ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000931

Complaints for Resolution:

Venue: Tom Johnson House, Haddington Rd, Dublin 4

Date of Adjudication Hearing: 05/05/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Background

The Complainant was employed as a General Operative from 1^st January 1997 to 29^th September 2015. He worked full time and was paid €604.00 per week. He has claimed that he was unfairly dismissed and has sought compensation or redundancy. He also claimed minimum notice.

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 and under Section 39 of the Redundancy Payments Act, 1967 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Respondent’s Submission and Presentation

An incident occurred around 25^th September 2015 regarding the alleged use of company fuel. A manager acting upon information from a fuel delivery person asked the Complainant if he had used company fuel. The manager alleged that he was threatened by the Complainant and made a complaint to the Gardai. On 28^th September the manager told the Complainant that he had to go to Head Office about the incident on 25^th. The Complainant used expletives at him and said “I’ll see you in Court” and left the workplace. They wrote to the Complainant on 30^th September setting out their position that they had a right to investigate the incident. They listed the allegations made against him and requested a meeting to conduct the investigation. They advised him that he would not beb paid wages as he had not attended work. On 23^rd October the Respondent’s HR Adviser had a telephone call with the Complainant and asked to meet up with him to sort matters out. At that subsequent meeting the Complainant asked about redundancy. He was told that it was unlikely as there had been an incident; it was “handbags” stuff. The Complainant asked if the matter could be sorted out. On 13^th November they spoke again and discussed money. The Adviser indicated that there may be minimum notice and the Complainant undertook to talk to his solicitor. The Adviser understood that mediation would take place. This did not happen and a claim was presented to the Commission on 8^th December 2015.

There was no redundancy. There was no dismissal. He was told by the manager that he could not work at that site and to report to Head Office. The Respondent sought to investigate the incident. The Complainant refused to engage with them on this matter. They accept that there was an incident. He left the work and did not return despite request to do so. The Adviser did tell the Complainant that no Garda investigation would take place while they tried to sort things out. They denied offering him €5,400 but did indicate the possibility of paying minimum notice to him. He refused to engage with them. He left the employment so no dismissal took place.

Complainant’s Submission and Presentation:

Findings

I note that the origin of this dispute was whether the Complainant had taken company diesel or not without paying for it.

I note that the Complainant asserts that he bought the diesel from the local garage and got a hand written receipt from them.

I note that when questioned about the ownership of the diesel the Complainant failed to show the receipt despite being accused of not paying for it and using company fuel on 25^th September.

I note that the Complainant again failed to show this receipt on 28^th September.

I find that if he had the receipt and had he produced it to the Respondent then it would have cleared up this matter, but the Complainant inexplicably did not do so.

I note that the Complainant asserts that he was summarily dismissed at the job site on 25^th September and stated that he was told that there was no work for him.

Yet he also states that he was told to go the Head Office. Why would the Respondent dismiss him and then require him to go the Head Office.

I note that he refused to go to the Head Office.

The Respondent stated that he was not dismissed but they wanted the incident investigated and told him he couldn’t work at that site, but there were other sites and they wanted him to attend Head Office to investigate the matter.

On the balance of probability I find the Respondent’s evidence more convincing.

On the balance of probability I find that the Complainant was not dismissed and that the Respondent required him go to Head Office to participate in the investigation.

I note that the Respondent produced a letter allegedly written to the Complainant on 30^th September setting out the allegations made against him and stating their right to investigate the matter. They also stated in the letter that as he had not attended at work they would not pay him his wages because he refused to attend work.

I note that the Complainant stated that he did not receive the letter.

I note that the Respondent wrote to the Complainant on 2^nd October seeking a meeting to sort this matter out. This did not resolve the matter.

I find that the Complainant may have considered that he was dismissed on 28^th September but he was asked to go to Head Office.

They wrote to him on 30^th September and again on 2^nd October, In the meantime he did not attend work and did not engage with them regarding the investigation.

On the balance of probability I find that the Complainant walked off the job and therefore there was no dismissal.

Decision:

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

For the above stated reasons I have decided that there was no dismissal. The complaint was not well founded and that it fails.

2) Minimum Notice & Terms of Employment Act CA 1337-002

Complainant’s Submission and Presentation:

The Complainant stated that he was summarily dismissed and received no minimum notice.

Respondent’s Submission and Presentation

The Respondent stated that there was no dismissal. The Complainant walked off the job and did not return to work. Therefore no notice was due.

Findings

I refer to the decision in the Unfair Dismissals complaint as set out above.

I have found that there was no dismissal.

Therefore I find that there is not entitlement to minimum notice.

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 and under Section 11 of the Minimum Notice & Terms of Employment Act, 1973.

For the above stated reasons I have decided that there is no entitlement to minimum notice.

3) Redundancy Payments Acts CA 1337-003

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act and under Section 39 of the Redundancy Payments Act, 1967

I have decided that as no claim was presented in respect of the Redundancy Payments Acts no decision is required.

Dated:   12^th August 2016