An employee accused of sending an insubordinate email to nearly 40 staff at a construction firm has claimed that he was sacked without due process by the company.
The firm told the Workplace Relations Commission that the mass email amounted to "insubordination", "harassment" and was a "blatant disregard for the company's hierarchies".
The employee said he was told to apologise and accept a demotion with a threat: "If I didn’t sign the letters, I’d be fired". The company denied dismissal and insists he quit.
The conflicting accounts were advanced in pleadings to the WRC yesterday evening during a preliminary hearing into a series of employment rights complaints by Brendan Burke against Bretland Construction Ltd, where he was a senior project manager earning €80,000 a year.
The tribunal was considering which side bore the burden of proof under the Unfair Dismissals Act 1977, as there was a dispute between the parties about whether or not Mr Burke had been dismissed or resigned on 15 November last year – the day after the alleged mass email.
Mr Burke contends he is entitled to recover €20,000 for two years’ loss of earnings after taking a pay cut of €10,000 when he started a new job just two days later. He has also referred complaints about alleged deductions from his pay.
He told the tribunal that he was directed to attend a meeting at the company’s offices on Wednesday 15 November 2023 with an email that gave "no context" and simply told him the time and place.
Upon attending the meeting with senior members of the company’s management, Mr Burke said was informed at that stage that a disciplinary process was going ahead. He was then given two letters and asked for time to consider them, he said.
"I was told if I leave the room without signing the letters, I’d be fired," Mr Burke said.
Mr Burke said he told the men that he would leave as it seemed there was "nothing more to discuss". He said that as he stood up, a senior officer of the company shouted: "You’re fired."
"As far as I’m concerned, my employment ended that day," Mr Burke said.
The company’s representative, Jerry Lane of human resources consultancy Peninsula, said there was a "direct conflict of evidence" and that multiple company witnesses were prepared to testify in rebuttal.
He told the tribunal that Mr Burke had committed "an act of major and gross misconduct" the day before that meeting with a mass email to nearly 40 staff at Bretland.
Mr Lane said Mr Burke was "asked" to sign a letter of apology and accept a demotion without loss of pay. "He declines, and walks out the door," Mr Lane told the tribunal.
"Isn’t that a finding of misconduct within 24 hours against him, and a decision to demote him and make him sign an apology?" asked WRC adjudicator Aideen Collard.
"The position of Bretland is that logic dictates that is exactly what happens, because at no stage does [Mr Burke] say 'I didn’t send that email,’" Mr Lane said.
He added that Mr Burke had been given disciplinary warnings in the past.
Mr Burke told the tribunal that the company had been unable to produce any record of any such warnings in response to his legal demands for personal data. "I can only assume they don’t exist," Mr Burke said.
He added that his record requests had turned up a document written by Mr Burke’s former superior, whom he was accused of harassing in the email of 14 November 2023, referring to allegations that Mr Burke had bullied a junior colleague.
Mr Burke said that since receiving the document he had spoken to the former junior colleague, who had told him it was "a complete fabrication of the facts". The former colleague was prepared to testify to the tribunal, he added.
"I would like to see when it was typed up, because it was never issued to me and never discussed," Mr Burke said.
"Are you suggesting that it’s been retrospectively written?" Ms Collard asked.
"Yes," Mr Burke said.
Concluding the preliminary hearing, the adjudicator said: "It sounds like everything’s going to be an issue."
"I think it would be in everyone’s best interests not to have this all set out in a written decision," Ms Collard said, adding: "I do encourage people to settle."
She suggested that it would be beneficial if Mr Burke, who had been self-represented, was to consider consulting with a solicitor on the matter and said she would look for two days to hear the case in September.
She gave directions for the production of various documents by the respondent and the complainant. The press was directed not to name any parties other than Mr Burke and Bretland Construction Ltd in connection with the proceedings at this stage.
