The Complainant commenced work with the Respondent as an Apprentice Carpenter on the 1st of May 2018.  The Complainant claimed he was unfairly dismissed on the 21st of March 2020. The Respondent denied that there was a dismissal.

The company was temporarily closed due to Covid-19 and all of the employees were put on the 70% employment wage subsidy scheme (EWSS).  A company ‘WhatsApp’ group was formed and if an employee agreed to the wage subsidy scheme, they were asked to give a thumbs up ‘emoji’.  If they did not agree they were asked to give a thumbs down emoji.  The Complainant gave a thumbs down because 70% of his wages would have equated to roughly €160 which was not a viable financial option for him as he has a family that he needs to provide for.  After giving the thumbs down, the Complainant submitted that he was removed from the group and informed that if he did not agree to this that there would be no job for him to return to when the company reopened after lockdown.

The Complainant then contacted the community welfare officer, who agreed to help him out during this time. He then informed the Respondent that he was in a position to accept the wage subsidy scheme, contrary to his initial choice. The Complainant contended that it was then that he had been told that there would not be enough work for him to go back to the Respondent company and he had been dismissed via ‘WhatsApp’. The Complainant further added that the Managing Director of the company promised him that a letter would follow from the Human Resources Department clarifying the Employee’s position, but he never received such a letter.

The Respondent denied that the complainant had been unfairly dismissed. The Respondent stated that it set up a ‘WhatsApp’ group to determine whether employees would agree with coming to work under the Employment Wage Subsidy Scheme (EWSS) but that the Employee had declined and instead opted to apply for the Pandemic Unemployment Payment (PUP).  Shortly afterwards, the Complainant changed his mind and re-applied for the EWSS scheme but in the meantime the Respondent asserted that had it had already employed its full complement of staff and was not in a position to take the Employee back at that time.

The Adjudication Officer noted that it was clear in this dispute that that the Employee and the Employer were on good personal terms, and each did not significantly contradict the account given by both parties, which was unusual in itself.  It was also clear that the Respondent continued to trade and brought back the employees who were willing to accept the EWSS during the Covid-19 crisis. The Respondent likewise did not re-employ the Complainant even though it was clear that had he given the thumbs up on ‘WhatsApp’ in late March 2020, he would have been re-employed and there would be no dispute. When the Complainant re-considered his position and contacted the Managing Director, the Respondent should then have re-hired the Complainant.

The Adjudication Officer found that the Complainant had no option under the circumstances but to honestly believe that he had been dismissed and seek other work, which he did so in July 2020. Therefore, the Adjudication officer found that the Respondent acted unfairly towards the Complainant and ordered that the Respondent pay the Complainant compensation of €1,000 as settlement of this dispute.

Also of note was that this case has an associated complaint under section 23 of the Industrial Relations (Amendment) Act 2015, with a different Adjudication number, which was adjourned due to an expected serious conflict of evidence. This latter case was to be re-scheduled to allow for legislation to be passed for the administration of an oath. The Workplace Relations (Miscellaneous Provisions) Act 2021 was signed into law and took effect from the 29th July.
https://www.workplacerelations.ie/en/cases/2021/july/adj-00028911.html