email:

All,

please find the attached document to use as a basis for our online discussion on   Friday. The only one who's feedback is included is Jane as I've gotten nothing from Anthony and Karl.

The purpose of the document is to update on the one of April 5th last  to give you all an idea of changes made over the last few weeks and where the company is going over the next 12- 18 months in order that everyone   is aware of what is envisaged as regards changes and how we will ensure not only our survival but take this opportunity to grow our share of the market. To achieve all of this every one of the 4 of us needs to be 100% on board so if you don't like the idea of what is being laid out now is the time to say so.

I'm aware from feedback received that the email of April 5th detailing matters for consideration was not universally well received. On the back of this I've read  and reread it several times and while it may not have been written in the most positive of tones it did convey exactly what I wanted to say at the time. Like every business at present we are in a battle for our survival and the tone of the document is a reflection of the seriousness of the situation and intended to let you know that if we go back doing the same things as we have been doing over the past few years we will not survive. It is my intention that the business not only survive but grow and to do this it will require radical changes.

This is the ideal time to begin to implement these changes and I look forward to  hearing from each of you what you have done as regards the element you were responsible for (K re procedures, A re System and J re Calls).

Mileage.

 On the 30th April the Director received a mileage payment request from the Complainant for the month of April. It was at half the level of the usual mileage. The Complainant gets paid a  mileage allowance for working in the  Swords store. The store was not open during the month of April.

The Respondent points out that the Complainant started with Total Tiles   in Late April 2016. As they do with all employees starting it was agreed that his salary starting would be the same as what he was then earning in his previous job. However it was also agreed that a mileage  allowance would be paid as his main job was based in Parkwest and he had to travel once a week to the  Swords store. In Autumn 2017 this mileage allowance was increased as he was now travelling to both our Swords and Terenure stores.

In Jan 2018 the Complainant moved to the Swords store 5 days a week and it was increased further. In Oct 19 it was reduced again as he was now back in Parkwest but it was reinstated in March 20 as he was again back in Swords. For March 2020 he worked a half month and was  paid mileage for a half month.

The Respondent contends that it was inconceivable that the Complainant would claim for April when no travel took place.

There followed a contention from the Complainant that the mileage expense he was receiving was a wage increase and this is denied by the Respondent. The Respondent points out that he has spent the last month trying to make cuts everywhere possible to avoid having to make cuts to salary as many companies in the current pandemic are doing. The Respondent asked the Complainant to “cop – on” in relation to his claims for mileage at a time when he was doing no travelling.

The Respondent then requested the Complainant to read the document he had circulated regarding the way forward for the company and pointed out that if we are not all on-board it will not work.

In reply the Complainant sent an email stating “this is disgraceful, you have now resorted to a level I thought wasn’t possible. You know that the wage increase was included in what was termed ‘Mileage’.

The Respondent then replied, “That’s it – make your mind up what you want to do but if the company is not getting a fully committed team player there really isn’t a place for you here”.

To which the Complainant replied:

“Here we go with another shove towards the door because I disagree with you. You have resorted to this tactic so much it is now very clear what your intentions are and were with previous employees. Like I said previously, if you want me to leave the company then you should say so and fire me.

I await your decision on whether you fire me or not”

The Respondent replied:

“Its not a shove towards the door. If and when I want to fire you I will do so. I’m sure you have your unfair dismissals case mapped out in your head if I do – good luck with it.

Later the Respondent stated:

“I’ve no desire to fire you but I have no issue in doing it if that’s what needs to be done. The mails of 5th April and yesterday map out what needs to be done. Let me know if you wish to do them or not. As mentioned it requires 4 committed dedicated people to make this work. Let me know before 1.00pm if you will be one of them”.

The exchange of emails continued, much of what has already been said was repeated.

On Friday 1st May the Complainant left work early  with no mention of whether or not he was committed to the Respondent’s proposal.

A message was sent advising that as per emails a decision was needed on his future by close of business on Tuesday 5th May.

On Tuesday 5th May the Respondent sent the Complainant at mid – day:

I hope you had a good weekend. Just a reminder that I need your decision on whether or not you wish to commit to the company’s plan going forward and will operate as a team player by close of business this evening.

Regardless of your decision we need to have a face to face (online) discussion. I propose tomorrow at 2.00pm for this.

The Complainant replied:

I have not had a good weekend due to the stress caused by your emails. I am not happy with being put into a position again where I have no choice but to accept what is offered to me.

I have had a severe migraine since last week and it has gotten far worse since opening this email which leads me to believe that these are the cause. I have cleared all emails up to this and some others, but I am unable to continue today.

I would suggest taking my planned time off / holidays two days early but that is clearly not an option as you have said that if I do not agree with your plan that my employment will be terminated.

I am disgusted by my treatment and would request any dealings (the Respondent) be handled by a third party as I do not wish to be accused of making up stories or having my mental state questioned again.

The Respondent replied:

You have not been asked to accept what is offered to you but rather to get on board with a company plan. The rest of the company has done this since 5th April you have refused to do so repeatedly. It is now one month and as repeatedly advised we need everyone on board. As advised on Friday if you cannot do so by close of business today I will have no choice but to terminate your employment.

I have no issue with you taking holidays now if that’s what you need to do and if your head is in such a place I would encourage it. However, there are certain issues that we will need to discuss asap (by online chat) before any such holidays can be agreed to.

You have made a claim for expenses despite not incurring any.

You have made an untrue allegation that what have always been expenses were somehow yourwages. I have documentary evidence that this is not the case.

Taken with your refusal to commit to doing your job / seeking to cherry pick which parts of your job you do or don’t do these are serious issues of misconduct and need to be addressed before any holidays would be taken.

Perhaps my asking if you are bonkers for expecting mileage when you have not made any trips is your idea of me questioning your mental state. If it is I think that’s more your problem than mine.

There will be nothing dealt with by a third party so again please come back to me by close of business today with your decision.

At 15.52 the Respondent sent the following email:

Further to our email correspondence on Friday and again today I note that despite multiple requests that you do so, no commitment to sign up to the company’s ideas for going forward has been forthcoming. The deadline of 5.00pm this evening was made perfectly clear to you.

This matter, outstanding since 5th April together with your insistence that you only do the parts of your job that you chose to do rather than those you are asked to do and your claiming last month of mileage expenses despite no mileage being done means that, as I had indicated I have no choice but to terminate your employment with the company effective immediately.

I am genuinely sorry it has come to this and I’m puzzled as to why you would not make your position clear when given multiple opportunities to do so.

Please send me the days you believe you are owed for holidays etc. and I will have these checked at this end. Please also revert with a proposal for how you can send we can collect any company property such as laptop, keys etc.

No response was received to this email.

Conclusion (directly quoted from the Respondent).

The Respondent disputes the Complainant’s contention that his employment was terminated if he did not agree to changes in work practices and that this was advised to him only on the afternoon of Friday 1st May and that he had to make his mind up by the next working day.

As the litany of correspondence above explains, the only real change he was asked to carry out was to explain the computer system he was working on to his colleagues. Other than that, all he was asked to do was to work hard and give his all.

The Respondent believes that money is at the root of this claim. There is no claim from the Complainant of anything to do with Mileage despite this being at the root of most of what transpired in April and May. As explained in the Matters for Discussion on Internet Call Document once the Complainant returned to his store (As he was due to do on 18th May) he would have been receiving the highest payment in the company bar none.

It was not in the company's interest to cease the Complainant’s employment. As you can see we were committed to our employees’ health, safety and wellbeing by closing on March 14th and continuing to pay them in full throughout the covid shutdown. Losing the Complainant meant we could not open as planned on the 18th May - we have had to advertise for and train a new employee and we will only reopen on June 9th.

Losing an employee who spent 4 years with you in a company of 4 is like losing a limb - it was not in our interests for it to happen but equally we could not have one person who was  not prepared to commit to do what was needed to be done and we could not tolerate that a  member of the company would claim for mileage expenses when no mileage was done.

As stated in the documents I could not understand why Anthony would not come back to     us on Friday 1st or Tuesday 5th but ultimately by not doing so he threatened the company's future leaving me with no choice but to terminate his employment. The whole situation was extremely unfortunate but not I believe unfair.

Complaint reference CA – 00036133 – 002 submitted under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

The Respondent accepts that payment in lieu of minimum notice was not paid and is due.

The Respondent contends that there were no payments due in lieu of untaken holidays, all holidays due were taken by the Complainant.

It is contended by the Complainant that he was told on the afternoon of Friday 1st of May that if he did not agree to the changes by close of business next working day (5th May) that his employment would be terminated. The Complainant states that he has a copy of the email where this was stated. His employment was terminated with no notice paid or given, his usual weekly payment was withheld on the Friday and when payment was made on 11th May, it did not include any amount for notice and was for only 3 days holiday payment when he contends that he was due 3 days from 2019 also.

 The Complainant states that he did not want his employment with the company to end and he did offer his opinion on why the changes were not viable.

Much of what the Complainant said and done can be seen in the email exchange summarised above.

Prior to making any finding or conclusions it is important that the parties understand what my job as the adjudication officer is. In one case, Looney and Co v Looney (UD 843 / 1984) the Employment Appeals Tribunal summarised as follows:

‘It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT  to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged’

There are therefore two items I must decide on:

1.       Were the employer’s actions the actions of a reasonable employer?

2.       Were proper procedures followed by the employer?

In the instant case the fact of dismissal is not in dispute.

All employers are advised to adhere to its disciplinary policy and procedures or if there are no policy and procedure employers are strongly advised to follow the code of practice on Grievance and Disciplinary Procedures and the rules of natural justice. This code of practice is contained within S.I. 146 / 2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

In the instant case there were no procedures followed at all i.e. no disciplinary interview was held with the Complainant, he was not offered the right of representation and he was not offered the opportunity to appeal the decision to dismiss him.

I have no option but to find that due to the total lack of procedures the Complainant was unfairly dismissed, I find that the complaint as presented under section 8 of the Unfair Dismissals Act, 1977 is well founded.

At hearing the Complainant presented no evidence that would suggest that he has made any effort to mitigate his loss.

Complaint reference CA – 00036133 – 002 submitted under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

The Respondent accepts that payment in lieu of minimum notice was not paid and is due.

Complaint reference CA – 00036132 – 001 & CA – 00036133 – 001 are the same complaints submitted under s.8 of the Unfair Dismissals Act, 1977.

I order the Respondent to pay compensation of 4 weeks pay to the Complainant. From figures supplied by the Complainant and not challenged by the Respondent this will amount to €2,258.76.

Complaint reference CA – 00036133 – 002 submitted under Section 12 of the Minimum Notice & Terms of Employment Act, 1973.

The Complainant, by statute, was entitled to two weeks pay in lieu of notice. I now order the Respondent to make a payment of €1,129.38 to the Complainant.

Monies awarded should be paid within 42 days from the date of this decision.

Unfair Dismissals Act, 1977 – no procedures followed.

Minimum Notice and Terms of Employment Act, 1973.