ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00035648
Barry O’Mahony, B.L., instructed by Sandra McAleer Solicitors
Mark Edmund Doyle, Actons Solicitors
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Date of Adjudication Hearing: 09/08/2022 and 27/10/2022
Workplace Relations Commission Adjudication Officer: John Harraghy
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
All evidence in this case was taken on oath or affirmation. All parties were facilitated with full cross-examination. The matter was heard over two days. The complainant was represented by Mr Barry O’Mahony, B.L. instructed by Sandra McAleer Solicitors and the respondent was represented by Actons Solicitors. Two witnesses gave evidence for the respondent, Ms Patrice Murphy and Mr John O’Reilly. The complainant also gave evidence.
The complainant provided a written submission and a suite of appendices. An additional submission in relation to mitigation of loss was received from the complainant after the first hearing. The respondent did not provide any written submissions in advance of the hearings.
At the end of the second day the parties were requested by the Adjudicator to submit written closing statements and they were instructed to do so by end of December 2022. These were received as requested.
The complainant commenced employment with the respondent on 23/05/2016 as a graphic designer. He was paid €932.07 gross per month (€739.75 net) and worked a 39-hour week. The complainant was placed on temporary lay-off due to the COVID-19 pandemic on 23/03/2020. The complainant sought clarification in relation to his return to work on a number of occasions but he was not taken back. On 19/09/2021 the complainant’s legal representative contacted the respondent to say that he considered his employment to have been terminated. A further letter issued on 06/10/2021 to the respondent stating that the complainant was dismissed. It was also stated that if this was not the case, he was now resigning his position due to the conduct of the respondent.
Summary of Complainant’s Case:
The complainant is a graphic designer and commenced employment with the respondent on 23/05/2016. He was placed on temporary lay-off due to COVID-19 on 23/03/2020. The complainant sought clarification from the respondent about returning to work on 7/6/2020. The complainant was advised that the area where he worked would be the last to open up: “the events will be the last area which was a big part of yours”.
It was submitted on behalf of the complainant that a number of events took place, which in their totality, provide examples of the respondent’s attempts to exclude the complainant:
a) The complainant was made aware around 29/06/2020 that another employee (DB) resigned from the respondent and rather than bring the complainant back to work another employee (CB) with less service than the complainant was taken back.
b) On 10/07/2020 the complainant, by chance, became aware of a staff barbeque (BBQ). He was not invited.
c) Around 14/07/2020 the complainant received an e mail from the respondent requesting the return of this Airport Access badge as it was due to expire due to lack of use. The complainant could have renewed the badge but the request for the return of the badge indicates that the complainant would not be asked to return to work.
d) In the same e mail of 14/07/2020 the respondent confirmed that if any employment became available in other departments, he would offer this to the complainant. The complainant is aware that numerous new employees were hired by the respondent. None of these roles was offered to the complainant.
e) The complainant raised a formal grievance with his line manager on 17/07/2020 in accordance with the respondent’s grievance policy. His line manager did not respond. The managing director did respond but “failed, refused and or neglected to commence the grievance procedure”.
f) The respondent invested in new machines and, new employees who would not have the depth of experience the complainant had, were hired. The complainant’s e mail was blocked without notice and the office he worked in no longer exists. The entire department the complainant worked in moved premises. The complainant had no notice of this.
g) In February 2021 the respondent advertised for an employee with the skills and attributes the complainant possessed. The respondent hired another employee who was laid off at the same time as the complainant for this role but only had one years’ experience.
h) The respondent invested in a rebranding and a new website relaunch. The team was introduced on the website. The complainant was excluded from the website.
i) The complainant had previously lodged grievance in relation to the use of CCTV. It was submitted on behalf of the complainant that his dismissal arose or was influenced by raising this grievance.
The complainant’s solicitor wrote to the respondent on 19/09/2021 in relation to all these matters and informed the respondent that he considered his employment terminated and seeking proposals from the respondent. This letter was not replied to apart from a telephone call from the respondent’s solicitors to the complainant’s solicitor. The respondent’s solicitor denied all the matters raised in the letter.
A further letter was issued on 6/10/2021 to the respondent. No response was forthcoming other than to state that the complainant had not been dismissed. This letter also clarified that if the complainant was not dismissed, he was resigning his position due to the conduct of the respondent.
This conduct included failing to provide him with work, hiring other employees while the complainant was on lay-off, failing to pay public holiday pay, failing to progress the complainant’s grievance, exclusion from work e mail system, the respondent’s website and the exclusion from the respondent’s staff barbeque.
The complainant outlined details of his attempts to find alternative employment. He carried out on-line searches and met with former colleagues to see what options might be available. He started these searches for other employment around 23/08/2021. Some of his applications were for areas outside his normal area of expertise. In mid-October 2021 he received a verbal offer of employment, but no start date was confirmed. Meanwhile he was offered a role with another company, and he took this offer and started on 01/11/2021 with a salary of €36,000 which was increased to €40,00 from 01/04/2022. The complainant confirmed that his salary with the respondent was €48,000.
The complainant was asked when he first raised a query about remote access, and he referred to the sequence of e mails to the respondent dated from 12/03/2020. The complainant explained that with the concerns circulating in relation to COVID-19 he thought that remote access should be planned for. The respondent did not accept that he could work from home. The complainant confirmed that he worked from home for one week and was then on lay-off.
The complainant was asked how regularly he undertook site visits as part of his work, and he confirmed that this depended on the client projects he was working on, but it could be once or twice per month. These visits were usually on the client’s premises or a site the client was working on.
The complainant was asked to clarify the position in relation to his airport airside pass. In order to remain valid this had to be used regularly and if a period of time elapsed then the pass timed out and was no longer valid.
The complainant was asked to confirm when he first asked the respondent about training on the SOLIDWORKS package. He referred to an e mail sent to the respondent on 27/05/2019 in which he requested training/upskilling on this package. The complainant did not receive a positive response to this request, and he asked again in June 2020 the respondent said that he could not afford it. He was aware that there was on-line training and he had said that he would be willing to attend the respondent’s premises on his own personal time to use the package. The complainant gave evidence that he was encouraged to upskill on this package by a colleague and he had a relevant background to enable him to learn this package.
The complainant was asked about the role which the respondent advertised in February 2021 for a product designer. He confirmed that he met all the criteria outlined apart from the SOLIDWORKS package.
The complainant was cross examined by the respondent’s representative. The complainant was asked when he made the decision that he was constructively dismissed, and he said that he had done so on 19/08/2021. He confirmed that he had obtained advice from his solicitor at that time. The complainant was asked to outline his personal circumstances in March 2020. He said that it was unclear what was happening in relation to COVID-19. He was concerned about what would happen if the Government said that employees could not attend the office. He did not want to be in a position where he had to self-isolate due to his family circumstances. The complainant was asked what would happen to the events and exhibition sector if employees were not allowed attend work. The complainant said that events sector would have to close. The complainant confirmed that exhibitions were closed, and he was unsure when they opened again. The complainant was asked to explain why he forwarded e mails from his work account to his personal account. He explained that he forwarded anything of a personal nature which related to his employment.
The complainant was asked if it was reasonable for the respondent to lay him off in view of the “Reduced Working Hours” stipulation in his contract of employment and he agreed that it was fair. The complainant was asked if he agreed that the respondent done nothing wrong in terms of the lay-off. The complainant said that he felt this should have been done on an individual basis and not by means of a group e mail.
It was put to the complainant that his contract of employment had a “Restrictions” clause which meant that he was not to undertake any activity or business activity which could cause a conflict of interest with the respondent. The complainant confirmed that he had read that provision. The respondent’s representative opened a number of pages which were taken from a website under the aegis of the complainant’s name. He was asked if this was done to generate business while on lay-off. The complainant gave evidence that the pages referred to a website that he created as part of a portfolio he was required to submit as part of a training course he undertook in 2021. He confirmed that there were no inquiries received from this site and he was not in receipt of any payment as a result of this web site. The complainant’s representative produced a number of other pages which he said were taken from the web page and indicated that these showed that there were inquiries being sent to the complainant. The complainant clarified that this was not correct, and these were not inquiries and were in fact a breakdown of the contents of each page. The complainant again confirmed that no inquiries were received from this page. It was put to the complainant that he did not feel bound by the “Restrictions” clause in his contract of employment. The complainant confirmed that he did not believe that he was breaching his contract of employment. It was put to the complainant that he added material to this web site from February 2021 to August 2021 while he was employed by the respondent. The complainant confirmed that he did not use any “trade secrets” in those web pages.
The complainant was then cross examined on his understanding of the “SOLIDWORKS” package. The complainant said that one did not need formal qualifications to use this, but he agreed that training would help someone use this. This could include self-training, third party training or a combination of both. The complainant said that he believed that anyone could be trained to use this package, but it would depend on their understanding of basic principles such as 2D and 3D modelling. The complainant was asked if SOLIDWORKS was analogous to the work he was doing. The complainant said that he felt that he could transition to the SOLIDWORKS package fairly easily.
It was put to the complainant that he volunteered to undertake training in the e mail he sent in May 2019, and he agreed. The complainant was asked how long he estimated it would take him to become competent in SOLIDWORKS and he said that would depend on the projects he would be working on. It was put to the complainant that the essential difference between the work he was doing and the work that SOLIDWORKS was required for was significantly different. The complainant disagreed and said that he was competent doing three-dimensional work. He confirmed his understanding that SOLIDWORKS was not a four-dimensional package. The complainant also confirmed that he does not use SOLIDWORKS in his current employment and he has not undertaken any training.
The respondent’s representative called an “expert witness” - Mr Brian Bolger. Mr Bolger outlined his qualifications and said that he had undergone training in the SOLIDWORKS software which he said is used in the design and manufacturing industry. The package has three 500-page manuals and there are four levels of training required. This is provided by a third party. Mr Bolger said that he did not consider that this package could be used in graphic design. He also gave evidence that he did not consider it realistic that one could self-train. The basic fundamentals might be learned but as SOLIDWORKS is a CAD based software a more formal training programme is required. Mr Bolger also confirmed that there is no formal qualification for this programme.
Under cross examination Mr Bolger outlined details of his career and in particular that he had spent 20 years working as a senior designer. He also gave details of the product types that he was involved in. Mr Bolger confirmed that he had no formal qualification to train and is not a certified trainer for SOLIDWORKS. Mr Bolger outlined that he undertook a 4–5-day training programme in SOLIDWORKS and it was his view that you needed to have a CAD qualification to undertake this training. It was put to Mr Bolger that a colleague of the complainant’s, Mr KL, was working in SOLIDWORKS for the respondent and he had no formal training in SOLIDWORKS. Mr Bolger said that he was not aware of this person. Mr Bolger agreed that in relation to such packages different people learn differently and can pick up the training at different paces. It was also put to Mr Bolger that if someone was not working, they would have plenty of time to work and learn SOLIDWORKS. Mr Bolger said that in such cases a person would miss out on the fundamentals of the package.
The cross examination of the complainant continued. It was put to the complainant that in view of the evidence of Mr Bolger it was clear that to become proficient in SOLIDWORKS it would take time and dedication. The complainant replied that he would have followed the guidelines in relation to the package. The complainant was asked if he believed that there was work available for him with the respondent and he replied that he was confident that there was. The complainant said that he was confident because he was in contact with colleagues, and they told him about specific projects they were working on.
The complainant was asked when he had anticipated that he would use the SOLIDWORKS in the respondent’s premises. He replied that as he was laid off, he could have made himself available to attend and use the computer with the package installed.
The complainant confirmed that he did not upskill in SOLIDWORKS since he left his employment with the respondent. His present role in in design work and mainly related to signage and he confirmed that it would be analogous to his role with the respondent.
The complainant was asked to explain his contact with a former employee of the respondent’s and the nature of the job he was looking for with him. The complainant confirmed that he was looking for a similar role in the industry and print and signage were the areas that the former colleague was recruiting for. In relation to the job that he was offered, the complainant confirmed that there was no job title, and it was a designer role with that company. There was no formal contract issued and there was no indication of a potential start date. The complainant also confirmed that here was no discussion about the events industry being closed with this company.
It was put to the complainant that the respondent never moved from its position that he had a job with them. The complainant confirmed that he did not see it that way. The complainant also confirmed that he did not tell the respondent that he was offered a job and he confirmed that once he had a firm offer of a job, he wanted to accept it as quickly as possible given the period of time he was on lay-off. The complainant confirmed that he did not get in touch with the respondent as he had been in regular contact and was getting nowhere with them. He was left on the long finger, and they were not offering him any work.
The complainant was also asked to outline what other jobs he sought. He said that in addition to those already mentioned he also looked at air traffic control and sales assistant roles. It was put to the complainant that if he was unable to obtain work in the industry from 17 August until mid-November that would vindicate the respondent’s position that there was no work available and 90% of the complainant ‘s work was related to the events industry which was closed during that time due to the COVID-19 pandemic.
The complainant was asked about the invitation to the respondent’s BBQ and he confirmed that he was not included on the invitation e-mail. It was put to him that he was made aware of the event, and he could have attended but it suited his narrative not to attend. The complainant said that as he was omitted from the e mail circulation he was not invited.
The complainant was asked about the airport badge and his understanding of why he was asked to return this. He outlined that this kind of badge has to be “sponsored” by someone in the airport and if it is not used it can be recalled by the company. He confirmed that if the badge was not used within a predetermined period the badge is cancelled. He confirmed that he was asked to return it for security reasons. It was put to the complainant that he was wrong in his assertion that being asked to return the badge was part some plan on the part of the respondent. The complainant outlined the process required in order to obtain the badge in the first instance. The complainant said that he believed that if the respondent intended him to return to work, they could have asked him to swipe the badge at the airport as this was a much easier option than having to reapply for a new badge. The complainant confirmed that it would only take him about five minutes to swipe the card to keep it up to date.
Summary of Respondent’s Case:
The complainant was employed as a graphic designer with the respondent. He commenced employment on 23/06/2016. He was a long standing and well-liked employee. The complainant was working in the Events and Exhibitions section with the respondent. The respondent notes that the context which led to these complaints is critical to understanding the decisions that were made. The respondent submits that most of the complainant’s complaints arose during the first four months of the lockdown. Due to COVID-19 this area of the business was closed by the Government. During the period of closure there were no opportunities to reopen and commence trading. This section of the respondent’s business did not open again until November 2021. The complainant was laid off in late March 2020. The respondent relies on the relevant clause in the contract of employment “Reduced Working Hours” which stated that “The employer reserves the right to reduce your working hours, where though circumstances beyond its control it is unable to maintain you in employment. You will receive as much notice as is reasonably possible prior to such lay-off or short time – you will not be paid during the lay-off period”. The complainant was notified of the lay-off on 27/03/2020 by e mail.
It was submitted on behalf of the respondent that the complainant was not dismissed or constructively dismissed. The respondent denies that he was deliberately excluded from a BBQ invitation. Issues in relation to holiday pay were caused by the agent dealing with the respondent’s payroll and were not known by the respondent until the complainant brought it to their attention.
The respondent denies that the complainant’s airport badge was deliberately stopped and submits that the reason it was stopped was due to the airport security process which occurs when a badge is not used for a certain period of time. The respondent also submits that a position it advertised was not suitable for the complainant. This role had a specific requirement for an AutoCAD qualification and skills in SOLIDWORKS and the complainant did not possess either.
Two witnesses gave evidence on behalf of the respondent. Ms Patrice Murphy is the General Manager with the respondent. She also has a sales role. Typically, she would deal with staff, clients and production matters and has been working for the respondent for 10 years. Ms Murphy gave evidence in relation to the work changes due to COVID-19 and explained that everyone assisted and done everything they could. Ms Murphy said that their turnover was down, and this happened overnight.
Ms Murphy was asked if the complainant was paid for work done while on lay-off and she confirmed that he was. She was asked what evidence she had of this, and she referred to two e mails, one from the complainant to Ms N and the other one from Mr John O’Reilly.
Ms Murphy gave evidence in relation how the respondent dealt with the layoff. She explained that this was done on a day-to-day basis and was dependent on how work was falling off. Ms Murphy gave evidence that the complainant was a well-respected employee and there were no complaints about him. Ms Murphy said that she had worked closely with the complainant. Ms Murphy said that she would describe the complainant as “One of the best reboard engineers”. Ms Murphy confirmed that the complainant worked in the events section and worked on the KSG account. Ms Murphy gave evidence that 80% to 90% of the events work was reboard based. Ms Murphy also gave evidence in relation to the resignation of the events manager and his move to a rival company.
Ms Murphy was asked to clarify who in the company operated the SOLIDWORKS software and she outlined that one person (Mr K) had a City & Guilds qualification in SOLIDWORKS. Ms Murphy was asked if the complainant could end up being a competent person in SOLIDWORKS and she said that he may be familiar with aspects of this package, but it was different.
Ms Murphy also confirmed that the complainant was invited to the BBQ and confirmed that she sent out an e mail and asked that it be shared. She denied that she made a conscious decision not to invite the complainant. Ms Murphy said that she did not think anything about the fact that the complainant did not attend.
Ms Murphy confirmed that she received a complaint from the complainant but at the time she was not at work due to health-related issues. Ms Murphy confirmed that she did forward the complainant’s e mail to Mr John O’Reilly, the Managing Director. Ms Murphy said that she felt that their grievance procedure had been complied with as the complaint was dealt after taking advice from their HR company and Mr John O’Reilly had responded to the complainant.
Ms Murphy gave evidence that she felt that the complainant was better suited to do certain works and she outlined these as working with certain companies. Ms Murphy confirmed that there was no conscious decision not to give work to the complainant.
Ms Murphy confirmed that issues in relation to outstanding payments to the complainant were now rectified.
Ms Murphy was asked if there was much work which required the use of SOLIDWORKS between April and June 2020. She was unsure of the exact amount and confirmed that there were two computers which had the software and the use of these is dependent on other work. Ms Murphy said that she was not sure if it would be realistic for the complainant to use the computer for training during this time and she also confirmed that the computer would not be available for the complainant to use during office hours for training purposes.
Ms Murphy gave evidence that there was no awkwardness or ill feeling between the respondent and the complainant. She confirmed that the complainant was well regarded.
Ms Murphy was asked what might have happened if the complainant rang on 23rd October to say that he was offered a job. She said that while it would be Mr O’Reilly’s decision, she would have no objection if he was returning. Ms Murphy was asked why she thought the complainant made a decision in August that he was dismissed, and she said that “it never made any sense to me”. Ms Murphy confirmed that the complainant “was not replaced in terms of his skill set”.
Ms Murphy also gave evidence in relation to the staff changes on the sales team in November 2021.
Ms Murphy was asked when the events industry opened up after the closure mandated by the Government. She was unsure of the exact date but knew that it was in December to January 2022 period. Ms Murphy confirmed that she would have expected the complainant to return when the work for the events industry resumed.
Ms Murphy was cross examined by Mr Barry O’Mahony B.L. Ms Murphy was asked if other people employed by the respondent done other jobs and took on alternative roles. She confirmed that they did. Ms Murphy confirmed that the complainant was not offered any other role while on lay-off. She said that there were twelve staff covering all roles during the lockdown period. It was put to Ms Murphy that the complainant could have done some of these roles and she said that she did not think he could as he would need to be able to use SOLIDWORKS. Ms Murphy did agree that the complainant could have assisted. Ms Murphy was asked if she would agree that the e mail to the complainant on 27/03/2020 did not outline any reasons why employees were having their hours reduced, put on short-term work or being put on lay-off and she agreed that this was correct. Ms Murphy also agreed that there was no process in place to deal with lay-off and short-term working. Ms Murphy was asked about the staff BBQ, and she confirmed that while she did not directly invite the complainant, he was informed about it by another colleague and so he was aware it was happening.
Ms Murphy was asked to review the complainant’s contract of employment and specifically the section titled “Grievance Procedure”. She agreed that the complainant had lodged a grievance and that he used the correct procedure for doing so. Ms Murphy said that the complainant was aware she was on sick leave when he sent her the grievance. Ms Murphy confirmed that given her circumstances she sent the grievance to Mr John O’Reilly. Ms Murphy gave evidence that she was not aware of any hearing in relation to the complainant’s grievance. It was put to Ms Murphy that in that case the respondent had breached the contract of employment by not adhering to the grievance policy. Ms Murphy said that she could not say that. It was then put to Ms Murphy that the grievance procedure was breached, and she said that “it must be”.
It was put to Ms Murphy that the complainant looked to be upskilled in 2019 and she confirmed that she had read that e mail. The complainant met with Mr O’Reilly in relation to this. Ms Murphy agreed that the complainant was not provided with any upskilling.
Ms Murphy was asked why the complainant was not asked to assist with the work being undertaken at the airport and she said that they had an installation crew on site there. Ms Murphy said that she would not agree that the complainant could have assisted. It was put to Ms Murphy that it was agreed that the complainant was an asset to the respondent, and they could have made an effort to keep him in employment. Ms Murphy said that there were a lot of employees that they did not offer work to.
In response to a question from the Adjudicator Ms Murphy confirmed that prior to the pandemic they employed 63 staff and they now had 62 staff.
Ms Murphy confirmed that she went to the complainant for most of her design work and that this was linked with event work. She agreed that 80% to 90% of the event work was done by the complainant. Ms Murphy was asked about the complainant’s involvement in the Musgrave account, and she said that the complainant had never done work on this account, and he would have no knowledge of their specifications. Ms Murphy confirmed that the complainant’s request to upskill was submitted while she was in hospital. She confirmed that there were two main computers in the design department and people would move from one to the other while working on a project. Ms Murphy said that she did not know if there was a spare machine for the complainant to use.
Ms Murphy was asked if there were jobs coming in from December 2021 to January 2022 and she confirmed that there were. Ms Murphy was asked if the complainant asked in November 2021 if he could get his job back what would her response be, and she said that she would not have any objection.
Ms Murphy was asked why she had no direct engagement with the complainant during the period of lay-off. She said that they did not have any work for the complainant to do.
Ms Murphy was asked if it was her evidence that she did not understand why the complainant thought he was dismissed. She confirmed that was correct.
Mr O’Mahony then put a number of scenarios to Ms Murphy which he said were a summary of the unreasonable conduct by the respondent:
· The respondent failed to provide the complainant with work from March 2020 to August 2021. Ms Murphy said that the complainant was on lay-off.
· The respondent failed to consider the complainant for other work. Ms Murphy said that there was no suitable work.
· The complainant was excluded from the company BBQ. Ms Murphy disagreed and said that he was not excluded.
· The complainant was asked to carry out unpaid work but was refused to return to work. Ms Murphy said that the complainant was paid for the work he was asked to do.
· The complainant had to return his airport security pass. Ms Murphy said that this was a matter for Mr John O’Reilly.
· The complainant has his access to his work e mail removed. Ms Murphy was not aware or did not ask for this to be done.
· The complainant was refused his upskilling request which would not have involved any cost to the respondent. Ms Murphy disagreed as there were only two computers where this software was installed.
· The complainant’s grievances were not investigated. Ms Murphy said that she thought this grievance was answered.
· The complainant was not informed that the premises he worked in had moved. Ms Murphy clarified that the building closed and moved into their main premises.
· The respondent failed to answer correspondence from the complainant or his representatives.
· The respondent recruited staff while the complainant remained on lay-off. Ms Murphy confirmed that these were recruited for different areas of the business. The events and exhibitions area were closed.
Ms Murphy was asked about the job advertisement for a product designer. Ms Murphy said that the complainant did not apply for this role.
It was put to Ms Murphy that given the circumstances it was within reason for the complainant to believe that he was constructively dismissed. Ms Murphy disagreed.
Ms Murphy was asked by the respondent’s representative how many employees who were on the e mail of 27th March in relation to lay-off raised an objection. She confirmed that it was only the complainant who objected. Ms Murphy was asked if the individuals on that list would have known the reason for the lay-off and she confirmed that they would, and she confirmed that there was no employee who did not understand what was happening at that time as a result of the pandemic.
Mr John O’Reilly have evidence on behalf of the respondent. He confirmed that he is the managing director, and his role is to ensure that everything is in place in order for the business to be able to operate and he provides reassurance to employees. Mr O’Reilly also gave evidence in relation to the turnover of the business prior to and after COVID-19. Mr O’Reilly gave evidence that pre pandemic he employed 63 staff and during the pandemic this was reduced to 12 and these were employed on a full time basis.
Mr O’Reilly was asked to outline what works the respondent was engaged in during the lockdown. He outlined that they were involved in the supply and installation of COVID-19 related products for the HSE and the airport and this work was for three to four months initially. Mr O’Reilly confirmed that the complainant was not equipped to undertake this work. Mr O’Reilly gave evidence that the events side of the business was not producing anything as the hospitality industry was closed and there were no promotions taking place. Mr O’Reilly was asked if there was a position or any work for the complainant. Mr O’Reilly said that he knows the complainant since 2017 and he was one of three designers on reboard. There was no time to train the complainant on the technical aspect as they were under pressure to manufacture and install the products. Mr O’Reilly was asked if the complainant could have installed these products. He replied that he knows the complainant and his wife, and he has been very accommodating to the complainant, and he did not want to put the complainant in a high-risk environment due to concerns about his wife.
Mr O’Reilly confirmed that the complainant regularly asked for work. Mr O’Reilly said that like most businesses they had to react to issues as they arose. Every month they thought it might improve. There was no planning during the COVID-19 period, it was all reacting to things as they arose. Mr O’Reilly was asked about his e mail of 27/03/2020 in relation to lay-off. Mr O’Reilly said that they had a large amount of work on at that time, but they had to put people on lay-off due to the restrictions. Mr O’Reilly gave evidence that the complainant was well aware of what was happening. Mr O’Reilly said that it was not conceivable that the complainant was not aware of the impact of COVID-19 as this was the topic that everyone was talking about. Mr O’Reilly confirmed that the complainant was not treated any different to any other employee. Mr O’Reilly outlined that his intention at all times was to do his best to keep the company going.
Mr O’Reilly was asked why the complainant was not upskilled in 2019 and he outlined that they were employing graphic designers and designers. He confirmed that if the complainant became a SOLIDWORKS operator there would be a job for him if and when there was a change.
Mr O’Reilly explained that the BBQ was something that was organised, and a general invite was sent out. There were no specific e mails sent. Mr O’Reilly also explained that the airport badge operates on a ten-week cycle and employees are reminded that it needs to be used within that cycle to keep it updated. When a badge is out of cycle the DAA nominated person informs the company and the badge is then requested and retained. When a badge is retained the process of getting another one has to commence.
Mr O’Reilly said that there was no “thought process” about edging the complainant out of the company. He has no ill feelings towards the complainant, and he does not hold any disrespect for the complainant.
Mr O’Reilly gave evidence that he thought that he had dealt with the complainant’s grievance of 16 July 2020 when he sent him a reply by e mail. If a formal meeting was required, he would have held one. Mr O’Reilly confirmed that what he outlined in his e mail of 17 July 2020 was true and that he was honest in his reply. That e mail outlined the position of the respondent as he understood it at that time. Mr O’Reilly confirmed that he did not feel aggrieved with the complainant for raising those issues. Mr O’Reilly also confirmed that other employees also raised queries either by e mail or dropping into the office.
Mr O’Reilly said that he was made aware of the complainant’s grievance by Ms Murphy who was on leave. Mr O’Reilly gave evidence that he was not aware that the complainant’s grievance “fell flat” but he understood that the complainant was not working as the events section were closed. Mr O’Reilly said that it was never his intention to close the company. Mr O’Reilly asked what he saw as the difference between the complainant’s role and SOLIDWORKS. He said that the complainant was no expert in SOLIDWORKS and that while he shared the same office as the two employees operating SOLIDWORKS, he cannot do what they do, and they can’t do what the complainant does. The skills do noy cross over.
Mr O’Reilly said that he could not see what warranted the complainant’s resignation on 17 August and that the pandemic may have been a factor. Mr O’Reilly said that the complainant still had a job with the respondent. Mr O’Reilly also confirmed that if the complainant rang him in October 2021 and said that he was offered another job, Mr O’Reilly said that he would have asked the complainant to come and work for him. The events and exhibitions sector opened up on 1st November.
Mr O’Reilly also confirmed that the complainant was not told about the office move as at that time they operated over four buildings and were consolidating their office space. The office move “means nothing more than this”. Mr O’Reilly gave evidence that the complainant’s contract of employment was issued following advice from ISME. Mr O’Reilly confirmed that he only recently became aware of the complainant’s web page, and he was disappointed that he had not asked him for permission to use some of the material relevant to his company. Mr O’Reilly confirmed that he always gives permission, but the employees must ask.
Mr O’Reilly was asked why he did not provide the complainant with work, and he replied that the only reason was that the events and exhibitions industry was closed because of the Government response to the COVID-19 pandemic.
Mr O’Reilly was asked to respond to a number of issues put forward by the complainant as being unreasonable actions by the respondent.
· Failure to provide the complainant with work from March 2020 to August 2021. Mr O’Reilly stated that the reason there was no work for the complainant was that he was operating in accordance with Government guidelines at that time.
· The respondent failed to consider the complainant for other work. Mr O’Reilly said that there was no suitable work as the complainant worked in the events and exhibitions area which was closed due to Government restrictions.
· The complainant was excluded from the company BBQ. Mr O’Reilly did not issue the invitation, but he understood that a general invitation was issued, and people were asked to pass the word around.
· The complainant was asked to carry out unpaid work but was refused to return to work. Mr O’Reilly said that the complainant was paid by means of vouchers on three occasions.
· The complainant had to return his airport security pass. Mr O’Reilly outlined the process for keeping the pass up to date. Once the pass had lapsed the respondent had no option but to follow the airport process for return and renewal. This process was known to all their employees who worked in the airport.
· The complainant has his access to his work e mail removed. Mr O’Reilly said that he understood that the complainant’s e mail access ceased on 23rd October 2021.
· The complainant was refused his upskilling work which would not have involved any cost to the respondent. Mr O’Reilly said that the only reason the complainant was not upskilled was that he already had two qualified staff working on SOLIDWORKS and he had only two licences for this software. It was not realistic or practical to have a third person working on this platform.
· The complainant’s grievances were not investigated. Mr O’Reilly said that given that they were operating in a COVID-19 environment he considered that the e mail response was sufficient to deal with the complainant’s grievance.
· The complainant was not informed that the premises he worked in had moved. Mr O’Reilly said that he had already outlined that they were in the process of consolidating their office space and that was the reason that office was moved into existing office space.
· The respondent failed to answer correspondence from the complainant or his representatives.
· The respondent recruited staff while the complainant remained on lay-off. Any recruitment was only to the areas that were allowed to open. The events and exhibitions section remained closed and there was no recruitment to that area.
Mr John O’Reilly was cross examined by Mr O’Mahoney, B.L. Mr O’ Reilly confirmed that the turnover was reduced by about 40% during the pandemic. Mr O’Reilly confirmed that their staffing reduced to 12 people and that as a result of the Government directive they were only doing emergency work and retail work for stores that were deemed to be essential services. It was put to Mr O’Reilly that a group e mail was not an appropriate means to inform the complainant that he was to be put on lay-off. Mr O’Reilly said that all staff were affected and there were conversations going on. The e mail was an instruction to payroll. Mr O’Reilly said that the e mail was appropriate when looked at in the context of what was happening at that time.
Mr O’Reilly was asked if the complainant could have installed the screens that were required as a result of the pandemic. Mr O’Reilly confirmed that he was aware that the complainant’s wife had a health issue, and he did not want to put him in a compromising position in that regard. However, Mr O’Reilly confirmed that he did not ask the complainant if he wanted to do this work. It was put to Mr O’Reilly that the complainant consistently contacted him looking for work and Mr O’Reilly said that he was not going to put anyone at risk. Mr O’Reilly was asked if he offered the complainant any work and he confirmed that he did not.
Mr O’Reilly was asked if there was a list of those invited to the BBQ and he confirmed that he did not have a list. The e mail was sent, and people were asked to inform others. Mr O’Reilly said that he was aware the complainant knew about the BBQ but chose not to attend.
It was put to Mr O’Reilly that the complainant’s grievance was not dealt with. Mr O’Reilly gave evidence that he believed that he had dealt with each and every one of the complainant’s issues when he replied to his e mail. Mr O’Reilly confirmed that he did not meet with the complainant in relation to his grievance.
Mr O’Reilly was asked if he was aware of the flexibility element in the complainant’s contract of employment. Mr O’Reilly confirmed that there was, and he also agreed that the complainant was consistently looking for work. Mr O’Reilly also confirmed that he took people back to work as soon as the work in their area opened. It was put to Mr O’Reilly that the complainant’s post was no longer there, and he confirmed that the complainant’s post was always there, and he never told the complainant that he was dismissed.
It was put to Mr O’Reilly that the complainant’s grievance outlined in the e mail of 14/7/20 was serious and that he should have brought the complainant in. Mr O’Reilly said that he felt that he had made an adequate reply. Mr O’Reilly was asked about the complainant’s airport access badge, and it was put to him that the complainant was never reminded about how it could lapse. Mr O’Reilly described that proposition as “rubbish” and said that all users were reminded by Badge Access Control.
Mr O’Reilly was asked if his e mail to the complainant dated 17/7/2020 in which he stated that “I have about 10% of staff still not back or replaced…” was correct and he confirmed that it was. Mr O’Reilly was asked to confirm that out of all his staff one of the most skilled was still not back at work. He confirmed that the complainant was not back at work until the events and exhibitions opened up and this work accounted for approximately 30% of his business.
Mr O’Reilly was asked to outline details of how the respondent utilised the TWSS scheme and he outlined that this as a help support system and an alternative to the PUP payment. It was not correct to say that there was no cost to the respondent in relation to TWSS.
Mr O’Reilly was asked to outline the respondent’s procedures in relation to bringing people back to work after a period of lay-off. He outlined that this depended on the area of work involved and that the criteria were to bring back the best people for the job that needed to be done.
Mr O’Reilly was asked if he acknowledged that the complainant had raised a specific and formal grievance in his e mail on 17/7/2020. He confirmed that was correct. Mr O’Reilly was asked if he would accept that the manner in which the respondent dealt with the complainant’s grievance amounted to a breach of his contract and Mr O’Reilly confirmed that he would accept that. Mr O’Reilly also confirmed that the complainant did not raise the matter again until a letter was sent from his legal representatives.
Mr O’Reilly was asked if confirmed that the complainant was given vouchers for work done when on lay-off and he confirmed that this was correct. It was put to Mr O’Reilly that this was a breach of the contract of employment and Mr O’Reilly said that he was not in a position to say so.
It was put to Mr O’Reilly that the job advertisement for a product designer was a suitable post for the complainant. Mr O’Reilly said that he would not accept that as the complainant has a different skill set. There is a vast difference between the skills of a product designer and a graphic designer, and these skills are not interchangeable with these roles.
It was also put to Mr O’Reilly that the complainant had previously worked product design and Mr O’Reilly disagrees saying that what the complainant done was graphic design work.
Mr O’Reilly confirmed that their new website was up and running before the complainant left his employment and he confirmed that was correct. The reason the complainant’s picture was not included was purely down to the fact that he was not back at the office.
Mr O’Reilly was asked if he agreed that the complainant was not provided with work by the respondent. Mr O’Reilly disagreed and outlined that the only reason the complainant did not get work was because of the Government decision to close the events and exhibitions industry.
Mr O’Reilly confirmed in redirection that if the complainant came back to work, he would be doing the same work.
Findings and Conclusions:
Section 1 of the Unfair Dismissals Act 1977, as amended, in relevant part, states as follows:
(1) “In this Act –
“dismissal” in relation to an employee means – (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, (b) 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, or (c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;”
Section 6(1) of the Unfair Dismissals Act, 1977 provides that “the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.
Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:
“4) without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dis missal, if it results wholly or mainly from one or more of the following”
(a) The capability, competence or qualification of the employee for performing work of the kind which he was employed by the employer to do,
(b) The conduct of the employee,
(c) The redundancy of the employee, and
(d) The employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute”.
Section 6(6) of the Act states:
“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal”.
Section 7 of the Act, in relevant part, make provision as follows:
“(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had …
(a) To the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal”.
I note in this case that dismissal as a fact is in dispute. The respondent submits that they continued to employ the complainant in accordance with the Government guidelines in place because of the COVID-19 pandemic. The complainant always had a job and the fact that the area where the complainant worked – Events and Exhibitions – was closed due to the mandatory restrictions is not a credible proposition that his contract of employment was repudiated. The respondent believes that they behaved reasonably, correctly and in accordance with the Government guidelines. The respondent submits that the complainant left his employment.
The complainant considers that he was dismissed, or constructively dismissed, by the respondent on 19/8/2021. The complainant was placed on lay-off on 27/3/2020 and he repeatedly asked for clarification about when he would return to work, even in an alternative role. He submitted a detailed formal grievance on 14/7/2020 but was not given a grievance hearing. The respondent advertised for alternative role which the complainant believes that he could have undertaken. The complainant instructed his solicitors to take matters up with the respondent but none of his issues were addressed. The complainant was not provided with any work by the respondent, and he informed the respondent on 19/8/2020 that he considered himself to be dismissed.
In situations where the fact of dismissal is in dispute it is for the complainant to establish that a dismissal in line with the definition set out in the Act occurred. The complainant gave clear evidence that he submitted a letter stating that he was dismissed by the respondent on or around 19/8/2020 and if he has not been dismissed, he resigns with immediate effect as a result of the conduct of the respondent. The response from the respondent’s legal representative confirmed that the complainant was still employed and that the area where he worked was starting to open up. There was no response to the issues previously outlined on behalf of the complainant.
The complainant outlined a number of areas which grounded his complaint of unfair dismissal. These included a BBQ invitation, payment for work done, Security Pass, Upskilling request, omission from new web site, not offered work and non-adherence to a grievance procedure. I accept that there can be a valid explanation for most of these events and indeed the context in which the occurred may also be a factor. What is clear is the effect of the totality of these events had on the complainant. They reinforced his belief that the respondent was not engaging with him in a meaningful way. The respondent stated that they held the complainant in high regard, so this mixed messaging was not helpful. I note that the respondent submits that this could be “an example of different people reacting differently to stressful situations which are outside everybody’s control”. These incidents do not in themselves constitute a dismissal by the respondent.
However, where the fact of dismissal is in dispute a complainant must establish that his employment came to an end in circumstances amounting to a dismissal as defined by the Act. In order to have a successful claim of constructive dismissal under the Act, a complainant must demonstrate that his decision to resign his employment resulted from either a repudiatory breach of his contract of employment by the employer or such was the unreasonable behaviour by the employer that he could not fairly be expected to put up with it any longer.
The question for the Adjudicator then is was there a repudiatory breach of the complainant’s contract of employment.
The complainant submits that his contract of employment was effectively terminated on or around 19/8/2020. At that stage he was on lay-off since 27/3/2020 and he had made several requests for clarification in relation to his return to work. The complainant asserts that the respondent or its representatives failed to respond to his detailed grievance which was submitted on 14/7/2020 and subsequently by his solicitors.
In order for a breach to amount to a repudiatory breach it must constitute a fundamental breach of the contract of employment. A repudiatory breach allows a party not in breach to accept the breach and affirm or to repudiate the contract. If an employee decides to repudiate the contract by resigning, he needs to do so in a timely manner as otherwise if he continues to work it can be taken to be an affirmation.
The test by which a repudiatory breach of contract can be identified was set out by Lord Denning M.R. in the case of Western Excavating Limited (ECC) v Sharp  IRLR 332 as:
“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”.
The complainant was on a period of lay-off from 27/3/2020 and there was no clarity in relation to when events and exhibitions were opening. Mr O’Reilly gave evidence that the complainant was held in high regard but that the relationship deteriorated when he opted to have legal representation.
Having considered the evidence at the hearings and the submissions of the parties I am satisfied that:
a) the respondent failed to deal with the complainant’s grievance in line with the grievance procedure outlined in the contract of employment
b) the respondent failed to provide any meaningful work for the complainant
c) the respondent’s conduct amounted to a repudiatory breach of the complainant’s contract of employment.
I must also assess whether the complainant was entitled to terminate his employment because of the actions of the respondent. In cases of constructive dismissal, an adjudicator must examine the conduct of both parties. This involves giving an assessment of the events leading to the termination of the complainant’s employment.
At the hearings evidence was heard about the employment relationship between the parties which commenced on 23/6/2016. The complainant was described as a long standing and well-liked employee. The complainant and the respondent’s managing director would have met at social events over the years. The complainant was working in an area, Events and Exhibitions, and this was closed due the COVID-19 pandemic, and this resulted in the complainant being place on lay-off. The complainant sought clarification from the respondent during the lay-off period in relation to his return to work and conscious that others had returned. It is clear to me that the working relationship between the complainant and the respondent deteriorated during this four-month period and communication between the parties did not resolve matters. In addition to this a serious of events led the complainant to believe that the combined intention of these was to force him to leave the company. The question to be considered is whether the cumulative effect of all these interactions between the complainant and respondent were such as to damage the working relationship to the extent that it was reasonable for the complainant to resign.
The Act places a high burden on a complainant in a constructive dismissal case. In order to succeed in a claim of this nature, a complainant must establish that the employer’s unreasonable behaviour was such that he was justified in believing that he could no longer continue in the employment of the respondent. An employee must alert his employer to his situation by utilising the grievance procedure where wone exists in order to allow the employer an opportunity to rectify the problem before resigning.
The complainant in this case gave evidence that he submitted a formal grievance on 14/7/2020 to the managing director and on receipt of a short reply he then escalated this grievance to the General Manager and advised her that he was entitled to a hearing as per the terms of his contract of employment. No such hearing took place, and the grievance was not dealt with as per the complainant’s contract of employment. When the complainant’s legal representative contacted the respondent there was no attempt to rectify matters.
I am satisfied that the complainant attempted to raise a formal grievance, but the respondent circumvented its own procedure and did not have any engagement with the respondent. The complainant made many requests to clarify his position and there was a clear deficiency in the respondent’s dealings with the complainant and these actions by the respondent do not constitute what could be described as a reasonable response in relation to this matter. There is clear evidence from the respondent’s witnesses that they considered the grievance dealt with notwithstanding that they also confirmed that it was not dealt with in accordance with their grievance policy.
In view of these circumstances, I have concluded that the behaviour of the respondent was unreasonable such as to justify the complainant terminating his employment by way of constructive dismissal.
Having heard the parties on the three forms of redress available under the Act I have determined that compensation is the appropriate form of redress given the circumstances of this case.
To determine the appropriate level of compensation an Adjudicator is obliged to have regard to the terms of Section 7 of the Unfair Dismissals Act. The complainant is required to provide evidence that he made every effort to mitigate his loss arising from his dismissal. The complainant provided this evidence.
The complainant was on an annual salary of €48,000 when working for the respondent. He considered himself constructively dismissed on 19/8/2021. He obtained new employment on 01/11/2021 with an initial salary of €36,000 and this rose to €40,000. The losses for the period 19/8/2020 to 1/11/2021 amount to €9548.00 and for the period 01/11/2021 to 01/4/22 were €5000.00 and for the period 01/4/2021 to 31/12/2022 were €6000.00 and on-going loss of €677.00 per month.
The complainant is also entitled to “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”. This is calculated from the dates of 23/05/2016 to 19/08/2021 and €600 as his weekly wage. There are no breaks in service and the complainant did not contribute to his dismissal. It is just and equitable that the complainant be compensated in full for the loss of the accrued service. This is €6,440.00
I have determined that the complainant is entitled to compensation of €33,718 which is deemed to be just and equitable having regard to all the circumstances.
CA-00046770-003: Terms and Conditions of Employment. It was submitted on behalf of the complainant that the contract of employment, dated 1/10/2019, which was issued to the complainant does not contain all the information as required pursuant to the Terms of Employment (Information) Act 1994. In that context the contract is defective, and the breaches are of a serious nature. The respondent submits that the contact “is a precedent furnished by ISMT and deals with the complainant’s complaint from any reading of the Contract of Employment”.
It was submitted on behalf of the complainant that the case of A Doctor v A Public Service Provider  31 E.L.R. 159 is relevant. In that that it was held that a breach of the Act is an ongoing breach until such time as a breach is remedied or from the date of dismissal if it has not been remedied by the date of dismissal.
It was submitted on behalf of the complainant that the complainant’s contract of employment, dated 01/10/2019, does not contain the following as required by the Act:
· That the complainant may seek a statement pursuant to S.23 of the National Minimum Wage Act, 2000 contrary to s3(1) (ga)
· Pay reference period for the purposes of the National Minimum Wage Act 2000
· The number of hours which the employee is reasonably expected to work per day and per week
· The length of interval between the times at which remuneration is paid
· Any conditions related to overtime
· Details of any pension scheme including details regarding the employers PRSA
· Details of times and duration of rest periods and breaks referred to in S11, 12 and 14 of the Organisation of Working Time Act, 1977 pursuant to SI. 49 of 1998 Terms of Employment (Additional Information) Order 1998
· Grievance procedure and disciplinary procedure – SI 146 of 2000 Industrial Relations Act, 1990.
It has been held by the Labour Court that the obligation to provide basic information to an employee is not a complex matter and that attention to detail would enable compliance with the Act. The Labour Court has consistently found that there is no merit in the argument that if the breaches are of a technical nature which have no adverse consequences arising for the employee, then there is no case.
It is clear from the review of the complainant’s contract of employment that the information outlined above is not included and therefore the respondent is in breach of the Act.
I am guided by the Labour Court in Morehampton Foods Ltd v Gibbons TED 18/2017, where the Court confirmed that a failure to comply with s.2 of the Act “constitutes a single contravention of the Act” and that it was not the case that every omission from a statement mandated by s.3 constituted a stand-alone infringement to which the statutory limit on compensation should be separately applied. Having considered the evidence in this case I believe that the full compensatory limit under section 7(2) should be applied. I therefore order that the respondent pay the complainant the sum of €3,728.28 representing four week’s remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.
CA-00046770-001: Unfair Dismissal. In view of my findings in CA-00046770-002, I find that this complaint is not well founded.
CA-00046770-002: Unfair Dismissal. In find that the complainant was unfairly dismissed, and the respondent shall pay the complainant compensation of €33,718.00
CA-00046770-003: Terms and Conditions of Employment. I find that this complaint is well founded, and I order that the respondent pay the complainant the sum of €3,728.28 representing four week’s remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case.
Dated: 21st February 2023
Workplace Relations Commission Adjudication Officer: John Harraghy
COVID-19, constructive dismissal. Grievance procedure. Terms and conditions of employment.