ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000058

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 01/02/2016

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The claimant was employed as an engineer with the respondent .He commenced employment on the 1^st.July 2003 and submitted that he was unfairly dismissed on the 7^th.August 2015.The claimant’s representative summarised the claimant’s employment history and charted his progression from apprentice to Engineer.It was submitted that working relationships began to deteriorate in 2011/2012 when the claimant believed that he was being treated less favourably than his colleagues vis a vis on call and work complexity.The claimant approached the other Company Director Mr.EN about his grievances – he believed no progress could be made and ultimately resigned.He was approached by the other Director (Mr.S)2 weeks later and he offered to redeploy him into the shop where he would deal with deliveries and refurbishment of fridges.He accepted the offer even though it involved a drop in salary.

The claimant submitted that he was dismissed over the phone by Mr.S on the 31^st.July over a row about his lunch break.The claimant and his colleagues were asked by Mr.S to attend a clients premises immediately – the claimant anticipated that the job would take 3-4 hours to complete  and that they would have to work late into the evening.The claimant had not eaten all day  and travelled through town to collect a sim card for his phone and grab a sandwich and a drink.The claimant received a call from Mr.S wondering why he was not on site .He explained that he was getting a sandwich and that there would be a delay in any event as some of the staff did not have the requisite safe pass certification to access the site.He submitted that Mr.S said to him that he “ was sick of Alan” 2 that it was the end of the road “ and “ that it wasn’t working out and that I don’t want you working”.The claimant asserted that he was under no illusion but that he had been dismissed.The claimant asseted that he attempted to contact Mr.S in an effort to resolve matters a few weeks later but he was advised that Mr.S was on leave – he asked Accounts for his P45 so that he could avail of Social Welfare.

It was submitted that the claimant had never been furnished with terms and conditions of employment or any grievance or disciplinary procedures.It was submitted that when the claimant eventually engaged with Mr.S. there was no effort made to dispel his understanding that he had been dismissed.When he asked for an explanation for his dismissal Mr.S replied that he had asked for his P45 and accordingly resigned .It was submitted that an offer of reemployment emerged when the parties engaged solicitors but the claimant did not accept that the offer was genuine.The claimant had not found alternative work and believed he should have been treated better after 12 years of loyal service.

Respondent’s Submission and Presentation:

The respondent denied that there had been a dismissal and submitted that there was never any intention on Mr.S’s part to dismiss the claimant.Mr.S set out his account of his exchanges with the claimant on the 31^st.July.He asserted that he had been operating under severe time constraints on the day , in a commercially sensitive situation  and when he asked the claimant to attend on site immediately , the claimant was very annoyed.When nobody showed up by lunchtime , he rang the claimant and asked him could he not attend on site and eat later.He submitted that the claimant responded that he had enough of  f……..  of this and enough of the respondent.He asserted that he replied if that is your position, that is your position.He contended that the claimant did not return the company van for a number of weeks and then asked for his P45.He said that claimant had previously resigned and the matter was subsequently resolved  and that it had never been his intention to dismiss the claimant.He had assisted him with his personal difficulties in the past and had helped him when he had mortgage problems.There was no formal dismissal  or any documentation recording a dismissal and submitted that it was only when the claimant sought his P45 that the employment was terminated.The claimant had been offered his job back on 3 occasions and declined all offers.It was submitted that what happened was regrettable but it could not be deemed to constitute a dismissal.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

[Section 8(1B) of the Unfair Dismissals Act, 1977 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.

Issues for Decision:

Did a dismissal take place?

If a dismissal took place , was the dismissal unfair?

Legislation involved and requirements of legislation:

Unfair Dismissals Acts 1977-2005

Decision:

I have reviewed the evidence presented at the hearing and noted the polarised accounts of the exchanges that took place between the claimant and Mr.S.In his direct evidence , Mr.S admitted saying to the claimant out of frustration “ I was sick of this - this is not working out” . In these circumstances I consider it was reasonable of the claimant to consider himself dismissed – I accept the claimant’s contention that in the absence of a contract or grievance or disciplinary procedures , he was at a considerable disadvantage in terms of challenging what happened.Notwithstanding this , I find the claimant contributed to the dismissal through his actions on the day and accordingly I am limiting the award of compensation to €17,500.

Dated:   8^th April 2016