ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000295

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

Date of Adjudication Hearing: 08/03/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, 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:

On return from holidays I contacted the respondent on my partner’s phone as mine was being repaired and was told to report on Monday to a site in Bandon where a shop was being refitted.

The shop owner queried me about materials for the refit and I sent an email to the respondent telling him what was required.

The respondent arrived at the site on Tuesday afternoon. He queried me as to why I had not got a particular door. There was also an issue about ceiling bars which I said were not suitable. The respondent started shouting at me and told me I was sacked. I gathered up my tools and left.

I texted him some days later about money that I believed that I was owed and the respondent accused me of walking off the job.

Respondent’s Submission and Presentation:

The complainant was employed on a temporary basis as it was understood that he would be returning to Australia. He was employed as a general worker / carpenter on a number of sites including Bandon, Skibereeen and Portlaoise.

The complainant had given wrong dates for his holiday and had left work on a Thursday.

When I inspected the site in Skibereen I found that there was work left unfinished even though the complainant had told me that there was no work to be done.

The complainant was not contactable for a period of time as he claimed his phone was broken.

When I arrived at the site in Bandon on Tuesday, 30 June 2015, I asked the complainant about a door that he was supposed to get. He told me that there was none available locally. I subsequently got one myself without any problem. There was also an issue with ceiling bars which the complainant said he couldn’t use. I told him we would have to sort things out and the complainant said that he would leave. I told him that he would have to work to the end of the week but he just walked out. I was able to fix the problem with the bars.

Because of all these issues the company has lost a contract with a major retail chain.

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:

The main issue to be decided is whether the complainant resigned or was dismissed and, if dismissed, whether that dismissal was unfair as per the provisions of the Unfair Dismissal Acts.

Legislation involved and requirements of legislation:

Section 6 (1) of the Unfair Dismissal Act 1977 states; “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there was substantial grounds justifying the dismissal.”

Section 6 (6) of the Act states; “In determining for the purpose of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

Decision:

The respondent stated that the employment was of a temporary nature yet admitted in evidence that no written contract of any sort had been issued to the complainant. In the absence of any documentation I determine that the respondent was in continuous employment with the respondent from 1 June 2013 to 30 June 2015.

There is a direct conflict of evidence in relation to what occurred in the store in Bandon on Tuesday, 30 June 2015. There was no corroborating evidence for either party at the hearing. The respondent stated that he believed that the complainant knew that the job in Bandon would finish within the week and had decided to leave anyway. For his part the complainant said that in the past when work on one particular site had finished he would be allocated work elsewhere including the respondents own house. Even if the circumstances were those as described by the respondent it would have been wise to allow for a “cooling off period” to give the complainant time to reconsider his position.

On balance, however, I am inclined to give more weight to the evidence of the complainant that he was dismissed rather than that he resigned. The relevant part of Section 6(4) referred to above states “Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one of the following:

1. the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

2. The conduct of the employee.”

The respondent gave evidence of dissatisfaction regarding the work performance of the complainant at the Skibereen site and the fact that the complainant was out of contact due to ongoing phone issues. The complainant had, however, made contact with the respondent on his return from holidays and had been directed to the Bandon site. The respondent had not advised the complainant either then or at any time prior to his arrival in Bandon on the Tuesday that these were issues which required to be addressed. The respondent therefore cannot rely on the protection afforded by Section 6(4) of the Act.

I find therefore that the respondent dismissed the complainant and that the dismissal was unfair. The complainant obtained similar employment within a period of seven weeks. I therefore deem compensation to be the most appropriate form of redress and award the complainant the sum of €5,250 in this regard.

Dated:   8/4/2016