Complainant

Respondent

Parties

Alan  Tobin

D & K Home Renovations Ltd Stoves 4U

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

Bernadette Cronin Foley & Associates

John Cashell Cashell 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-00062817-001

15/04/2024

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

CA-00062817-002

15/04/2024

The complainant, Mr Alan Tobin was employed by the respondent company, D & K Home Renovations Ltd Stoves 4U.  Mr Tobin alleges that he was summarily dismissed following an issue regarding purportedly discussing one of the Directors of the company, Ms Kate Brislane, with an external contractor.  The respondent states that the complainant resigned and acknowledges that he did not misbehave in any way and that his job remained open for him.

Evidence was given under oath/affirmation by the complainant Mr Tobin, by Ms Caroline Morrissey the external contractor, by Mr Darren Horan, Director of the respondent company and Ms Kate Brislane, Director of the respondent company.  All evidence was subject to cross examination.  All submissions received were considered by me in arriving at my decision.

The Complainant commenced employment with the Respondent on the 1st March 2022 at their premises in Tralee.  This was a permanent, full-time position of 40 hours per week/8 hours per day. The Complainant was contracted at a base rate of €39,260 pa.  His normal working hours were 8.30am to 5.30pm.

The Complainant would primarily report to Mr Darren Horan, one of the Directors of D & K Home Renovations Ltd.  He would often also report to Ms Kate Brislane, the other Director of D & K Home Renovations Ltd.

The Complainant states that on the morning of the 6th December 2023 he arrived for work at 8am to get the shop ready for opening to the public at 9.00am. Mr Darren Horan was already at the store when he arrived.  The Complainant says he was informed by Mr Horan that “We need to have a little chat”.

 The Complainant opened the door and turned off the alarm and went to head to his desk. He was advised by Mr Horan to “Don’t go any further, you may be going back out the door”.  Mr Horan informed the Complainant that he had been on to HR and had every right to fire the Complainant on the spot.  The Complainant was shocked and asked him what was going on.  

 Mr Horan claimed to have proof on his phone and CCTV that the Complainant “cut the back off Kate”.  This is believed to be a reference to Kate Brislane, the other Director of D & K Home Renovations Ltd.  The Complainant adamantly denied any such allegation and was accused of lying by Mr Horan.  When the Claimant persisted to say that he did not say anything about Kate or anyone in the manner being implied by Mr Horan, Mr Horan indicated that Ms Brislane had been sent messages in which it was alleged that staff had called her names and talked badly about her.  Mr Horan said that they also viewed the CCTV cameras, both in Tralee and Abbeyfeale. Mr Horan made no effort to show the CCTV or the messages to Mr Tobin and did not indicate what exactly was alleged to have been said.   Mr Horan, then said that he was going away for a few hours and would be back later.  Following this, Mr Tobin attempted to ring Mr Horan at 11.20am approx. but he got no answer.  The Complainant left a voice mail.

Later that day at 2.15pm, the Complainant noticed that water was coming in the window and he again tried to contact Mr Horan and got no answer.  He also sent him a Whatsapp message which was read but no response was received. The Complainant proceeded with his work that day and closed the shop and set the alarm and went home at the usual time. No further contact was received that day from either of the Directors of the Respondent Company in this matter.

The Complainant states he arrived for work again at 8.00am the following morning, Thursday 7th December 2023 to set up the shop as usual.  Soon after 9.00am, Mr Horan came in holding a mobile phone in his hand.  He told the Complainant that he could look at the messages that were sent to Kate and that Kate wants him “gone today”.  When the Complainant enquired as to why, he was told it was because of what he was saying to a third party by the name of  “Caroline”. Mr Horan further stated “we have proof”.   Mr Horan then informed the Complainant that he had two options as follows: “ hand in your notice or be fired”. The Complainant responded  “I have spoken to Citizens Information about this”.  Mr Horan replied “Now you are fired”.  When the Complainant asked that they bring matters back and have a discussion about the issue, and pleaded with Mr Horan that this was unfair and that he had done nothing wrong, he was informed that as Ms Brislane was a 40% shareholder and “she wants you gone” there was nothing he (Mr Horan) could do.  Mr Horan admitted that he did not ring HR and that it was Ms Brislane who rang HR about the matter.  According to Mr Horan,  Ms Brislane was stating that a third party, who apparently had claimed to have sent the messages to Kate, had “told her everything”.

Mr Horan requested that the Complainant give his answer by the end of the day, i.e. serve his notice or be fired. The Complainant asked to speak to Ms Brislane about the matter to sort it out, to which Mr Horan replied “Good Luck with that”, and left the shop. The Complainant rang Ms Brislane at 10.28am and got no answer.  He left a voice mail and sent a Whatsapp at 10.31am which was read but no response was received.

The Complainant contacted the third party referenced by Mr Horan, Ms Caroline Morrissey, to query how this had all come about as he was completely in the dark as to what the allegations were and he relayed the contents of the interactions with Mr Horan to Ms Morrissey.  She was shocked and apologised for the clear misunderstanding. She further confirmed that the Complainant’s name was never mentioned to Ms Brislane and offered to send him copies of all communication between herself and Ms Brislane in relation to the matter. 

 At 10.44am, the Complainant rang Mr Horan again and informed him that he had now spoken with Ms Morrissey.  Mr Horan laughed and referred to Ms Morrissey as “mad” and said that he would call in later to the shop. The Complainant sent a further message to Mr Horan in which he said he did not do anything wrong and did not deserve this and that Ms Morrissey’s remarks were off the cuff and that nothing was said by the Complainant about Ms Brislane.  This message was received by Mr Horan but no reply was received in return. The Complainant continued on with his work day and shut up shop as per usual.

On Friday morning the 8th December 2023 at 8.14am, the Complainant arrived at the shop to open up for the day.  Just before 8.45am, Mr Horan came in to the shop and pulled down the Opening Hours which had been placed on the front door by the Complainant.  Mr Horan informed the Complainant, “I told you yesterday that you were fired, Kate is on the way and she will get the Guards to remove you.”.  When the Complainant questioned “Why?” he was told “Go, Kate is coming in”.   The Complainant again asked “What have I done” and Mr Horan responded “HR have told me that you can be fired for gross misconduct”.  He was again told that he had the option to leave or be fired.  The Complainant requested this in writing and was told “No”.

The Complainant started packing his personal belongings under the threat of the Guards being called.  Ms Brislane entered the shop and the Complainant requested that she would talk to him and that he wanted to clear his name.  He stated to her “I did not speak about you ever in a bad way”.  Mr Brislane then informed him that  “Caroline” (Ms Morrissey) was saying different and that Caroline would go to Court and back that story.                At that point the Complainant felt that he was not going to be given a fair hearing and, as requested, he handed back his keys, thanked Ms Brislane and Mr Horan and left.  

This is a complaint brought in circumstances where the Respondent denies that the Complainant Employee was dismissed.

On the 5 December 2023, certain social media messages posted using the Employer's phone and WhatsApp application, came to the attention of one of the Company Directors, Kate Brislane. The message exchanges were between the Complainant and Caroline Morrisey, who had been commissioned to paint Christmas windows in both retail shops operated by the Respondent. Ms Brislane took offence that both the Complainant and Ms Morrissey would talk behind her back, as appeared to her to be the case from the messages in question. She reported the matter to another Director, Darren Horan. Mr Horan, who had a closer working relationship with the Complainant over the years (and whom he has known for most of his life) agreed to speak to the Complainant about the messages.

On 6 December 2023, Mr Horan was not available to visit the retail shop where the Complainant was working and did not have the opportunity to discuss the matter with him. On 7 December 2023, Mr Horan arrived at the shop to talk through some regular work matters with the Complainant, such as customer orders or issues arising. Mr Horan then raised the subject of the social media messages which had been discovered by Ms Brislane on the work mobile phone. Mr Horan made it clear that Ms Brislane was annoyed by the content and warned the Complainant about Ms Morrissey: to the effect that Ms Morrisey could not be trusted and that she would use social media to her advantage without any consideration for the Complainant.

The Complainant immediately denied any adverse comments but Mr Horan explained that Mr Brislane was of the opinion that this was evident from the messages found on the work phone. The Complainant then became very angry and asked Mr Horan, 'are you calling me a liar?'. The Complainant then took his keys and stormed out of the shop at approximately 9.00am. He did not return to work that day. Mr Horan contacted Ms Brislane after the Complainant left, and Ms Brislane came to the shop to work for the day in the Complainant's absence.

On 8 December 2023, Mr Horan went to the shop at approximately 8.am to pick up paperwork required for his day's work on the road. The Complainant was already at the shop and Mr Horan found him packing up his belongings such as clothing and his coffee cup. Mr Horan was concerned for the Complainant whom he has known for a very long period of time and with whom he has a number of connections. Mr Horan asked the Complainant, 'what's going on? Are you back?'. The Complainant replied, 'no, I'm done: you called me a liar'. Mr Tobin tried to explain that he didn't call him a liar but was just trying to tell the Complainant to be careful of Ms Morrissey. Ms Brislane then arrived at the shop. The Complainant separated the shop keys from his keyring, handed them back, and walked out of the shop without any further communisation. The Complainant then sat in his car outside the shop for a lengthy period of time. Mr Horan hoped that the Complainant would cool down and come back in, but he did not do so.

The complainant resigned without notice on 8 December 2023 using the words 'I'm done, you called me a liar', and by handing back his keys to the employment premises to one of the Directors in the presence of another Director. For clarity, the Employee's version of events in this complaint is entirely refuted: he was not summarily dismissed. The Employee requested a statement from his Employer on the same date to reflect the termination of the employment which was duly given to him. All communications post resignation appear to be on friendly terms.

It was made clear through the Employer's correspondence via its solicitors to the Complainant via his solicitors that the Complainant was not being accused of any wrongdoing and that he was welcome to return to his employment with the Respondent.

In Redmond on Dismissal it is stated;

Where unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, generally it is safe to conclude the employee has resigned. The contract is terminated in accordance with its terms and as there is no repudiation, acceptance is not required by the employer. However, context is everything. A resignation should not be taken at face value where in the circumstances there were heated exchanges or where the employee was unwell at the time. The intellectual make-up of the employee may also be relevant.

It is submitted that the Complainant's conduct, by leaving work on 7 December 2023 and not returning, was considered by the Respondent as heated and was not taken to be a resignation. However, his conduct on the next morning, by taking his belongings and handing back keys to the Respondent's property was closer to being interpreted as a resignation. His request later that day for both a statement of cessation of employment and for payment of all monies up to date were a clear indication that the Complainant did not intend to return to work and had effectively resigned.

In the circumstances, it is submitted that the Complainant was not dismissed and therefore, on the basis that he resigned voluntarily, he is not entitled to compensation for unfair dismissal.

CA-00062817-001  Unfair Dismissal claim

The issue at the centre of this complaint is whether or not the complainant was dismissed.  In his evidence, the complainant stated that it was made clear to him that he was being dismissed.  In his evidence Mr Horan, a Director of the respondent company, denied making any such statements and that, in fact, the complainant left angrily and resigned.  He thought the complainant would return when he had cooled off. Mr Horan also stated that he did not know that the complainant thought he had been dismissed until he received the solicitor’s letter some time later. It is for me to determine, on the balance of probabilities, which version of the evidence is more persuasive.

Part of the evidence given on behalf of the complainant related to WhatsApp messages which he alleges support his version of events that he was in fact summarily dismissed.

In the WhatsApp message of 7 December 2023 from the complainant to Mr Horan the complainant stated;

I said nothing, not a word about Kate in any bad way.  Please (I) don’t deserve this….I (know) I did not do anything to deserve this.

It is clear from this message that the complainant believed himself to have been punished for the alleged transgression.  If this interpretation was factually incorrect Mr Horan should have advised him of the actual situation.  He did not do so.

On another message on 7 December to Ms Brislane the complainant stated;

Hi Kate, could I please speak to you anytime today please.  Just one chance to hear me out.  I would be so grateful

A reasonable interpretation of this message is that the complainant was very concerned and believed he was being punished and wanted to clarify his position.  He received no reply from Ms Brislane to this.  She read the message and must have been aware of his concern.  In her evidence Ms Brislane stated that she asked Mr Horan to have a word with the complainant about the messages with the external contractor, Ms Morrissey, and to advise him to be careful.  Furthermore, in evidence, Ms Brislane said that she never asked Mr Horan to fire the complainant but ‘just to advise him if he did say anything it didn’t matter’.  Mr Horan, in his evidence, made no mention of the latter part of Ms Brislane’s advice to him.  Clearly, had any such reassurance been given to the complainant he would not have been as stressed as evidenced in the various WhatsApp messages. Ms Brislane must have known from the above message sent to her by the complainant, that her intended message had been wrongly communicated and needed to be clarified immediately.  This did not happen.

On 8th December the complainant messaged Mr Ryan, the Office Manager, and stated to him in the context of looking for a letter confirming that he was no longer working for the company that;

As of this morning I am no longer an employee of stoves 4U as I have been fired.

The requested note was signed by Ms Brislane and I cannot accept that she would have signed the note without being made aware by Mr Ryan that the complainant believed he had been fired.

No attempt was made by the respondent to approach the complainant to return until after the solicitor’s letter of 21st December 2023 was received when Mr Horan claims was the first time he became aware that the complainant believed he was dismissed.  Even then, the respondent’s position that the complainant had not been dismissed and was welcome to return was only communicated on 19th January 2024.

It is accepted by the respondent that in relation to the messages giving rise to this issue that the complainant did nothing wrong.

Based on the evidence presented at the hearing I am satisfied that on the balance of probabilities the complainant was summarily dismissed without any investigation and without due process and therefore unfairly. I accept the evidence of the complainant in relation to his efforts to mitigate his losses which I find to be €33,481.

CA-00062817-002  Minimum Notice

The complainant was dismissed without notice.  The dismissal was unfair.   He is therefore entitled to be paid notice, in accordance with the Minimum Notice & Terms of Employment Act, 1973, should have been one week’s pay.

CA-00062817-001  The complainant was unfairly dismissed and I order the respondent to pay him €33,481 in compensation.

CA-00062817-002  The Act was contravened and I order the respondent to pay the complainant €755.

Summary dismissal without notice