Complainant

Respondent

Parties

Christopher  Bell

Pv Generation Limited

Representatives

Lorna Madden BL instructed by  TJ Hegarty’s LLP Solicitors

Peter Dunlea, Peninsula Business Services

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-00062121-001

11/03/2024

On 11 March 2024, the Complainant through his Solicitor submitted a complaint of unfair dismissal from his employment as an Installer Roofer which spanned 17 February 2022 to 16 November 2023.

On March 14, 2024, the Respondent Representative, Peninsula, came on record in the case.

On 9 June 2025, both Parties were invited to attend a scheduled hearing in the case set for 28 July 2025, in Cork.

One week before the hearing, I wrote to both parties seeking written submissions. I requested the Complainant provide a table of loss and mitigation.

On 22 July 2025, I received a copy of the Respondent submission. This was followed by the Complainant submission.

Both parties were legally represented.

At the conclusion of the hearing, I asked the Respondent to provide start dates for the junior workers who are featured in evidence. I requested details on application of annual leave. I received these details shortly after the hearing concluded. These were shared with the Complainant but did not generate a response.

The complaint received on 11 March 2024 placed the complainant as an Installer Roofer of 21 months service in receipt of €65,000 annual remuneration in respect of a 40-hour week. This was his second period of employment with the respondent, interspersed by a covid related lay off in 2020.

The Complainant submitted that he was pleading constructive dismissal on 16 November 2023. He sought the remedy of compensation and confirmed that he had found new work on 27 November 2023. A differential in pay occurred.

By way of written submission, Counsel for the complainant outlined that the complainant had been unfairly selected for lay off, which commenced on 16 October 2023.

On 8 November 2023, the layoff was extended by 4 weeks.

On 16 November 2023, the complainant resigned his position as

“.. the Respondent had breached the terms of his contract and acted unreasonably due to the selection process and lay off criteria being unfair and unreasonable “.

Counsel submitted that the Respondent hired new workers on lower salaries than the complainant during Summer 2023. The lay off which followed for the complainant appeared to be a consequence of this.

This process was void of explanation, or selection criteria.

On November 16, 2023, the Complainant resigned in written format.

“To whom it may concern,

Due to the recent treatment, I have received from your company I feel I have no choice but to resign. Your company has treated me with nothing but disrespect and overall, I am being treated differently from other employees. This was not an easy choice for me to make as I did not want to leave but as a result of the unfair treatment I feel I am being pushed out the door.

Regards, Christopher Bell.”

The Complainant had continuing loss at hearing day of €7,756.00. He remains in active new employment.

Counsel relied on the contract test Western Excavating (ECC) ltd v Sharp [1978] ICR 121 and explored and evaluated the parameters of lay off in the instant case.

 “… a reasonable belief that the cessation of employment would not be permanent “

Industrial Yarns ltd v Greene [1984] ILRM 15, Costello J held that the conditions of lay off had not been met and the complainant could rely on this in repudiation. This case was opened at hearing.

The Respondent in this case did not engage in the parameters of Lay Off on proving that work was not available or that it was of a temporary nature. The complainant was the sole person laid off. He was the longest serving roofer and operated as lead roofer, which was integral to operations.

The resignation was a reasonable action from the complainant faced with fluidity in his employment through an 8-week unexplained lay off and no selection methodology. He was the family breadwinner.

Complainant, Mr Bell, Evidence by oath:

The Complainant outlined the nature of his work as Lead roofer from February 2022. There 4 crews in Cork at that time. He undertook mainly domestic work around west cork and Waterford.

He recalled the lead Installer Mr X informing him of a downturn in work and a temporary lay off of 1 month on 13 October 2023. He knew this was not right and was unhappy. He was the longest serving roofer and attributed the decision to his lay off to the imposition a verbal warning of the month previous.

He acknowledged that he received payment for two weeks of lay off but was very troubled when the period of lay off was extended. He told the company “It was not right “and he would be in touch with his Solicitor.

The Complainant believed he had no option outside of resignation as he had “to pay bills “The DSP payment which replaced his wages “would not scratch the surface “in terms of differential in income.

He acknowledged that he found new work and give limited evidence on loss and mitigation.

He argued that he was unfairly picked out of 12 roofers as he contended that his service was the longest.

During cross examination, he denied prior knowledge of the slow down. He recalled seeing three other lads outside the office door on the day of first declaration of lay off.

He was confused as he had asked Mr X was something up the day before this and was told that “he had nothing to worry about “

In addressing Mr Dunlea on why he had not disputed the verbal warning in respect of the first absence in August and second in September 2023?

He said that “I just had to take it on the chin “

The Complainant confirmed he was laid off on 13 October 2023. He acknowledged he was in communication with the company during this period, but denied he had new work. He countered that he “had a job offer “and was exploring his options prior to meeting with the company.

He was unable to recall when he commenced in the new job, which he later clarified as 27 November 2023

He clarified that he understands lay off was extended due to a failure for business to “pick up “.

He gave evidence on the logistics in travel on the new work. He outlined that he moved as he was seeking specialisation rather than a generic job. He was unable to give an opinion on whether that constituted financial loss.

In redirect, the complainant gave further evidence in the type of work he took on post his departure. He linked the selection for lay off to an unstable verbal warning.

He had not appealed the layoff. He needed to work, so had not considered alternatives to his leaving.

 In conclusion, Ms Madden reflected on 9 days sick leave. She argued that lay off meant no work, no salary. The lay off was not clearly discernible as genuine as there was no material evidence available on the financial downturn. Neither was a Profit and Loss record relied on, and it was unclear just who made the decision to lay the complainant off.

Neither was it clear whether anyone held a reasonable belief that a return was viable. This deviated from TLO and framed a permanent lay off. The Selection criteria applied were fundamentally flawed and individualised to the complainant rather than of an impersonal nature.

The Complainant was unfairly singled off for TLO and when this was extended further, the complainant was further uneasy and was entitled to resign.

The TLO amounted to an unpaid suspension in respect of the early application of verbal warning and punitive. This was behaviour that was so unreasonable that the complainant was entitled to resign.

In reviewing loss and mitigation, Ms Madden contended that the complainant was permitted an award of €6,700 on the loss he sustained.

The Respondent operates   a solar panel installation business. The Respondent representative has rejected the claim for constructive dismissal.

It was common case that the complainant commenced employment as an Installer Roofing on 17 February 2022. This was the second instance of employment.

The Respondent exhibited a Statement of main terms of employment, inclusive of grievance procedure and mobility clause. On 4 April 2022, the Respondent also provided the complainant an employee handbook by soft copy. A hard copy was available in both offices.

The Respondent pointed to section D in issue 2.

“ In the event that the company is faced with a shortage of work, or a period of financial disruption , or is unable to provide you with work for any other reason , then you agree that the company may temporarily place you on reduced working hours , short time working , lay off and or implement a temporary pay reduction . If you are placed on a reduced working week, or short time working, your pay will be reduced according to time actually worked and, if applicable, in accordance with any concurrent temporary pay reduction.

If you are placed on lay off, then no payments will be made to you. The Com [Pany will seek to provide you as much notice as is reasonably practicable for any shortage of work or pay reduction. Any benefits accrued during such a period of reduced working hours, short time working or lay off will be on pro rata basis “

This formed part of the contract and conditions.

Two contractual amendments followed in 2022 to reflect salary increases.

17 May 2022   €46,800

28 November 2022 €65,000

The Respondent secured work via the TAMS grants from the Dept of Agriculture (Targeted Agricultural Modernisation Scheme) Grant dispersal was delayed in 2023 which ahd the knock-on effect of “significant reduction in the amount of work the respondent had. The Government body attributed the delay to implementation of a new IT system. This led to significant financial difficulties.

Mr Dunlea illustrated an extract from a political blog which captured farmers waiting for government grants for works completed under TAMs.

The period of financial challenge prompted the respondent to explore any potential for dismissals and layoffs.

The scoping exercise was based on.

Tenure

Performance

Maintain key operations.

 3 Staff with sub one years’ service were dismissed.

On September 19, 2023, the complainant received a verbal warning for problem attendance in a brief period of time.

The Complainant was placed on lay off, while awaiting new work on 16 October 2023.

He was provided with a letter to that effect on 22 October 2023 and provided with an extra 2 weeks’ pay in support.

The Lay off was extended for another 4 weeks on 8 November 2023. This coincided with the complainant informing the company he had new work lined up for 20 November 2023.

The Respondent formalised the notification of extension by letter dated 9 November 2023 and sought an update on whether the complainant intended to resign in light of his declaration on new work found?

The Complainant confirmed his resignation in writing by email on 16 November 2023.

The Respondent contended that he “may have resigned in the heat of the moment and without fully addressing your issues. I am concerned there could be some underlying issues in respect of your employment with us, which we need to address “

The grievance procedure was provided and a request for the complainant to reconsider his resignation “and allow us to address your grievances through our internal procedures “within 5 working days. The author of this email, Ms A, Hr Manager was not available to give evidence.

The Complainant left employment without responding to this note.

Business improved early in January 2024 as the TAMS grants had resolved. The Respondent rehired staff. It was the Respondent case that the Complainant, had he remained on the books would have been returned to work.

Mr Dunlea, for the Respondent argued that the complainant was not constructively dismissed. Reliant on Western Excavating (ECC) ltd and Sharp [1978] IRLR 332 applied in Túsla v Flynn UDD 1810, Mr Dunlea reflected that it was necessary for the complainant to prove that because of the conduct of the respondent, he was or would have been entitled, or it was or would have been reasonable for him to terminate the contract of employment

Kearns v Silverfern Propertie ltd [2013] 2 JIEC 0701

Caci non-life ltd v Daniela Paone [2017] UDD 750, objective test.

Donegan v Co Limerick VEC UD828/2011

Murray v Rockabill Shellfish ltd 2002/23 ELR 331

Mr Dunlea contended that the complainant had not proved that he was reasonable in resigning during a period of lay off which carried an expectation of his resumption. He was the sole employee on lay off when three others were dismissed.

The Complainant had not actioned the grievance procedure prior to his departure to “remedy his complaint “Conway v Ulster Bank UD 474/1981.

The Respondent contended that the Complainant resigned on a voluntary basis, having found new work. The claim for unfair dismissal should be dismissed.

At hearing, Mr Dunlea outlined that the Lay off conducted was genuine and arose from financial pressures within the business, caused by the administrative lag in the Agricultural grants scheme.

Lay off was not of the respondent choosing but was perfectly legitimate. however, it cannot be regarded as grounds for a claim of constructive dismissal. The parties met during lay off. There was a clear expectation of resumption of work which made the complainant decision to resign as unreasonable and precipitous.

Evidence of Ms Mc Ardle, Managing Director, by oath

Ms Mc Ardle confirmed that she operated the day-to-day business from Monaghan. Cork was a hub.

She was a member of the Senior Management team for 130 staff and had been in business 10 years. This was the first occasion where layoffs lasted two months.

Ms Mc Ardle gave evidence on the grouping of grants made available to pay for product. There were manifest delays in approving some of these grants which had a negative knock-on effect at the business.

October 2023 set the scene for that downturn and 60% TAMS grant delays.

The Company awaited updates and anticipated a lull lasting a couple of months.

She described the climate as devastating as “no one likes to deliver bad news “

Crews were assembled and “ready to go “

Ms Mc Ardle spoke with Ms A and directed a review of the crews on low performance, attendance, quality, attitude to identify a cohort for temporary layoff.

They dismissed three staff by means of redundancy and one, the complainant was placed on temporary layoff.

This occurred as “he was with us the longest “He had 9 sick days.

During cross examination, Ms Mc Ardle confirmed a reduction in income generation between September and October 2023. Accounts were not available to the hearing, but loss was estimated at 1m deficit.

There were 12 roofers out of 130 staff. 40 Installers. Ms Mc Ardle was unsure how many were based in Cork.

Ms Madden put to Ms Mc Ardle that in light of what appeared a permanent reduction in roofers, surely what occurred could not be described as a temporary layoff?

Ms Mc Ardle rejected the reference to permanent and countered that “we were waiting for the Dept of Agriculture “

Ms Madden said that agricultural related lay off was not relevant to the complainant, who only worked on domestic jobs.

Ms Mc Ardle replied that domestic had slowed due to saturation of the market and not enough work remained in residential. There were more roofers than electricians.

By week commencing October 16, 2023, there were 3 to 4 jobs available as against a typical 25-30.

Work was spread across Munster, none in Monaghan.

Short time was not considered as temporary lay off was viewed as a better fit for the circumstances.

Ms Mc Ardle struggled to reflect the factors which influenced the selection process for temporary layoff and deferred to human resources and the handbook. She was unable to cross match a stated policy on lay off but emphasised that selection was based on an “impersonal selection “

All 3 lead roofers were on €65,000.

Mr X, who is no longer at the business made the decision on lay off. Ms Mc Ardle approved it.

She was aware that Human resources had liaised with the complainant during lay off and the prospect of a review “if things picked up “

Ms Mc Ardle confirmed that the complainant was paid annual leave during lay off.

The Complainant was asked to reconsider his stance on resignation on two occasions.

During redirect, Ms Mc Ardle confirmed that the complainant’s performance played a role in his selection for TLO, but it was not the sole determinant.

The main reason arose from the financial downturn.

She understood that the complainant had made his mind up on leaving and she did not wish to disturb that.

She and both her directors had concerns on financial viability at the business as there was “not enough Work “over heads had to be cut.

In closing Mr Dunlea concluded that the TLO was solely attributed to the downturn at the business. The selection criteria were reasonable.

The Complainant did not counter or appeal this action. He was paid salary for two of the first 4 weeks.

Ms Mc Ardle confirmed that the lay off could have been managed better, but the circumstances could never have been viewed as constituting redundancy situation.

The Complainant was placed on temporary lay off from which he unreasonably resigned.

I have been requested to reach a decision in this claim for Constructive Dismissal which occurred on 16 November 2023.

In reaching this Decision, I have heard from both parties, I have considered each party’s written submission, and I have reflected on the start dates for Mr A and B in June 2023. I have also considered the case law submitted by both parties.

It is of note that the complainant had two separate periods of employment with this company, interspersed by a covid related event. He was known to them.

The employment which commenced on 17 February 2022 is stand alone for the purposes of this case.

The Complainant has submitted that he was treated so badly by his employer that he had no option outside resignation.

The Respondent has rejected that submission and has marked the decision to leave as voluntary and wholly unnecessary in the face of the parameters of temporary layoff. The Respondent has also contended that a vacuum in activation of a grievance must be considered as a compelling fact.

The claim comes to the WRC some 4 months post the conclusion of the employment on 16 November 2023.

I found it unusual that neither party addressed the earlier employment relationship between the parties 2017-2020. I was not made aware of any animus, discord or otherwise from that period.

 I appreciate that this is a young company which did not have established custom and practice in the operation of lay off. The company relied on the shortage of work section contained in the staff handbook to legitimise lay off.

 However, they were unable to place a date of issue on this “issue 2” document. I accept that the complainant was provided with a handbook in February 2022, but was it issue 2 formations? I have no certainty here; therefore, some doubt lingers, which has survived the hearing.

Constructive Dismissal

The Complainant has claimed constructive dismissal. The Respondent has rejected the claim and has marked the termination wholly unnecessary in terms of unutilised internal proceedings and the soon after occurrence of an improvement in market forces for the company and the resultant recruitment process.

The definition of constructive Dismissal is found in Section 1(b) of the Act.

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,

The burden of proof rests firmly with the Complainant to prove that he was entitled to resign or it was reasonable for him to dismiss himself in the circumstances relied on.

Both Parties have relied on Western Excavating (ECC) ltd and Sharp [1978] IRLR 332, a UK case, where Justice Denning emphasised the necessity for termination to be proximate in time to the circumstances relied on.

Mr Dunlea, reliant on Conway argued that the complainant skipped a vital step of resolution in his rush to termination. The Complainant argued he had “no option but to resign on 16 November 2023 “.

The Complainant has put forward the circumstances surrounding the management of his Temporary Lay off as the root cause of his decision to dismiss himself. The Respondent has rejected this argument.

Temporary Lay Off.

First, to set the scene , let me mention the provisions of Section 11 of the Redundancy Payments Act , 1967 from where Lay Off springs .

Lay-off and short-time.

11.— (1) Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposes of this Act as lay-off.

Section 12 of the same Act outlines the circumstances which need to prevail in triggering a claim for Redundancy from Lay off, a scenario, which has not arisen in this case.

The High Court in  Petkeviciusv Goode Concrete Ltd [2014] E.L.R. 117 held that “ Lay off “ as an express term of the contract permits a period of nonpayment .

In John Law v Irish Country Meats ltd [1998] 9 ELR 266. White J at the High Court held that Mr Law was entitled to receive his 4 weeks pay for a period of industrial unrest , in which he had not participated , but where all staff were first placed on protective notice followed by Labour Court intervention and site  layoffs against a back drop of a profound change agenda at the meat factory .

Such layoffs were normally done in consultation with the union, of short duration, and operated on a last in, first out basis.

It is clear in the instant case, that outside of Covid layoffs, the complainants’ lay off was the first managed by the respondent.

Judge White concluded that Mr Law while not participant in the Industrial action, was wrongly laid off without pay.

(5) The plaintiff's lay off was not temporary but formed part of a winding down by the defendant of its work force. It would have led to redundancy but for the acceptance by the workforce of a Labour Court recommendation, which paved the way for a return to work. It was not a situation to which, due to custom and practice, the defendant was entitled to lay off without pay.

In Ferrick et al and Monaghan Poultry Products ltd (voluntary Liquidation

 MN2795/2001-MN2974/2001, in claims taken under the Minimum Notice Legislation.

The circumstances of the case involved a large scale lay off when production ceased.

The question for the EAT was “whether the employees were in reality dismissed or laid off in August 2001?

In applying Industrial Yarns v Manley, on appeal from EAT,

Costello J

“It is clear that the Employer in operating this section is not terminating the contract of employment – there is a cesser of employment, but the contract still subsists.”

The EAT went on to test whether the employer genuinely and reasonably held the belief that the cessation would be temporary.?

The EAT were persuaded by the company arguments and recognised the August layoffs as temporary and settled on an October date of dismissal for the purpose of the Minimum Notice and Terms of Employment Act, 1973.

I must examine the respondent’s belief system on longevity of lay off during October – November 2023. I have undertaken this as the Complainant was the sole employee laid off and others with less service such as Mr A and Mr B, both hired in June 2023 were simply dismissed. Dismissal carries a finality.

I have some concerns that the Respondent did not exhibit the review of all staff relied on in Ms Mc Ardle’s evidence.

In applying the doctrine of a reasonable woman test, I asked the Respondent how someone would know they were in a selection process being considered for lay off? It is clear to me that this was a one-sided process, in which the complainant did not hold influence as I accept his evidence of his asking his manager what a forthcoming meeting was about and he was told he “Would be ok “.

I could not establish validation of income reduction to align with “downturn” or income regeneration to align with improved trading.

I found a policy on redundancy in the staff handbook but not a reciprocal policy on lay off outside of the clause relied on by the Respondent.

I have established the Lay Off process was constructed on a “ dubious “ basis and it originated  from the section set out in the handbook below.

D) SHORTAGE OF WORK/FINANCIAL DISRUPTION

 In the event that the Company is faced with a shortage of work, or a period of financial disruption, or is unable to provide you with work for any other reason, then you agree that the Company may temporarily place you on reduced working hours, short time working, lay-off, and/or implement a temporary pay reduction. If you are placed on a reduced working week, or short time working, your pay will be reduced according to time actually worked and, if applicable, in accordance with any concurrent temporary pay reduction. If you are placed on lay off, then no payments will be made to you. The Company will seek to provide you as much notice as is reasonably practicable for any shortage of work or pay reduction. Any benefits accrued during such a period of reduced working hours, short time working or lay-off will be on a pro rata basis. The entirety of this section entitled “Shortage of Work / Financial Disruption” forms part of your contractual terms and conditions.

I have some unease on this section as it is not visibly incorporated in the statement of terms, which remains unsigned by the complainant. I also find it ambiguous as it implies a universal acceptance of temporary layoff and pay reduction, which conflicts with the protection clauses of Section 11 of Payment of Wages Act, 1991 and Section 13 of the Unfair Dismissals Act, 1977.

The Respondent has not referred to this clause in them inter party correspondence on lay off with the complainant from October 13 onwards. I did not have the benefit of the senior site Manager or the Human Resource Manager at hearing and therefore, I have focused on Ms Mc Ardle’s evidence to inform my findings.

The distinction between lay off and dismissal is enshrined in the temporal limitation surrounding Lay Off. Section 11 of the Redundancy Payments Act, 1967 refers.

I found the Complainant credible in his expression of an upward adjustment of salary during his tenure. He appeared bewildered by the operation of the verbal warning in September 2023. The parties were not at one in their recollection of absences. The Respondent said 9 sick days, the complainant 2 sick days in 5 months. The warning reflected “a failure to turn up for work “but was not embedded in any procedural framework, just a casual email without a timeline for duration or an opportunity to appeal.

As a verbal warning is meant to be corrective, I could not discern from the evidence, just where that corrective action took place as circumstances were overtaken by the temporary layoff.

I am persuaded by Ms Maddens arguments when she pointed to a successive departure from both the disciplinary procedure and a comprehendible lay off procedure, which placed the complainant into a corner of loss of trust in his employer. I noted that he was uneasy as he watched colleagues being dismissed on 4 weeks paid notice as opposed to his retention on lay off on 2 weeks’ notice. That unease did not dissipate for him.

I was looking for evidence where the company could point to a conversation where they explained the circumstances of the lay off to the complainant on market forces alone. I did not find this.

Instead, for some unusual and unfair reason, they made a selection on lay off partly linked to the complainant’s recent disciplinary record. I find that the Respondent erred here.

I found this to be a double punishment and thus unfair. It generated a chasm in the employment relationship.

I accept that the Complainant should have appealed the verbal warning instead of letting the matter fester at the business.

 However, I found that the complainant did articulate his dissatisfaction with his treatment at the business when the parties met on 8 November 2023. This constitutes a verbal ventilation which is distinguished from Conway and one which ought to have prompted real time engagement between the parties as the grievance policy permitted.

Instead, both parties got lost in the complainants’ job offer, which he eventually accepted.

I can understand why a sole employee on temporary lay off would consider the option of new work. It is pragmatic and sensible but could easily have been countered by the respondent had they made a bid for his retention or resumption, this did not occur.

Instead, once more, I am persuaded by the complainant contention on his letter of termination that “he was being pushed out the door “.

I can understand his thought processes as he resigned his job.

However, does the termination fit the provisions of a Constructive Dismissal in accordance with Section 1 of the Act.?

In Berber v Dunnes Stores Ltd [2009] IESC 10, a claim for wrongful dismissal of long serving employee. Finnegan J set out the matrix to be considered.

 The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably, and sensibly in order to determine if it is such that an employee can put up with it.”

The test is objective.

•  The test requires that the conduct of both employer and employee be considered.
• The conduct of the parties as a whole and the cumulative effect must be looked at.

The Complainant contended that the lay off procedure was not properly applied to him and stood in sharp contrast to how other employees were treated. He also linked the lay off to a consequence of the verbal warning applied some 1 month previously which cumulatively caused him to lose confidence in his employer so as to justify his termination. He did not engage in the “offer to reconsider “letter of November 16, 2023.

The Respondent contended this was a genuine lay off which had its catalyst in market forces and an administrative lull in grant money reception from the Government. They were disappointed by the complainant’s decision to leave and tried to get him to reconsider.

The first issue to capture in this case is that the complainant was rewarded by two sizeable pay increases from his start date of February 2022. I accept this was a business in ascent, which did not anticipate the grant lull. However, I accept the complainant evidence that he worked in mainly domestic and not agricultural settings from where the grant hiatus emerged.

For me, the layoff was poorly thought out and executed by the respondent. I can find no objective basis for the respondent to include a poorly conducted disciplinary into a lay off. They erred in this regard. I also find that the false assurances given to complainant that “he would be ok “prior to notification of lay off worthy of being teased out by the Manager, who was not available at hearing. Perhaps he meant, your job will not end, but I will never know.

I have reflected on the complainant’s assertion that he was targeted differently to Mr A and B, hired in June 2023. He was not reassured by the respondent reference to contractual notice being required in their case and not his. He ought to have understood the contractual differences.

I cannot accept the legitimacy of the reliance on a universal acceptance of temporary layoff from the handbook. I have not found certainty on when that handbook was commissioned as I have not had sight of the complainant’s signature of acceptance.

I find this clause must be considered void in accordance with Section 13 of the Unfair Dismissal Act 1977, as amended.

I cannot bind the complainant to a universal application of lay off, which waivered his rights to a genuine lay off when I cannot find anywhere this was explained to him at the outset of employment. Board of Management of Malahide Community School v Conaty [2019] IEHC 486

It is of cardinal importance for me that the Respondent did not action the clause on conclusion of employment, without notice, nor did they conduct an exit interview.

The Employment was formally recorded as terminated for administrative record purposes on December 1, 2023.

The Respondent confirmed that business improved by January 2024, yet the Complainant was not approached to return.

I am satisfied that the Complainant was feeling “the cold wind blow” in this employment from September 2023 onwards. This was not aided by imposition of temporary lay off to him as the sole employee.

I found the complainant erred in not appealing the verbal warning in September 2023. The Respondent erred in placing the complainant on a “dubious “lay off on a very frail selection matrix from 16 October 2023, while in fact paying the first two weeks of that lay off. Lay Off is meant to be an impersonal act to allow the business to breathe / recover. I am struck on this occasion, just how tailored it was to the complainant.

I find that the respondent cannot safely exercise the clause on lay off contained in the handbook.

The November 8 meeting provided grounds for the parties to engage on the employment relationship. Instead, this resulted in a further extension of lay off, with no end in sight.

I note that the administrative lull in grant was not delineated in both letters of lay off. The Respondent was not specific in that regard.

The November 16 email captured the pressure felt by the complainant in claiming an involuntary termination of employment. I accept he “had bills to pay “.

I would have liked to have seen a veritable grievance process actioned and engaged in to save this employment, which was clearly mutually beneficial up to September 2023.

The Respondent was unreasonable in not taking up this gauntlet ventilated on November 8, 2023, collaboration.

I found the reference to anticipated new work to be a “red herring “

In conclusion, I find that the Complainant made a reasonable call in response to the accumulation of a poorly conducted disciplinary procedure and individualised lay off to consider himself dismissed on November 16, 2023. He was honest when he said he felt “pushed out “and was fearful of further challenging treatment.

I acknowledge there were shortcomings in his actions in terms of not acting pro-actively to appeal the verbal warning of September 2023 and indeed the layoff itself.

However, I am left with a keen sense of disappointment that on inquiry the respondent was unable to identify the “underlying issues “referred to in November 16 correspondence to the complainant.

Finally, I find that the Complainant acted reasonably when he dismissed himself on November 16 the during a period of lay off, which I have found to be dubious.

I have found that the Complainant cannot be bound by a contractual reference to a universal mechanism for lay off as this is void.

I have found that the Complainant did raise his dissatisfaction with his treatment at the business, but he was not heard.

I have found that the reference to new work as an apparent deterrent to saving the job was a red herring.

I would have preferred if the complainant had appealed the verbal warning and/or the Lay Off.

I accept that the Complainant was the recipient of a changed wind in the employment relationship post September 2023 which intensified during an unanticipated lay off from October 2023.

I have found serious shortcomings in how both warning and lay off were conducted which crystallised as being “pushed you “for complainant. I accept that he had lost confidence in his employer on November 16 and he was entitled to and was reasonable in his decision to resign.

This Lay off was in response to an administrative lull in the proceeds of grant reception from customers in the agricultural sector, yet the complainant worked mainly in domestic solar panels.

I find that the complainant has satisfied the test in Berber.

He was constructively dismissed.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the Complainant has proved he was constructively dismissed on November 16, 2023.

I find that the employment relationship is over and compensation is the most appropriate remedy in the case.

I have studied the wage differential within the new work obtained, I order the Respondent to pay the Complainant € 6, 160 .00, nett as just and equitable compensation in respect of the termination of employment . (calculated as seven weeks) This covers actual and prospective loss .

Claim for Constructive Dismissal during Lay Off