Unfair Dismissal – Employee Contributed 100% to their own dismissal

In the case of A School Cleaner v A Second Level School ADJ00023779 the employee, a school cleaner, alleged that he was unfairly dismissed from his employment.BackgroundThe employee outlined that every summer he would be effectively laid off by the School and would receive correspondence to present to the Department of Social Welfare to support a claim for payment over the Holiday period. He expected to return to work on 29th August 2019 however on 11th August, he received a letter from the School Principal which referred to “efforts to contact him” and as these had allegedly been unsuccessful, removing him from his employment. The correspondence was, in effect, a Dismissal letter. The employee’s name was removed from the School Website.The school outlined that it was well known to the employee that a deep clean of the school took place in every August prior to re-opening. This had been the case for the entire period of the employee’s time with the School. This Deep Clean was normally organised by the School Caretaker, who would contact the Cleaning Staff in early August to make the necessary arrangements. The school outlined that numerous efforts were made to contact the employee by the Caretaker, the School Secretary and the Principal herself. Phone calls were not returned despite assurances by the employee’s wife.By the 11th August and, not having heard from the employee, the school made the assumption that the employee was not interested in returning to school and a letter was sent to the employee outlining that another cleaner would be employed for the academic year. After receiving notification of the employee’s claim, the school wrote a lengthy letter to the employee expressing surprise that the employee did not contact them in respect of his job and that“Your part time cleaning position is indeed still available to you here in School XX and we look forward to seeing you on Monday next the 23Rd September”.The employee did not attend for work on the 23rd September and no reply was received from the employee other than a request that no further direct contact be made to him by the Principal and that all additional correspondence was to go to the Workplace Relations Commission.The school accepted that they had not fully complied with SI 146 of 2000 -Statutory Code of Practice on Grievance and Disciplinary Procedures but that any deficiencies in the school’s case were more than balanced by the employee’s refusal to communicate.DecisionThe Workplace Relations Commission determined that “……it would be reasonable to conclude that this was a Dismissal letter.” in respect of the letter dated 18th August.  It noted that “Procedurally the Employer was at fault”.It also noted however that “……..the Employee clearly had refused to engage in all Contacts re the Annual clean, a Custom and Practice of some 8 years standing and had latter completely refused to engage when the main cleaning job was re-offered to him on the 23rd September. The complete reliance on the Social Welfare correspondence and the date of the 29th August as the resumption date was unnecessarily rigid by the Complainant in view of the long established Custom and Practice regarding the annual August school clean”.The Adjudicator concluded that ” an Unfair Dismissal had taken place by letter of the 11th August 2019….but…..the actions of the employee prior to the 11th August and subsequently had contributed some 100% to his Dismissal. The complete absence of any contact with the Employer was most unusual and does not sit well with any Legal or Employment Tribunal precedents“.Employment Law Learning PointEmployers should be very careful prior to considering or assuming a dismissal of any employee. You must follow proper and fair procedure as outlined in the Code of Conduct on Grievance and Disciplinary Procedures (SI 146 of 2000). Employees must equally ensure that their conduct is reasonable and that they engage with all efforts by their employer to resolve any issues or difficulties.