Man who claimed mileage during lockdown wins unfair dismissal claim

A tile shop employee whose boss told him "I'm sure you have your unfair dismissals case mapped out in your head – good luck with it", has won his case for unfair dismissal at the Workplace Relations Commission.

Anthony Kennedy lodged complaints against Total Tiles Ltd, trading as Italian Tile and Stone, under both the Unfair Dismissals Act and the Minimum Notice and Terms of Employment Act.

In a submission to an adjudication hearing last November, the company said owner Luke Sweeney had decided to close its shops on 14th March, 2020, because of the pandemic, some two weeks before the Government ordered the closure of all non-essential retailers.

It kept all staff on full salaries and asked them to work from home.

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Mr Sweeney said that on April 5th, he sent out a document to all staff on “matters for consideration” for the company in the lockdown and coming out of lockdown.

Mr Kennedy wrote back the following day to say he would get back “as soon as he could” and wrote back again the day after that to say he was “experiencing broadband problems” and “would not be in a position to carry out any extra tasks allocated by the respondent”, Mr Sweeney said.

A subsequent exchange of emails between the two men dealt with “what employees should be doing working from home” and “the need to maintain normal workplace disciplines whilst working from home” with specific reference to “the need to adhere to rules in relation to breaks”, Mr Sweeney said.

On April 30th, Mr Sweeney wrote again to his staff and said he understood his email of April 5th had been “not universally well-received”.

“I’ve read and reread it several times and while it may not have been written in the most positive of tones, it did convey exactly what I wanted to say at the time. We are in a battle for our survival and the tone of the document is a reflection of the seriousness of the situation,” he wrote.

He said he wanted the business to survive and increase its market share and that this would require “radical changes”.

Mileage payment

On the same day of that email, Mr Kennedy submitted a request for his mileage payment, which was usually paid for him to attend work at the company’s shop in Swords, Co Dublin, which had been closed for the whole month, Mr Sweeney said.

Mr Sweeney said this mileage claim was “inconceivable” and told Mr Kennedy to “cop on”.

Mr Kennedy accused his employer of giving him “a shove towards the door”.

“If you want me to leave the company then you should say so and fire me,” he told Mr Sweeney.

“If and when I want to fire you I will do so. I’m sure you have your unfair dismissals case mapped out in your head if I do – good luck with it,” Mr Sweeney replied.

The following Tuesday, May 5th, Mr Sweeney told the complainant he needed him to “commit to the company’s plan” by the end of the day.

Mr Kennedy said he had a “severe migraine” and that his boss’s emails were causing him stress before requesting a third party handle any dealings between them.

“I do not wish to be accused of making up stories or having my mental state questioned again,” he wrote.

“Perhaps my asking if you are bonkers for expecting mileage when you have not made any trips is your idea of me questioning your mental state. If it is I think that’s more your problem than mine,” his employer wrote back.

‘Cherry pick’ comment

He told the complainant he was trying to “cherry pick” what parts of his job he wanted to do and that it amounted to “misconduct” – and that the matter would not be dealt with by a third party.

At 3.52pm that day, Mr Sweeney wrote again to say the 5pm deadline “was made perfectly clear”.

He told Mr Kennedy that as he had made “no commitment to sign up to the company’s ideas” and had made the mileage claim he had “no choice but to terminate your employment”.

Mr Sweeney said Mr Kennedy was the first member of staff he had dismissed in the firm’s 20 years of trading and that it was one of the “hardest decisions” he ever had to make.

Mr Kennedy said he was told on the afternoon of Friday, May 1st, 2020, that “if he did not agree to the changes by close of business the next working day that his employment would be terminated”.

He said he got neither a working notice period or pay in lieu of notice and that his usual weekly payment was withheld that Friday.

He added that he did not want his employment to end.

In a decision published on Thursday, adjudicating officer Jim Dolan found there were "no procedures followed at all" in Mr Kennedy's dismissal, noting there had been no disciplinary interview, no right of representation and no opportunity to appeal.

He upheld the complaint of unfair dismissal, but said Mr Kennedy had presented no evidence to suggest any efforts to mitigate his loss.

He awarded four weeks’ pay in compensation for the unfair dismissal: a sum of €2,258.76

Mr Dolan also found Mr Kennedy was also due two weeks’ pay in lieu of notice and ordered the company to pay him a further €1,129 for this.