EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Pawel Nowak -claimant
UD1527/2014
against
Jet Stone Limited -respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr J. Hennessy
Mr F. Dorgan
heard this claim at Carlow on 14th December 2015
Representation:
Claimant: Mr. Ben Cunningham B.L. instructed by Poe Kiely Hogan Lanigan,
Solicitors, 21 Patrick Street, Kilkenny
Respondent: Peninsula Business Services (Ireland) Limited, Unit 3
Ground Floor, Block S, East Point Business Park, Dublin 3
Summary of evidence:
The fact of dismissal was in dispute between the parties.
A Tribunal appointed translator was present at the hearing. The claimant was employed as a stonemason by the respondent since 2010.
In late April 2014, the claimant’s pet dog became ill and sadly died. The claimant informed the Managing Director by text message that he was going to be absent from work for two days while he brought the dog’s remains to be cremated in Belfast.
On the morning of the 30th April 2014, the claimant attended for work. It was the claimant’s evidence that there was no light in the premises where he was due to carry out his duties and that he reported this to both the Managing Director and the Transport Manager. Both individuals said they would arrange for the replacement of the light bulbs and instructed the claimant to return to work.
It was the claimant’s evidence that the Managing Director later approached the claimant in the yard and instructed him to go home. The claimant understood this to mean that he was being dismissed from his employment and refuted under cross-examination that he was told to leave for that day only. It was the claimant’s evidence that he later returned to the office to enquire about a P45.
During cross-examination it was put to the claimant that only one halogen bulb was not working but that the other lights were in order and that another employee was working without issue. The claimant replied that the other lights were dirty, too high and not directly above his workstation. He also refuted that there was another employee working in the workshop that day.
The witnesses for the company refuted the claimant’s account of the morning of the 30th April 2014. The Managing Director approached the claimant who had raised his tone in the yard. The Managing Director smelt alcohol from the claimant and enquired if he had been drinking. As the claimant moved about there was a clinking noise from a bag he was carrying. Given the smell of alcohol, the Managing Director requested to look inside the claimant’s bag but the claimant refused.
The claimant recalled the Managing Director raising a concern about alcohol and operating machinery but he refuted that the Managing Director had requested to look inside the bag he was carrying. He believed the Managing Director’s concern regarding alcohol arose when he saw the claimant’s girlfriend sitting intoxicated in his car. She had intended to wait in the car until the claimant finished work at 5pm.
It was the Managing Director’s evidence that he told the claimant he could not allow him to operate machinery that day, as it would be too dangerous. He told the claimant to go home for that day and he was satisfied that the claimant understood it was for one day only. However, the claimant said that he wanted his P45. Before he could make travel arrangements to bring the claimant home, the claimant drove away. He subsequently received a text message form the claimant dated the 1st May 2014 enquiring as to when his P45 would issue. He understood it to mean that the claimant had no intention of returning to the employment.
A further text message was received from the claimant on the 6th May 2014. It enquired if he had been replaced in his position or if the respondent wanted him back. The Managing Director stated that he was not convinced by this message and that in any event the claimant had already been replaced by a temporary employee. The claimant gave evidence that he sent this message due to financial problems. He did not receive a response from the company.
The Transport Manager of the company gave evidence that he could smell alcohol emanating from the claimant on the 30th April 2014 and he reported this to the Managing Director. He recalled that they discussed how they would arrange for the claimant to be brought home. He also refuted the claimant’s evidence that the premises were not properly lit. The halogen bulb was the only bulb missing but this did not prevent the work from being carried out as had been done on both days the claimant was absent.
In reply to questions from the Tribunal, the Transport Manager stated that he felt the claimant was angry at being asked to go home and that was the reason he asked for his P45 but he thought the claimant would return to work the following day.
The claimant gave evidence of his financial loss and his efforts to mitigate that loss which entailed applying for other stone mason positions.
Determination
There was a complete conflict in evidence before the Tribunal as to what occurred on the 30th April 2014. The Claimant’s position is that he was dismissed and the Respondent’s case is that the Claimant quit his employment when asked to leave work for the 30th April 2014, only in circumstances where the Respondent’s Managing Director did not consider him fit to operate work machinery on the day due to possible intoxication.
The Tribunal is satisfied on balance that what was central to whatever occurred on the 30th April 2014 was an issue around the Claimant’s fitness to work due to possible alcohol consumption.
The Tribunal believes that the Claimant understood himself to be dismissed and his request for a P45 was a natural consequence of this belief. It was the obligation of the Respondent, in all of the circumstances, to clearly communicate the position to the Claimant on the 30th April or on the following day when a text requesting the P45 again was received. If it was the Respondent’s intention that the Claimant would simply go home for the day of the 30th April 2014 this should have been communicated in clear terms to the Claimant. This was not done and the Respondent must accept responsibility for any confusion around this issue.
Even if the Respondent believed that the Claimant had tendered his resignation on the 30th April 2014 he had an obligation to ensure that there was no confusion around the issue and that any such resignation was fully informed, voluntary and intended to be relied upon by the Claimant. It is inexplicable to the Tribunal that the Respondent would, even if it believed that a resignation had been tendered on the 30th April 2014, have so readily accepted the position given the circumstances that prevailed on the 30th April and the preceding days. No effort was made after the 30th April by the Respondent to ensure that it was dealing with a resignation that had been voluntarily given. The failure to give consideration to the Claimant’s text of the 6th May whereby he sought to be considered for a return to the Respondent’s employment is instructive.
The Tribunal determines that the Claimant was unfairly dismissed. In measuring the award of compensation, the Tribunal has had due regard to the somewhat inadequate efforts of the Claimant to mitigate his losses particularly when it became apparent to him that there were no stonemason positions available.
The Tribunal awards the Claimant the sum of €12,500 in respect of his unfair dismissal
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)