Complainant

Respondent

Parties

Glen  Moran

Fostervale Ltd Tank and Drain

Representatives

Robert Donnelly B.L. instructed by Padraig J Hyland & Co

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-00063761-001

28/05/2024

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

CA-00063761-002

28/05/2024

The fact of dismissal was disputed. 

The respondent submitted the complainant had left his employment voluntarily.

The complainant gave his evidence on affirmation.

On May 20th he  was called into the office by a Director of the company and the Head of HR was also present, and it was put to him at the opening of the meeting, that they believed that he was ‘leaving’ the company and that he ‘would like to resign’.

He made it clear that this was not true.   He said that he had givenno suchindication, nor had he any intentionofresigningbecause helovedhisjob.

The conversation then took an abrupt change around and they both said, ‘look we are being forced to make a number of changes due to salary costs, and we have been forced to let you go and with immediate effect.’

The complainant was shocked and surprised as he had worked for the respondent for over six years through rough times, such as when the company went through the ‘SCARP’ recovery system and as there was now a new investor on board he was looking forward to the future.

Ther complainant had gained qualifications in recent years and for a growing company to eliminate their Health and Safety Manager with over fifteen years drainage experience was unacceptable.

He had had an exemplary record with Tank and Drain and no disciplinary blemishes. He had progressed through thecompanyfrombeingaDrainage EngineertoaTeamLeadertomanagingIrishWaterContracts. HethenprogressedtoHealthandSafetyofficerandfinally toHealthandSafetyManager.

It was this progression and his experience that has led to his attractive package, and he was due a further pay increase.  His dismissal was one of four involving senior managers that were let go abruptly in the same week. The attitude from the MD to his termination was ‘that’s what we have the WRC for’. 

There was no notice period or payment of notice, and he was not offered the option of statutory redundancy.

There was no warning, no fair procedures for dismissal, no witness to meetings, no appeal process.

The process that they have undertaken was to call in a senior staff member for a ten minute talk to be told ‘we have to let you and others go because we need to reduce wage bill’.

The complainant’s argument fell on deaf ears, and the decision was made in hisopinionafewweeksearlier,buttheyneededtoactwhentheydid.

The complainant also relied on his email of May 25th to the respondent in which he confirmed his view that the termination of employment was ‘not by mutual consent at all’ and that the respondent had stated that the decision was ‘purely based on salary’ as they had both stated to him.

He said in that email that he should have been offered a redundancy package.

The respondent MD, Gavan Doyle gave evidence on affirmation and described an incident which took place on the Friday, May 17th before the events which led to the complainant’s termination (the following Monday, 20th ).

He referred to an alleged altercation with the Operations Director on the 17th following which the complainant had said he ‘was done’ and walked out (although Mr. Doyle had not witnessed this incident).

The witness said that he could not recall exactly what was said at the meeting on May 20th at which the complainant’s employment was terminated.

In cross examination it was put to him that the complainant had presented for work on May 20th, thereby undermining the suggestion that he had resigned the previous Friday.

The respondent’s case is based on its view that, whatever happened between the complainant and the Operations Manager on May 17th constituted a resignation by the complainant.

Leaving aside for now whether such a ‘heat of the moment’ action could actually ground a case of voluntary resignation; it is utterly lacking in credibility for other persuasive, and decisive reasons.

Not only did the complainant present for work on May 20th, (the next working day) but, when he met the respondent later that day, he resolutely contradicted the suggestion that he had resigned, or that he had any intention of doing so.

There is his further uncontested evidence on affirmation that a discussion took place at the meeting in relation to salary costs, and that the company needed to reduce the wage bill.

The respondent witness unconvincingly submitted that he cannot remember what was said at that meeting. However, he did not contradict the complainant’s evidence which I accept as a credible account of what actually transpired.

Add to this the fact that, according to the complainant, four other senior managers (including the HR Manager who attended the May 20th meeting) left the company shortly afterwards, the respondent’s case, which is disingenuous at its very best, falls apart.

I find that the respondent has sought to hang the complainant’s dismissal on the flimsiest of threads; the alleged incident on May 17th, which, as I have noted could not be regarded as a resignation on these facts.

However, if there had been any doubt in its mind the respondent team which met the complainant on May 20th removed that doubt, so that it could not even rely on that flimsy thread.

That did not prevent it writing to the complainant on May 20th asserting that the termination had taken place ‘on mutual consent’; which on the basis of the complainant’s undisputed evidence, and the general circumstances of the meeting and its aftermath, is a transparent untruth.

The termination of employment was peremptory and unfair at a level of gravity which is relatively rarely seen these days.

Most employers understand and respect the not very onerous responsibilities falling on them to conduct a fair process when terminating employment.  While they may occasionally breach them in respect of technical or other requirements, the flagrant indifference of the respondent in this case to the requirements of fair procedure is at a different and more serious level.

I conclude without hesitation that the complainant has been unfairly dismissed.

The complainant gave evidence of his attempts to mitigate his losses. He was without work for some ten months and applied for over one hundred and twenty positions for which evidence was submitted. He outlined the impact of the loss of his job on his personal life; having to sell his car and to seek alternative accommodation.

My award is below.

Regarding the complaint under the Minimum Notice and Terms of Employment Act it was not disputed that was not paid a notice payment as required by the Act and he is entitled to four weeks’ notice in the amount of €5360.00.

I uphold CA-00067361-001 under the Unfair Dismissals Act and award the complainant €32,160.

Complaint CA-00067361-002 under the Minimum Notice and Terms of Employment Act is well founded and I award the complainant €5360.00.