ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00050781

Parties:

Complaint:

Date of Adjudication Hearing:  20/08/2024, 17/12/2025 & 11/02/2026

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and  Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant contends that he was unfairly dismissed from his employment following a dispute he had about work practices.

Summary of Complainant’s Case:

The Complainant provided a written submission and gave sworn evidence in the course of the hearings.  His written submission and oral evidence is outlined as follows:

Sequence of events 12th January:

Spoke with Mr M, Managing Director, and raised my concerns about a few jobs which had been done and not in alignment with HSA regulations as per my research for an asbestos awareness campaign I was tasked with. After my first question on notifying the HSA on paper back lino (100% asbestos) which he immediately answered 'all paper back lino should be notified, why, did we have an enquiry?', I said no but from my research it seems a few jobs we had done notification was not carried out or the proper supply of safety equipment. He got personal, shouted at me saying you have a big chip on your shoulders and that I know nothing and asked was I on any of those jobs so how would I know. He eventually calmed down and assured me everything was fine as the analysts signed off on those jobs. It did not sit right with me that he was telling the truth.

13th January. Mr M sent personal WHATSAPP message to try and justify his behaviour and actions by using a motivational video from instagram/youtube. He said not perfect but best we can be in his message.

15th January: Put my concerns I had about methods used in removing 100% asbestos and the health & safety for fellow colleagues, clients and the general public via a formal email at lunchtime on 15th January. Ms DM, Director, Health & Safety Manager   approached me asking for an explanation. She said she did not know what I was talking about and why didn’t I just ask her rather than putting it in an email. She said, we should be notifying HSA on all jobs but if that was done we would have no work. We have to prioritise the work first. I said it should be health and safety first. She said that the email had a legal tone to it and felt like it was going to be used as a stick against them. I replied with I just wanted my concerns addressed and I kindly asked her, as a director and health & safety manager, to speak with Mr M, Managing Director in relation to my concerns outlined in my email. She said he will go mad when he reads it and fire me. I said I will deal with it if that is his response. I then asked her to put her hand on heart and answer the questions especially if potential harm may have been caused. She said she wouldn't, she didn't have to answer anything to me as I’m only an employee and didn't like my tone of questioning. She finally asked me if I was smirking at her before turning her back and walked out of the office. Mr M came into the office at approx 4.20pm that afternoon. He swore, pointed his finger and ordered me into the front office in front of my colleague, and Ms DM was already sitting in there. He pointed at a laptop and said I had 5 minutes to f*****g explain myself and it better be good as it was the final straw - not sure what he meant by that. I asked him to read the email and to address my concerns. He said asbestos has nothing to do with me and I know nothing. He said he only gave me the task of creating the awareness programme to appease me and fill in time. He then got personal sharing private information from my personal life and would not answer the questions. He said it had nothing to f*****g do with me and I have no right to question them. I work for them and they tell me what to do. That there is a hierarchy and i am at the bottom and they are on the top. Ms DM asked again why did i put it in an email and not just ask her and i explained why. She was going to read out the email to me because of her fear of the legal tone and wanted me to understand how she interpreted that way. Mr M stopped her from doing this. He went on a tangent about how a monkey can do my job and that is what I should have been focused on. I replied with for me to do my job 100 per cent and sell the company to potential clients I need to know the company is not harming people hence the email. He spoke about greatness and how great he was for having his company. He said all the potential business I introduced him to would have came in without my effort and in the same breath said how I was going to be his star employee, face of the company, six figure salary, bonuses and my own team but because of the email I had just f****d it up. He spoke on behalf of a colleague how I frustrated that colleague because I was too slow and would not help him. I went into the main office to ask my colleague but he was on the phone. I relayed this back to Mr M and he said that was done by design. I went back in again and asked my colleague if this was true what had been said, apart from one time which we had discussed amongst ourselves the reasoning for that, and he said he didn't want to get involved however answered my question with no before going for a vape. I relayed this back to Mr M. He then started attacking me personally giving reasons why I had no friends, family, children or partner and that I was hypersensitive because my mother passed on from cancer at an early age. Once he finished his projection, I referred him back to my email, concerns and again asked him to answer the questions. He lost his temper again and I had to ask him to calm down and he said I had just put the final cross on my coffin. I didn't know what that meant and asked him to explain. Ms DM intervened and said I should google it. He then told me to get my stuff and leave. He fired/dismissed me and said I’ll probably go to the paper or go on radio telling everyone about it. I asked him to send out my paperwork and arrange to have the car collected. He then said 'another year wasted. I now have to find and train someone else to do the role'. I said it wouldn't be hard for him as a monkey can do my job apparently remarking to his previous comments on my job position. We went back into the main office where he sat down opposite a work colleague. I went to my desk and sat down. He came straight over and asked what the f***k I was doing. I told him I was shutting down my computer which he tried to take from me and I assured him I was only turning it off. As I was leaving the office he shouted 'we'll see how good a friend he is now over the next few months or will he take an unfair dismissal case against me'. I said I had not mentioned anything like that and asked Ms DM to confirm the same and she agreed with me. I left the office @ 4.55pm (normal finish time is 6pm) as per Mr M’s instructions. They paid me for the week and a day plus i think some holiday pay owed up to the 15th January. Payment dates for wages owed after my dismissal were: -

19th January €687

26th January €251

They stopped paying once they sorted wages due and after my email on 2nd February 2024 they lodged the following amounts to back track on their decision of dismissing me. –

13th February €2,536.44 –

23rd February. €429.33

After 14/15 working days I had not received my paper work as requested on 15th so I sent them a follow up email. After a further 5 days they replied. They lodged a lump sum into my account and a further small amount a week after that to try and cover up what they had initially done.   Not sure what they are alluding to in their reply regarding unauthorised leave. How was it authorised in the first place? Why did they stop paying me and then start paying me again and then stop again? 3 weeks without contact...is that normal if they thought it was truly a misunderstanding and not question why I wasn't turning up for work? Why did they stop paying me if it was a misunderstanding? And as soon as I asked for my paperwork for a second time they replied in their email that they were wondering why I didn't turn up and expected me back in the office immediately. As you will see from my emails I gave them opportunities to reconcile on the two separate issues...1) dismissal by being honest and 2) in the presence of two analysts who were involved in the jobs to help clarify my concerns, as a concerned person before handing over to the HSA if they were not prepared to be transparent and truthful. If they had genuinely nothing to hide they would have kindly and openly addressed the concerns raised not deflect, get personal and respond the way they did.

1st March: Contacted WRC for a second time as i could not download the form online and they said they would send out a hard copy for complaints procedure.  

2nd March notified HSA

The Complainant gave sworn evidence on the above and was cross examined by the Respondent’s representative.

The Complainant emailed the WRC on 20 December 2025 as follows:

I wish to clarify a point from the evidence I gave under oath at that hearing. I was asked whether the respondent said the words “you’re fired”, and I answered yes. On reflection, that was not the exact wording used. The words used to me were that I was to get my things and leave. I understood this at the time to mean that my employment had been terminated. I had been fired/ dismissed.

Summary of Respondent’s Case:

The Respondent’s written submission is as follows:

The Respondent is an asbestos removal contractor.  The Complainant commenced employment with the Respondent on 2 November 2022. The Complainant’s role was that of a Business Development Manager. The Complainant was paid an annual salary of €45,000.

This complaint under the Unfair Dismissals Act 1977, was submitted to the Workplace Relations Commission on 13 March 2024. The Complainant alleges that he was unfairly dismissed by the Respondent. The fact of dismissal is in dispute. The Respondent submits that the Complainant effectively resigned, having repeatedly been asked to return to his employment, having declined to do so and having failed to use or exhaust the internal grievance procedure.

Chronology of Events

The following is a chronology of the relevant events:

2 November 2022 The Complainant began employment with the Respondent as Business Development Manager His role was effectively a sales position.

12 January 2024 The Complainant initiated a conversation on a Friday evening with Mr. M, Managing Director, regarding “paperback lino” jobs. Mr M explained what was involved in such jobs and asked if the Respondent had received an enquiry. The Complainant said that no enquiry had been received but went on, to Mr. M’s surprise, to accuse the Respondent of not setting up jobs safely and using the wrong equipment. Mr. M asked if a complaint had been made by anyone, to which the Complainant replied “no”. The Complainant was unable to provide any evidence or explanation for his allegations other than stating that he had a “gut feeling”. Mr. M went on to explain how the Respondent stayed in compliance with regulations and ensured site safety.

15 January 2024              On the following Monday, the Complainant sent an email to Ms DM, Environment, Health, Safety & Quality Manager, and Mr. M, with the subject heading “Concerns for Employees Wellbeing – Exposure Paper Back Lino up to 100% asbestos”. After reading the email, Ms DM immediately went to speak with the Complainant about it. The Complainant claimed to be concerned about the Respondent’s compliance with health and safety requirements associated with asbestos removal. However, the Complainant was unable to identify any specific incidents and again stated he had a “gut feeling” that something was wrong. The Complainant demanded a reply to his email within 24 hours. Ms DM reassured the Complainant that the Respondent was compliant with legislation and best practice requirements and detailed the steps taken to ensure no asbestos exposure and that all jobs were correctly set up. Ms DM explained that she would never be too busy to discuss such concerns and reminded him of how seriously the Respondent takes the health and safety of all staff. Ms DM then left for lunch. After lunch, Mr. M asked the Complainant if he could speak with him about the email. Ms DM was also present. In an effort to address the Complainant’s concerns, Mr. M reiterated the steps taken to ensure health and safety compliance, pointed out that all jobs are independently monitored and signed off and noted that the Respondent had never received a complaint in this area.

The Complainant insisted that he wanted a written reply to his email despite not having raised any specific concern in the email which focussed on generic queries regarding health and safety. Mr. M accepts, with regret, that the conversation did become somewhat heated but he certainly did not shout or swear at the Complainant as alleged. Neither did he dismiss the Complainant. The Respondent takes issue with the Complainant’s account of events and notes that the Complainant is alleging that certain comments were made when same did not occur. Following the conversation, the Complainant left the office. He did not give any indication that he would not be returning.

2 February 2024              Mr. M and Ms DM received an email from the Complainant referring to his alleged dismissal, requesting his P45 and all of his payslips.

9 February 2024              Ms DM replied to the Complainant highlighting the fact that there must have been a misunderstanding and that the Respondent had never intended to dismiss him. Ms DM asked that the Complainant return to work and noted that they could discuss any concerns he had upon his return. Ms DM also noted that the Respondent would pay him for the previous few weeks.

13 February 2024            Ms DM contacted the Complainant again by email, asking him to return to work and noting that the Respondent would not be in a position to pay him for any unauthorised absence beyond that day. The same day the Complainant responded stating that he believed there was no misunderstanding and insisting that he was dismissed.  The Complainant suggested meeting in a public venue to discuss his original concerns. The Complainant suggested that particular representatives from Asbestos Safe (a Dublin-based consultancy firm) be present.

15 February 2024            Ms DM emailed the Complainant and reiterated that the Respondent had not intended to dismiss him and explained that he remained an employee. She once again asked the Complainant to return to work and stated that the Respondent would be happy to meet with him to discuss an concerns and confirmed that he could bring a colleague with him.

19 February 2024            The Complainant replied to Ms DM, again insisting that he was dismissed. The Complainant asked for the Respondent’s bank details so he could return monies he had been paid as he did not accept the transfers. The Complainant once again asked for a meeting with Asbestos Safe.

27 February 2024            Ms DM replied to the Complainant reiterating that he was still an employee of the Respondent. She made one final attempt to ask the Complainant to return to work, stating that the Respondent would be happy to meet to discuss any concerns he had and to deal with same though the internal grievance procedure.

9 March 2024                   Ms DM followed up on her previous email to which the Complainant had not replied. She stated that she had no choice but to regard the Complainant’s continuing absence as unauthorised. The Complainant was invited to a disciplinary hearing on 19 March 2024 to explain his unauthorised absence. The Complainant did not respond.

13 March 2024  The Complainant filed this complaint with the WRC.

17 May 2024                    The Respondent received an email from the Health and Safety Authority to say that there would be an investigation of the business on 21 May 2024. The said investigation was prompted by a complaint made by the Complainant who accused the Respondent of endangering lives.

21 May 2024                    A HSA inspection was carried out at the Respondent’s premises. The inspector did not identify a single issue in relation to any of the jobs they inspected.

The Complainant alleges that he was dismissed on 15 January 2024. The Respondent strenuously denies that the Complainant was ever dismissed. The Respondent made multiple requests for the Complainant to return to work but regrettably he never did. The Complainant now essentially alleges that he was constructively dismissed. He did not, however, exhaust internal procedures before abandoning his job and did not respond to an invitation to utilise the internal grievance procedure.

Case law was submitted in relation to the tests applied in claims of constructive dismissal.

It is submitted that in this instance, the Complainant’s resignation clearly did not take place in circumstances amounting to constructive dismissal.

The Respondent also notes that it is long settled that employees must exhaust any internal grievance (or problem resolution) procedure before resigning if they are to succeed with a claim of constructive dismissal arising from allegations of unreasonable behaviour by their employer.

Case law was submitted in relation to the requirement for employees to utilise grievance procedures before claiming constructive dismissal.

In the instant case the Complainant did not invoke the internal grievance procedure and certainly did not exhaust it. Rather, he repeatedly refused to engage with his employer when requested to return to work.

Compensation, Loss and Mitigation

The Respondent notes that the Complainant is and was, by virtue of section 7(2)(c) of the Unfair Dismissals Act 1977 (as amended) under a duty to mitigate any loss that he has suffered. Previous decisions of the Workplace Relations Commission and the Labour Court on this issue note the decision of the Employment Appeals Tribunal in the case Sheehan v Continental Administration Co Ltd (UD858/1999) in which the Tribunal stated that:

“a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.

Conclusion

The Respondent respectfully submits that:

2024. The Complainant was not dismissed by the Respondent on 15 January 2024.
2025. The Complainant refused the Respondent’s multiple requests to return to the workplace. The Complainant also ignored the Respondent’s offer to address any concerns via the internal grievance procedure. That fact alone is fatal to his claim of constructive dismissal.
2026. The Complainant has not yet furnished any records of efforts made to mitigate any losses.

Evidence from the EHSQ Manager

Sworn evidence was given by the Environment, Health, Safety & Quality Manager Ms DM.  She stated that she is responsible for the health, safety and environmental issues in the company.  She confirmed that the Complainant did not generally work on sites.  He predominantly worked in the office and was responsible for generating sales.  She had regular contact with the H.S.A. and confirmed that there were 2 H.S.A. inspections after the Complainant referred them and both reports contained immaculate results with commendations.  When the Complainant emailed her and the Company MD in January 2024, she asked him was there a complaint and he just said “read the email”.  She explained to him that risk assessments were carried out and if he had a particular concern he could come to her.  She was present on 15 January 2024 and agreed that the conversation between the Complainant and Mr M became somewhat heated.  The complainant seemed to be determined to prove that the company engaged in unsafe practices.  However, there was no evidence whatsoever that this was the case.  Ms DM followed up a number of times trying to get the Complainant back to work and use the grievance procedure.  Eventually she had to advise him that his failure to return would of necessity involve a disciplinary procedure.

Evidence from the MD

Sworn evidence was given by the Managing Director of the Company, Mr M.

He stated that he set up the company 15 years ago.  He was friends with the Complainant since he was 12 years old.  He accommodated him in his house for approximately 18 months a few years ago when the Complainant had some personal difficulties.  He disagreed with the Complainant’s evidence that he approached the Complainant to work for him.  It was the opposite in that the Complainant applied for work with the Respondent.  He described what happened on the 12 January 2024.  The Complainant questioned him on jobs, paper back lino procedures.  When the Complainant was asked what he was referring to, he just said he had a “gut feeling”.   The Respondent stated that a little knowledge can be a dangerous thing.  He stated that the Complainant was always reading books about asbestos but had no hands on experience and was always focussed on the negatives.  The Complainant seemed to be accusing the company of not setting up jobs in a safe manner yet had no evidence to back this up.  The witness said he sent the message “Not perfect but the best we can do” as a motivational message.  He was blindsided by the email of 15 January 2024 in which the Complainant posed some 10 questions.  When he was asked to explain what the problem is he just kept saying “read the email” and became excited and said “I can’t work for someone I don’t trust”.  He said the Complainant approached him for work, and the original role that he gave the Complainant was in Sales.  He then developed this role to Business Development Manager in or around December 2024.  The Complainant had no role in asbestos monitoring or asbestos awareness.   He denied that he told the Complainant that all jobs involving paper back lino need to be reported to the H.S.A.  Regarding the 15 January 2024, he denied that he told the Complainant to leave, he stated that the Complainant left of his own accord.  He refuted the Complainant’s evidence that he shouted or swore at the Complainant.

Findings and Conclusions:

In this case the dismissal of the Complainant is in dispute.

The definitions of dismissal contained in Section 1 of the Act are:

“dismissal” in relation to an employee means –

• (a) The termination by his employer of the employee’s contract of employment with the employee, 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”

I note that the Respondent’s submission and jurisprudence cited posited the case that the Complainant’s complaint was of constructive dismissal.   In the investigation of this complaint, I have reviewed the written submissions and the oral evidence given over the course of three hearing days and I find that the Complainant relies on the incident between him and the Respondent on 15 January 2024 to ground his case of unfair dismissal.  There was considerable irreconcilable evidence from the two main parties.  Much argument was aired during the hearings over who approached who to set up the employment of the Complainant, what each person said or didn’t say to one another and what time in the afternoon the relevant heated discussion took place.  The Complainant refers to the incident on 15 January 2024 where there was obviously a heated argument between him and his employer about the Complainant’s concerns regarding asbestos.  The fact that the argument was heated was not in dispute in the Respondent’s written submission.                         

Whatever the Respondent said to the Complainant, the Complainant took it to mean he was fired from his job.  I note the Complainant’s email following a hearing which confirmed that “you’re fired” were not the exact words used.

In the matter of In Devaney v DNT Distribution Company Ltd, UD 412/1993, the Employment Appeals Tribunal held that,

“... where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”

Regarding a dispute in relation to the fact of dismissal, in the matter of Longford County Council v. Joseph McManus UDD 1753 the Labour Court held as follows,

“As a dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined.”

The question as in Devaney above is did the employer mean to bring the contract to an end?  I note that the Respondent made multiple requests between February and March 2024 to have the Complainant return to work and try and resolve the differences between them.  The Complainant, for his part, on the one hand considered himself dismissed but then intended to dictate the circumstances where others from outside the company would be involved in airing his grievances with the Respondent.  He likewise rebuffed all attempts to come back to work and did not respond to the Respondent’s attempts to have him utilise a grievance procedure.   In the circumstances, I find that the Complainant was not dismissed or unfairly dismissed from his employment.  The complaint is not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint  in accordance with the relevant redress provisions under Schedule 6 of that Act.

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.

 Based on the reasons and findings above, I have decided that the complaint is not well founded.

Dated:   16th of April 2026

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: