Complainant

Respondent

Parties

Aleksandras Jacukevicius

ICM Company Management and Secretarial Services Limited

Representatives

Lina Tamuleviciene

 Represented by Management

Act

Complaint Reference No.

Date of Receipt

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

CA-00066492-001

06/10/2024

The complainant commenced employment with the respondent on June 15th 2018 as a mould maker.  He worked around 39 hours per week, although, at the hearing, he said that he frequently worked significantly more hours than this.  He was paid €18.00 per hour.  He went on holidays on July 18th 2024, and when he returned, the place at which he was employed in Duleek, County Meath was closed.  He contacted the manager, Mr Gabriel Mathews, on WhatsApp and he was informed that the company was closed for holidays.  At the hearing, the manager, Mr Mathews, told me that he had planned to close the business for holidays from July 19th until August 6th 2024, but that there was a delay completing work and instead, he closed from July 26th until August 12th.   In response to the complainant’s enquiry on August 6th, Mr Mathews said,

“Hi Alex,

We are on holidays.  Why are you in Duleek today?  You said in June that you were leaving the company and not coming back to work after your holidays and that you got a new job in Navan working on a machine.”

The complainant replied as follows:

“I said that I had such a proposal.  And I went to holiday, not quit.”

Mr Mathews paid the complainant his final wages on Friday, August 9th 2024.  The complainant made no further contact with the respondent, but he submitted this complaint to the WRC on October 6th 2024.  He claims that he did not resign and that his dismissal was unfair.  It is the position of the respondent that the complainant was not dismissed, but that, on June 28th 2024, he informed Mr Mathews of his intention to leave his job to start a new job in Navan, after he returned from his holidays.

In advance of the hearing, Mr Mathews provided copies of WhatsApp messages between him and the complainant in July and August 2024.  In his evidence, he said that the complainant told him in his office in Duleek around 9.50am on June 28th 2024, that he had got an easier job with a former employee and that he wouldn’t be coming back to work with the respondent after his holidays.  Mr Mathews said that he had planned to close after work on Friday, July 19th, but the complainant managed to get a cheaper flight for that day and Mr Mathews agreed that he could finish up on the 18th.  Because he was leaving the company, Mr Mathews said that he moved the complainant off a job he was working on in Emerald Park and, for the last few weeks of his employment, he assigned him work in the premises in Duleek.  Around 4.00pm on Thursday, July 18th, Mr Mathews said that he went to Duleek to meet the complainant and to go through his holiday pay and wages with him.  The complainant had already left and, at 5.19pm, Mr Mathews sent him a message:

Hi Alex,

You left early today and you didn’t ask me.  I wanted to go through your wages stuff with you.  I paid you today for last week and for the next two weeks’ holidays.  Then your final pay will be made to you on the next pay day of 9th August for this week’s work.  I also have to calculate what hours you have saved from before.  Thanks for working with us and Good Luck in your new job.”

The complainant replied at 5.23pm:

“Gabriel.  I have a flight at 6am, I need to be at the airport at least at 4, even earlier.  There are a lot of people, vacations.  All my hours are written on paper.

Thank you for taking care of my holiday.”

At the hearing, Mr Mathews pointed out that the complainant didn’t dispute the contents of the message on July 18th 2024 in which he referred to his final wages and wished him good luck in his new job.  Mr Mathews said that the complainant told everyone in the company that he was leaving, and that he also told people on their customer’s site in Emerald Park.

The complainant provided a submission in advance of the hearing in which he said that he didn’t give notice that he was leaving his job.  He said that he worked on the 18th of July until 4.00pm as agreed with Mr Mathews because he had to get an early flight the next day.  He said that he worked with another employee and they had finished their jobs and had no more work to do.  In his statement, he said that his colleague left an hour before him.  He said that he waited until 4.00pm in anticipation that Mr Mathews would arrive with more instructions, but when 4.00pm came, he finished his shift.  He said that he doesn’t know why Mr Mathews is saying that he resigned.

On behalf of the complainant, Ms Tamuleviciene said that he didn’t resign.  She said that the respondent has no written record of the complainant’s resignation and that he did not intend to resign.  He returned to work after his holidays to find that the company was closed.  For the previous four weeks she said that the complainant worked for 50 hours each week.  He never said that he was leaving and he never told anyone he was leaving.

Ms Tamuleviciene said that the complainant agreed with Mr Mathews that he would go on his holidays on July 18th and he left the workplace when all his work was completed.

Responding to Mr Mathews’ observation that the complainant made no response to his message wishing him good luck in his new job, Ms Tamuleviciene said that the complainant’s English is not good and that he was confused by this message.  He went to work on August 6th as if nothing had happened and he expected to return to his job.

A definition of “dismissal” is set out at section 1 of the Unfair Dismissals Act.  Dismissal is defined as the termination by the employer of the employee’s contract or, the termination by the employee of his contract.  At section 22.13 of “Redmond on Dismissal Law,” by Dr Desmond Ryan, (© Bloomsbury 2017), Dr Ryan refers to the general understanding of dismissal:

“In general a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt dismissal was intended or that it may be reasonably inferred.”

I have considered the evidence of the complainant and the manager, Mr Mathews, and it seems to me, particularly from the written evidence in the WhatsApp messages, that the complainant intended to leave his job.  I have based this conclusion on the complainant’s response to Mr Mathew’s message at 5.19pm on July 18th 2023 in which Mr Mathews wished him good luck in his new job.  It appears that the complainant understood the early part of this message, in which Mr Mathews said that he left work without asking him, because he explained that he had to be at the airport early the next morning.  He made no reply to the “good luck” wishes, but said simply, “Thank you for taking care of my holiday.”  It seems reasonable to infer that, if the complainant didn’t intend to leave his job, he would have said, “see you on August 6th” or something to that effect.

When he was back in Ireland on August 6th, the complainant sent Mr Mathews a message, asking him if the company was open.  Mr Mathews replied and said “we are on holidays” and then reminded the complainant that he had said that he was leaving.  The complainant replied, “I said that I had such a proposal.  And I went on holiday, not quit.”  It’s apparent from this that the complainant had a discussion with Mr Mathews about a new job.  It seems to me that an employee who informs their manager that they have an offer of a job is more than likely to be telling them that they are leaving to take up that job.

Three days later, on Friday, August 9th 2024, Mr Mathews sent the complainant a message confirming his understanding that “…you did quit your job with us and you told everyone here that you were leaving and not coming back after your holidays.”  Mr Mathews confirmed to the complainant that he had transferred his final wages to his bank account and had paid him for petrol.  A reasonable employee in this predicament who did not intend to leave their job would have contacted their employer immediately and looked for a meeting to discuss returning to work.  The complainant could have attended at his workplace on Monday, August 12th, with the intention of returning or with the intention of persuading his manager that he was wrong if he thought he had resigned.  The fact that the complainant took no action when the company was opening again after the holidays on Monday, August 12th, leads me to conclude that he decided to leave.

In his evidence at the hearing, the complainant said that he started another job three weeks later on September 2nd 2024.  I note that he delayed submitting this complaint for two months after he claims he was dismissed, which leads me to the view that he was not entirely convinced himself that he was dismissed.

I note the argument put forward by Ms Tamuleviciene, that the complainant did not confirm his resignation in writing and that there is no written record that he resigned.  There is also no written record that he was dismissed and nothing occurred in the workplace in the lead up to his departure that causes me to infer that he was dismissed.

It is my view that the complainant was not dismissed from his employment with the respondent, but that, when he was finishing up for his holidays, he didn’t intend to return because he had an offer of a new job.  It is my view also, that he changed his mind about this at some point.  I am satisfied that, when he took no action to try to persuade his employer to allow him to withdraw his resignation, he did, in fact, resign.    

For the reasons I have set out above, I am satisfied that the complainant was not dismissed and I decide therefore, that his complaint under the Unfair Dismissals Act is not well founded.

Dismissal in doubt