Complainant

Respondent

Parties

Thomasina Egan

Redzinc Services Limited

Complainant

Respondent

Representatives

Ms A Kelly BL instructed by Gerald Kean of Kean’s Solicitors

David O'Riordan of Sherwin O'Riordan Solicitors LLP

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-00063740-001

27/05/2024

The Complainant was employed as a Finance Manager from the 1st October 2021 to the 4th December 2023 when she alleged that she had been dismissed. The monthly rate of pay was stated by the Complainant to have been € 3,923 for a 55-hour weekly commitment

The Complainant was represented by Kean and Company, Solicitors and in the second hearing by Ms Kelly BL. She gave an extensive Oral Testimony with supporting remote witness evidence from her sister, based in the United States. Detailed written submissions were also submitted.

 In essence, her case was that she had been on vacation/working remotely in the United States for the latter half of November 2023. (Her normal work pattern In Ireland was one of remote /from Home working). On the 29th November 2023 the Complainant alleged that she had received a communication (by e mail and/or What’s Ap voice call) that she had been terminated from her Employment. To E mail letters of the 21st and the 29th November from the Respondent, especially the letter of the 29th referring to “warnings” were cited in evidence.

Specifically, the letter of the 29th was deemed to have been a Dismissal letter. It referred to “Second warning letter” following up from the letter of the 21st  which was described as a “Warning letter”. It contained a notice of withdrawal of electronic facilities from the Respondent IT Systems. Without such access the Complainant had effectively no possibility of work. 

The Complainant returned to Ireland from the USA on the 2nd December 2023. She did not resume work as she believed that she had been dismissed. In the absence of any communication from the Respondent, the Complainant telephoned the Respondent Principal, Mr X, on the 7th December 2023. This call further confirmed in the Complainants’ mind, that she had been dismissed.

In remote witness evidence, the Complainant’s sister, Ms A, gave evidence of being physically near the Complainant and witnessing her distress following the alleged Phone call from the Respondent Principal, Mr X, on the 29th November 2023.

She cross examined the Respondent regarding the alleged Respondent denial of any phone call on the 29th November 2023 and the outcome of the 7th December 2023 call.

The Complainant in her written complaint form and later submission outlined serious allegations regarding the propriety of the Respondent Principal’s views and instructions regarding how she was to carry out her duties. The Auditor’s reservations and negative communications from the Bank and the Revenue were outlined. The recoding of Credit Card transactions was highlighted as were issues involving delayed payroll payments to other staff.

Extensive electronic records were submitted to sustain the view that a phone call via What’s Ap or other messaging service had taken place.

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The Respondent was represented by Mr O’Riordan and gave an Oral testimony. Extensive written submissions were submitted.

Almost all of the Complainant evidence was subject to close cross examination from the Respondent, and an alternative interpretation was offered.

In essence, the Respondent stated that while two letters/ email had issued (21st and 29th November 2023) they could not be construed, in any way as Dismissal from Employment letters. The issue of a “Phone” call on the 29th of November was vigorously contested. Electronic records were presented to demonstrate that no such call had taken place. On the 7th December the Complainant stated that she did not wish to have any further communications with the Respondent. The Principal, Mr X , not unreasonably, took this to be a Resignation. Following this date no further communications took place between the Parties.

Extensive electronic records were submitted to support the contention that no phone call as described/alleged by the Complainant took place on the 29th November 2023.

Of further concern there appeared to be conflicting versions of the e mail/letters of the 21st and 29th November, in existence. The opening and crucial paragraph of the letter/e mail of the 29th had two versions in evidence. This was never fully explained.

In cross examination of the Complainant’s sister, from Mr O’Riordan, for the Respondent, the Respondent sought to establish the physical proximity of the sister, Ms A, to the Phone Call. In reply it appeared that she was in an adjoining room and not party to the actual verbal exchanges in the call. However, she insisted, although somewhat unclear, that a call had taken place.

The written submission detailed performance shortcomings in the Accountancy duties of the Complainant. Significant shortfall over HSE payments/invoices and mis allocated monies were identified.

In summary the Respondent via Mr O’Riordan maintained that no Employer initiated Dismissal had taken place. The letters of the 21st and the 29th November were perfectly legitimate Employer concerns regarding the Complainant’s professional performance.

Instead of seeking to address these issues, the Complainant had, for whatever reasons, resigned voluntarily in the phone call of the 7th December 2023. Her closing injunction to Mr X to “never contact her again” was as clear cut a resignation as was possible.

3:1      The Legal position / Unfair Dismissals Act,1977

The key issue which was central to this case was essentially in Section1: Definitions.

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

The only resolution of this dichotomy has to be in an examination of the evidence presented both verbally and in writing. Both Parties were under sworn Oath but nonetheless appeared to differ markedly in their interpretations and or recollections.

3:2        Considerations of evidence presented.

Sworn Evidence:

Both sides a gave radically different evidence under Sworn Oath. The Adjudicator had to rely on precedent / experience and the balance of probabilities to consider his finding.

Both sides submitted electronic traffic records that appeared to sustain their views regarding whether or not a voice call (in whatever electronic format / What’s Ap, Zoom or other E mail formats etc) took place on the 29th November. The Complainant made significant reliance on the recollections of her sister from the USA. In addition, the question arises, if a call took place, what was the content and direct relevance of such a call particularly as regards employment status.

The letters of the 21st and the 29th detailed major alleged financial difficulties which if an electronic call, by whatever vehicle, had taken place, would have been top of the agenda between the Parties. It was clear from all the evidence presented that the relationship between the Parties had become increasingly strained in the previous year with issues involving  basic accounting skills / performance, the Banks ( loan issues),the Auditors ( paper trials, proper booking of Credit Card payments etc) and late payments of salaries to staff, being quite contentious.

It was unclear whether or not these issues had reached “Dismissal” levels in the mind of the Principal, Mr X, although the withdrawal of all electronic access to the IT Systems was tantamount to removing from the Complainant her ability to do daily work.

The Oral testimony from the Complainant’s Sister, Ms A, was not particularly illuminating. Her recollections were somewhat clouded although she did recall the Complainant getting quite upset after a “communication” from Ireland.

The electronic records were ambiguous and did not, in the mind of the Adjudicator, clearly, beyond all reasonable doubt, favour one version or the other. Detailed expert evidence from an electronic specialist would have been helpful but was not available.

The production of varying copies of the emails with different texts was also a worry.

Suffice to say that the night of the 29th of November was clouded in ambiguity and not helped by differing version/recollections under Oath from both sides. It falls to the adjudicator to come forward with a considered balance of probabilities view.

3:3        Key Questions

Two questions are relevant?

3:3:1     Was the Complainant dismissed by an electronic communication and or conversation on   the night of the 29th November 2023

The e mails/letters of the 21st and the 29th, especially in the 29th refer to “warnings” but the body text is more about financial and accounting difficulties. The removal of access to the IT systems in the 29th letter was certainly an unfriendly employer action. If there was an electronic communication, it was going to be quite fraught. It is reasonable, on the pure balance of probabilities (and the sister’s somewhat confused evidence) that a communication took place. However, it was not possible to clearly establish that a Dismissal from Employment took place. A Dismissal is a very seriously step and cannot be construed from one Party’s recollections especially when the Respondent vehemently denied it ever happened.

On overall review, the Adjudication view has to be that a communication in some format/electronic vehicle took place on the 29th but there simply is no concrete evidence that a Dismissal took place.

3:3:2       Was there a Constructive Dismissal in or about the 7th December 2023?

Again, vastly differing recollections between the Parties took place here. The initial purpose was the return of payroll records which became quite acrimonious. The Respondent stated that he was told “never to contact” the Complainant again. He took this to be a Resignation.

Constructive Dismissal rests on three grounds, Breach of Contact, Unreasonable Behaviours by both or either side and Use of Company procedures.

3:3:2:1 Breach of Employment contract.

On a technical basis there was no evident breach of the employment contract. It certainly became ambiguous as regards duties but from a pure Constructive Dismissal basis there was not sufficient evidence to support a Constructive Dismissal case.

3:3:2:2      Unreasonable Behaviours

There was extensive evidence given regarding alleged accountancy issues between the Parties. The Revenue, the Banks and the Auditors were all referred to in the Complainant’s evidence. It was not really pursued in Cross Examination but on the Balance of Probabilities the Adjudicator view was that a lot of unusual pressures were put on the Complainant reading some fairly fundamental Accounts issues especially the booking of Credit Cards charges. The Complainant hearsay evidence was that the Auditor had given clear instructions as to how these charges were to be booked despite the contrary requests of the Respondent Principal. This led to inevitable personal tensions between the Parties.

Allegations of difficulties regarding large HSE invoices/payments and a large financial amount (Circa €40K) unaccounted for in the Accountancy records did not help. A high degree of frustration was evident on the Respondent Principal’s part. The emails/communications of the 21st and the 29th of November were very tough and upsetting to the Complainant, but the question as to whether or not did they merited a Constructive resignation needed a careful Adjudication consideration.

On sworn oath/affirmation the Complainant outlined her employment record and accounting difficulties with the Respondent Principal. Regrettably no direct accounting evidence was given by the Hearsay witnesses (Banks, Revenue, Auditor etc) from the Financial world.

From a review of all Sworn evidence, both Oral and Written, the Adjudication view has to be, on the balance of probabilities, that a very strained relationship had developed between the Parties especially after the November communications. The withdrawal of IT access in the 29th November letter made the realistic continuation of the work very challenging. The meeting of the 7th December was the culmination of intense frustration on both sides. Clearly the Employment relationship was now under severe strain and was most unlikely to last much longer.

From an outside point of view, if an employee and employer differ markedly in interpretation of accounting rules and the Employer withdraws IT access this has to be seen as a Performance issue. Under clear Constructive Dismissal precedents professional performance difficulties between an employer and an employee are not grounds for a Constructive dismissal. In common understanding Employees, “sit tight” and are either Dismissed on straight forward Performance Grounds or both sides satisfactorily resolve the issues and/or end employment on the basis of an amicable settlement.

The Complainant in this case pre-empted option by “Walking Away” on the 7th December 2023.

However on a complete review of all the evidence and the personal demeanour of witnesses the Adjudicator came to the view ( bearing in mind the absolute sanctity of a sworn evidence) that a situation had arisen where the Complainant , without professional representation or advice , gave a hasty resignation.

A finding of Constructive Dismissal is warranted in this case but at a lower end of Redress.

3:3:2:3       Use of Internal Procedures prior to a resignation.

The entire Employment arrangement here did not really allow for traditional Procedures/ Appeals.  By the 7th December 2023 the strained personal relationship was such that it would have been a very difficult challenge to even arrange. The comments above about how employment situations end “Employees sitting tight” are relevant.

3:4       Summary

The view of the Adjudicator, in this most difficult case, was that a Constructive Dismissal took place but at the lower end of probability. Any award of Redress will reflect this view.

Unfair Dismissal, Constructive Dismissal.