Complainant

Respondent

Parties

Brian  Gillespie

Rite Precision Engineering Ltd

Representatives

Alastair Purdy Alastair Purdy & Co. Solicitors

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-00066322-001

26/09/2024

The complainant submits that he was dismissed unfairly.

The complainant commenced employment on 02/01/2007 and submits his employment terminated on 05/04/2024 and his gross was €1,053.

Preliminary Issue 1:

The complainant did not object to amendment of the respondent name to Rite Precision Engineering Ltd from Rite Engineering.

Preliminary Issue 2:

In response to the respondent’s submission that the complainant resigned his position, the complainant submitted that whatever he had sent through by way of text messages was sent as a result of a brain injury he sustained as he was involved in a serious road accident in May 2023 where he sustained multiple fractures, burns and a brain injury and he had returned to work in January 2024.  He submitted that in hindsight this was too early to return and he was unaware at the time of the brain injury and was worried he would lose his job.

The complainant returned to work 3 to 4 days per week and the respondent had given his machine at work to a new employee and the complainant had been asked to become the quality control officer owing to his years experience.  This role was to commence on 25/03/2024 but it did not happen.  On the evening of 04/04/2024 the complainant talked to the person Mr A and they would have known each other and the complainant told him that he would get on well with this guy if this guy was not an asshole.  Mr A then accused the complainant of threatening him and this sent the complainant into a rage.  The complainant text the respondent Mr Donnellan and said he wanted his old job back.  The complainant explained to the respondent that this rage was a symptom of his brain injury  The complainant submitted he has some temporal lobe damage and some memory problems that was identified after he left the respondent but had been present most likely from the accident.

The respondent messaged him with a calculation of his annual leave in 17/04/2024.

On 17/04/2024 the complainant replied that “It was a pleasure to work with all at Riteway. I returned too soon unfortunately. My head injury led to an irrational outburst. I had no intention of resigning ever . Thank you for all your help and wish all of Riteway the best future.”

The complainant’s evidence was that he had worked previously with the respondent and had a shoulder injury previously.  He was off work for 7 months after his accident in May 2023 and wanted to get back quickly and worked 2 or 3 days a week which was a difficulty.  He did not know about the brain injury at the time and he found he was irritable and would overreact and get angry.  The respondent offered him a quality role and Mr A was difficult to work with and he had not been nice.  One morning the complainant parked badly and did not leave Mr A much room and he was asked by Mr A if he was blind or stupid.  The complainant explained that another employee Mr B had parked in the complainant’s spot.  The complainant called Mr A terrible names and it was out of the complainant’s control because of the brain injury.  The complainant was supposed to start the role in March 2024 but nothing happened and on 4th April he asked about the role and felt threatened and was confused and upset and wanted his old role.  He had not been at a neurologist at that stage and was not in a good mental state.  When he had returned after the accident in January 2024 he had been told by Orthopedic that he was fit to return to work.  He was told by the respondent that his resignation was accepted and he told PJ that he did not resign.  He felt angry when they talked about shipping his tools and he told a customer that he had been sacked and he was never invited back to a meeting by the respondent.  Following the accident his fractures are fine and he can move better and he had hoped his head would recover but it was getting worse and he had an MRI which showed changes of the left temporal lobe.  He can still be reactionary but it is getting better.  He is doing physio and will soon be ready to seek alternative work following rehab.  He did not have any memory of that time of the accident

Under cross examination the complainant said he had a good working relationship with the respondent and was their first employee and was paid monies by them when he was out, they topped up social welfare and he was very grateful to the respondent.  He returned in January 2024 and received a fitness to return to work cert from orthopedics but there was no knowledge of the brain injury and his employer would not have been aware of it.  He said he has problems with his short term memory and there was no request by him for accommodations and that the respondent was very good.  He confirmed there were issues between himself and the employer before the accident and he had resigned previously and the respondent had phoned him to retract his resignation and he did.  The respondent said about a role in quality and he expected to start it in March 2024 and it was not known why he did not start it.  He said that he had sent many text messages that night but was not there mentally to know what he had done.  He confirmed that he returned to work after he resigned to get his tools and to show an employee how to finish the job on 05/04/2024.  He confirmed that he told the respondent that he respected them and thanked them as he was trying to get a reference and that he was always grateful to them and nobody spoke to him.  He did not look to retract a resignation as he did not believe he was resigning and he thought his job was at risk and reacted the way he did because of that.

The complainant confirmed that the respondent agreed to a phase return after his accident and was told the employee in quality was not up to scratch and never issued an official resignation letter and there was no face to face exit interview with the respondent. He confirmed that quality was not his role and that his return to work cert was signed by a doctor who had never met the complainant and he was never fit to return to work.  He said he had no memory of sending message and if he sent them they were sent when he ws extremely agitated and had no recollection.  He should not have been in the public and had no memory of collecting his tools and he had a left temporal lobe damage.  The respondent dumped him over tiny emotional outburst.  His response saying it was a pleasure working for therspondent was because he was grateful to them and he was incapable and was not physically fit and is now in rehab and could not at the time handle his affairs.  He was incapable of raising a grievance at the time.

He has not been able to pursue employment as he is in the brain injury rehab.  He has been deemed fit to return to work in the last month and is doing a computer course and had not been demed fit to return to work previously.

Preliminary Issue 1:

It was submitted that the correct name of the respondent was Precision Engineering Ltd and not Rite Engineering and a request for the change of the respondent’s name.

Preliminary Issue 2:

 It was submitted that the Complainant resigned and therefore he should bear the burden of proof in the matter. It was wholly denied that the Respondent dismissed the Complainant. The Respondent is an engineering company that started in 2006 and the Complainant started within a few months in the capacity of toolmaker. The Respondent has encountered several issues over the years with the Complainant who would sporadically turn up at workplace under the influence of alcohol and become abusive to staff and management. During these occasions, following which he was once taken home by one of the directors or would walk out of work, he would resign and subsequently retract his resignation. On each occasion, this retraction was accepted by the Respondent. On the 26/05/2023, the Respondent was informed that the Complainant had been in an accident. This resulted in him being hospitalised for a long period of time. As a gesture of good will, the Respondent continued to pay the Complainant his full wages until he became eligible for illness benefit. Further, the Respondent continued to “top up” the Complainant’s benefit to the sum of €400.00 pending his return to work. No time limit was placed on this offer and this arrangement continued until the Complainant’s return to work in January 2024.

The Complainant produced a ‘fit to return to work’ certificate from the hospital indicating that he was fit to return from 11/01/2024. No restrictions were placed on this certificate or indications of any concerns. As the Complainant had been on leave for some time, on his return it was decided by the Respondent that they would return the Complainant on a phased basis, initially on light duties. This was to allow him to build up his fitness levels. He was paid his full wage and was given the freedom to select his own hours. He would work between 22 and 34 hours per week from his return in January to his resignation in April 2024. At the time of the Complainant’s return to work, the Respondent had a new employee in a Quality role. It was stated to the Complainant that if that employee did not pass his probationary period in the that job, then it would be something that the Complainant could be considered for but this situation did not arise and the Quality employee is still within that role. There was therefore no “agreement” for him to take this role. Due to the phased return of the Complainant, he was on lighter duties for a period of time, however, as shown by the fact that there was no impact on his remuneration, the lighter duties were an interim arrangement and therefore again, it is incorrect for the Complainant to allege that “his machine” had been given to another employee. Following the Complainant’s return to the workplace, his previous behaviours would sometimes flare again and he would become abusive to staff and management.

On 03/04/2024, the Complainant issued a litany of abusive texts many of which were sent with disappearing messages engaged and phone calls to the Respondent’s staff including a director and the Production Manager. These messages included “I’ll call in around lunch to take my tools”…”If I don’t go now I’ll be begging for scraps”…”I’ll pick up my stuff up in the morning.  I won’t create a scene .  I’ll be in and out”. “I’ll call in around lunch time to take my tools…so I’m done.  This is the first time that i (sic) mean it….I’ll pick my stuff up in the morning” and ““I’m done ”I will go on disability I am done”.  “Thank you and Chris for all your help.  Take care”.   The respondent replied “I have spoken to PJ about you quitting as he is the one dealing with this.” 

The following day, the Complainant did not turn up for work. He sent several uncalled for messages and confirmed that he was resigning. He noted that “this is first time that I mean it” referring to the resignation. The Complainant attended the Respondent’s workplace the following day and collected his tools. He engaged in a disagreement with a staff member and proceeded to attend the management offices and accused them of avoiding him. He issued a series of expletives and left the building. The Respondent’s Production Manager subsequently engaged in a message trail with him where the complainant advised “I believed I was being set up for dismissal”   …Thank you and deepest apologies”.  Mr Norman replied “from me personally I’m sorry this happened as I’ve always liked you and the respect you have shown me has always been spot on” to which the complainant responded “I know. And thank you.  Nothing but respect for all of you in Riteway…especially for all the help.  Sorry that my head is not fully recovered yet.  All the best”.

On the 17/04/2024  the Respondent’s accountant sent a message to the Complainant informing him of his entitlements due to the end of his employment. It is noteworthy that the Respondent had given time for the Complainant to consider his actions, however, had received no further contact after his tools were collected to this point. The Complainant responded to this message on the same date and indicated no issue with the Respondent or its actions. While the Complainant did, some one month after resigning, seek to change his mind, this was not agreed to by the Respondent who had at that time moved on and reverted to the Complainant setting this out.

It was denied that a constructive dismissal arose.  The Respondent did not dismiss the Complainant and the complainant does not satisfy the The Contract Test and the Respondent always intended to be bound to the terms of the contract of employment. The Respondent had been encountering several issues with the Complainant, from being intoxicated in work to being abusive, verbally and via messages or phone calls, to other member of staff, in multiple occasions. At no time, did the Respondent dismiss the Complainant nor hold any grudges against him. In every single occasion, the Complainant would resign and then retract same. Each time, the Complainant would apologize to the Directors and the Respondent would accept the retracted resignation. The complainant does not satisfy the reasonableness test and cannot demonstrated the employer’s conduct was so unreasonable as to make the continuation of employment intolerable.

It is the Respondents position that they acted reasonably and fairly at all times towards the Complainant which is also seen following the Complainant’s hospitalisation following his accident. The Respondent does not have a sick pay policy. Notwithstanding same, as a gesture of goodwill, the Respondent thought it would have been beneficial, given the situation, for the Complainant to receive a full wage until he qualified for the illness benefit. Further, the Respondent also offered to top up his social welfare payment to €400 per week until he was fully recovered. Contrary to what is alleged the Respondent went above and beyond its obligations to the Complainant. The complainant failed to provide the respondent with any opportunity to respond to any concerns he may have had and it cannot be determined to be a constructive dismissal.  The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

It is the Respondent’s position that in advance of the Complainant leaving he failed to notify the Respondent of any concerns he may have had in relation to his employment, nor did he utilise internal procedures to resolve any grievance he may have had.  Accordingly, the Complainant falls short of the bar necessary to ground a complaint of Constructive Dismissal under the Unfair Dismissal Act.

It was further submitted that it is an obligation of any Complainant, making a claim under this Act, to show efforts made to mitigate their loss by seeking new employment. The Complainant had not done so and note that his complaint form refers to the fact that no such alternate employment has been sought.

Case law cited included: An Employer v A Worker ED02/57 McCormack v Dunnes Stores, UD 1421/2008, McCormack v Dunnes Stores, UD 1421/2008, Berber v Dunnes Stores [2009] ELR 61

Evidnce of PJ Norman was that he was production management and did not know the complainant had a brain injury.  He had been made aware from others that there were altercations with the complainant but did not know personally of these.  On 04/04/2024 he opened the door and the complainant said that Mr Norman didn’t have the balls to see him and “fuck you”  and there was no contact from the complainant after that and there were no attempts made by the complainant to retract his resignation.  Mr Norman said he had worked with the complainant for 10 years and saw no change in his behaviour before and after the accident.

Under cross examination the complainant said he wanted to thank Mr Norman and that what occurred was out of his control and that he would love to be still working with the respondent and that he was sorry that they were here.

The Evidence of Mr Donnellan was that he was director of the respondent since the start and had worked with the complainant previously.  Normally when there were issues they would be talked through and that he was very fond of the complainant  and that he would always air any grievances and deal with things informally.  The complainant had previously resigned and then he would retract it the next day.  The company did not have a sick pay scheme but paid the complainant after the accident and there had been a good bit of contact while he was out during the accident and the complainant had talked about the muscle wastage that had occurred and that the complainant said he needed to get back.  He did not consider a referral to OH as there was a fitness to return to work cert.  He did not notice a difference in bheavour before the accident and after.  The complainant demonstrated behaviours of resigning on occasion before the accident.  The offer of a quality role was conditional on the other employee not working out.  He received a text message at midnight from the complainant and the complainant repeatedly phoned Mr Donnellan.  The next day Mr Donnellan contacted Mr Norman and other employees who advised they also got these abusive texts  When the complainant collected his tools the complainant said “fuck ye”  when he was leaving and never sought to retract his resignation.  The complainant had mentioned lapses of memory and the complainant was never dismissed but had resigned.  Resignations from the complainant mostly happened at night and he did not contact the complainant after his last resignation as he did not think it was appropriate.

Under cross examination the complainant said to Mr Donnellan that he wanted to thank him for the employment and wished Mr Donnellan all the best. 

Preliminary Issue 1:

The respondent requested that the respondent’s name be amended to Rite Precision Engineering Ltd from Rite Engineering and taking note that there was no objection from the complainant and that parties were not prejudiced by same I consent to the amendment of the name.

Preliminary Issue 2

The respondent submits that the complainant resigned his position and therefore, there was no dismissal and no unfair dismissal.  The complainant submits that he may have resigned but had a brain injury and was not in a position to make such a decision and had no recollection of events.

I note that the complainant is not submitting that he was discriminated against on the grounds of any disability and that his claim is he did not resign his position and had no recollection of events.  It was also submitted that the complainant is not working and has only recently become fit to return to work.

Under Section 1 of the Unfair Dismissal Act constructive dismissal is defined as:

“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 the 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”.

Section 6(1) of the Act sets out

“Subject to the provisions of this section, 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.”

Dismissal was in dispute and it is for the complainant to establish that a dismissal occurred.  If that is established, it is then for the respondent to demonstrate that in the circumstances of this case there were substantial grounds justifying dismissal.

It was not in dispute that the complainant had resigned on previous occasions prior to his accident of May 2023 and that the respondent had taken him back to work.  It was also not in dispute that the complainant had been in a serious accident in May 2023 and that the respondent had accommodated him with payment outside the respondent’s normal sick pay scheme and that there appeared to have been a reasonably good relationship between the parties.  Indeed what struck me during the hearing was that when given an opportunity to cross examine the respondent’s witnesses, the complainant used the opportunity to thank both Mr Norman and Mr Donnellan and wished them well and put no other questions to them.  It was also notable that Mr Donnellan and Mr Norman wished the complainant well and gave evidence of a good relationship with him for the most part.  That aside the complainant did send what was described as abusive text messages to employees including to Mr Donnellan and Mr Norman late at night and these random messages told the respondent “I’ll call in around lunch time to take my tools…so I’m done.  This is the first time that i (sic) mean it….I’ll pick my stuff up in the morning” and ““I’m done”,  “Thank you and Chris for all your help. Take care”.  The respondent advised “Hi Brian I have spoken to PJ about you quitting …and he will get back to you with the next steps”.

The complainant received communication on 17/04/2024 on behalf of the respondent “Following your resignation I have calculated holidays for you…” and the complainant responded

“it was a pleasure to work with all at Riteway.  I returned too soon unfortunately. My head injury led to an irrational outburst.  I had no intention of resigning ever.  Thank you for all your help and wish all at Riteway the best future”.

In Millett -v- Shinkwin DEE2004ELR319 the Labour Court set out the “general rule” as follows

“A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation. Where adequate notice is given, the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract”

The EAT found in Martin v Yeoman Aggregates Ltd [1983] IRLR 48-

“It is a matter of plain common sense, vital to industrial relations, that either an employer or an employee, should be given an opportunity of recanting from words spoken in the heat of the moment. It could not be accepted, as argued by the appellant, that once clear and unambiguous words are used the contract irreversibly comes to an end so that second thoughts make no difference”.

The complainant’s direct evidence was contradictory at times as he seemed to suggest that he never told the respondent that he resigned but also that he could not take responsibility for the text messages where he did resign, as he was not in his right mind.  I also note that even if this was the case and that he became aware of this, he never sought to engage with the respondent to explain this either through his grievance procedure and/or with medical supported documentation, as a reasonable employee might have done.  I further note that there had been previous resignations by the complainant which the complainant himself acknowledged “I mean it this time” and was confirmed in evidence by all witnesses. 

The complainant advised that he was leaving on 03/04/2024 and a further act that suggested his wish to pursue his resignation was that he collected his tools.  While he advised a customer he had been fired there was no further engagement by him by way of attempts to withdraw what he clearly knew was his resignation until 17/04/2024.  Following the respondent’s message he advised that it was never his intention to resign but  I find that the complainant did nothing to engage with the respondent if he had changed his mind or if had acted in haste with the resignation text messages and his physical action of collecting his tools. The complainant had previously resigned and previously retracted resignations and would have known it was possible to engage with the respondent regarding such resignations but did not significantly  engage. 

I find in all the circumstances that it was reasonable of the respondent to assume that the complainant had resigned his position and I find that complainant was not unfairly dismissed and I find his complaint unfounded in all the circumstances.

I find that in all the circumstances that there was no unfair dismissal, and I dismiss the complaint.

Unfair dismissal, resignation,