UDD168

This appeal was conjoined with a number of other appeals involving the same parties under:

• •the Organisation of Working Time Act 1997 which appeal was withdrawn before hearing by the Respondent;

  •Payment of Wages Act 1991 in which the Court issued Determination PWD1610;

  •the Terms of Employment (Information) Act 1994 in which the Court issued Determination TED1612;

  •the Industrial Relations Act 1969 in which the Court issued Recommendation LCR21218.

The Parties’ Positions

As dismissal was in dispute, the Complainant went into evidence first.

The Complainant gave evidence of events that occurred at his place of work on Saturday 19 July 2014. On that date, as he arrived for work, he was told by a colleague, JP, that he was required to work alongside JP at JP’s normal workstation (known as U10) for a number of hours that day. JP had been directed by the site supervisor, RH, to inform the Complainant of this temporary change to his workplace. The Complainant told the Court that he had no prior experience of working at station U10 and that he refused to work there on the Saturday in question because he had witnessed a serious ‘near miss’ there some days previously when a pre-cast concrete wall weighing one tonne that was suspended in the air almost fell from the clamp holding it up. It was the Complainant’s evidence that RH overheard him telling JP that he wouldn’t work at the workstation. RH then came down from an upstairs office, according to the Complainant, and shouted at him, four times, “Go home”. The Complainant did go home as directed by RH. He says he came to work at the usual time, 7.00 a.m., the following Monday morning and was immediately sent up to the administration offices by RH. The Complainant says he waited there until a member of management, PJ, arrived. PJ held the door open for him and the Complainant’s recollection is that he asked PJ “What’s my story?”, to which PJ is alleged to have replied “Goodbye”. The Complainant took this to mean that he had been dismissed by PJ.

The Complainant wrote to the Respondent on 23 July 2014 (copy letter exhibited at the hearing) to inform the company that he wished to appeal the dismissal that had occurred on Monday 21 July. The Respondent replied on 5 August 2014 denying that any dismissal had occurred and advising that the Complainant had not been dismissed but had resigned on the previous Saturday. The letter also stated that the Respondent was happy to meet with the Complainant to discuss his resignation.

On cross-examination, the Complainant accepted that he had previously worked at station U10 some 2 to 3 times per year. He denied that at the time the events of July 2014 occurred that he had become disaffected with his work situation and that he wanted to return to his native Lithuania. It was specifically put to the Complainant that he had been the subject of an extensive number of verbal warnings since returning to work following a period of lay-off in 2012 and this was evidence of his growing unhappiness with his job as he had been an excellent and very flexible employee prior to the lay-off period. The Complainant denied that his attitude to work had changed.

The Court questioned the Complainant in relation to details of the alleged near miss that he said occurred on 12 July 2014 and enquired as to whether he had explained to his supervisor, RH, on 19 July that his reluctance to work at U10 on that morning arose from what he had seen the previous Saturday. The Complainant told the Court that he hadn’t been given the opportunity to do so because JP had told RH that the Complainant had refused to work and RH immediately told him to go home and was shouting loudly at him. There was no other supervisor or manager on site that Saturday morning that the Complainant could go to in order to explain his situation.

The Complainant also gave evidence in relation to his efforts to mitigate his loss following the termination of his employment and in relation to his current rate of remuneration.

RH and JP gave evidence on behalf of the Respondent.

RH stated that he had known the Complainant for some time and regarded him as an excellent worker who was competent to work at any of the Respondent’s workstations. He told the Court that the Complainant had had ‘on-the-job’ training at Station U10 alongside another experienced worker. He denied shouting at the Complainant on Saturday 19 July 2014. In his view, the Complainant walked away from him that day without giving any explanation as to why he wouldn’t do the work at Station U10. RH denied also that there had been any health and safety incident at Station U10 on Saturday 12 July 2014. In any event, the machine in question was designed in such a way that a pre-cast wall could not fall from the machine when suspended in the air. If such an accident did occur it would cause so much damage that the factory would be out of operation for up to a month, in his view. He also told the Court in detail about the in-built safety features in the machine at U10 including the laser beam facility which prevents the machinery from operating at all if there is a worker in the prohibited zone.

RH initially denied seeing the Complainant on the morning of Monday 21 July 2014. The Court pointed out to him that his evidence was inconsistent with a signed incident report that he had purportedly authored on 21 July 2014. The witness then changed his mind and accepted that he had spoken to the Complainant on Monday 21 July 2014 and had sent him to the office at 7.00 a.m. on that date. On cross-examination, RH told the Court that he had spoken to the managing director of the company on Saturday afternoon (19 July) about the incident that resulted in the Complainant leaving the site. He informed the Court that the managing director had instructed him that he was to send the Complainant to the office when he (the Complainant) arrived for work on the following Monday. The witness stated that he had been told afterwards by PJ that the Complainant had resigned his employment on Monday 21 July 2014.

JP, the Complainant’s fellow employee, also gave evidence on behalf of the Respondent. He told the Court that the Complainant had previously worked with him at U10 on at least 3 to 5 occasions. JP denied hearing RH shouting at the Complainant or telling him to go home on Saturday 19 July 2014. It was the witness’s opinion that the Complainant wasn’t happy with his work situation prior to the events of July 2014. The Complainant had previously worked at other sites operated by the Respondent and those sites were closer to his home. The Complainant’s travelling costs had increased significantly as a consequence of having been moved to the Respondent’s facility at Tramon.

Decision

In all the circumstances, and having considered the parties’ extensive written and oral submissions, along with the evidence tendered by the parties’ witnesses, the Court finds that the Complainant was unfairly and summarily dismissed on Monday 21 July 2014. The Court does not accept that the Complainant indicated either verbally or by his actions on Saturday 19 July that he intended to resign his employment. His attendance at the workplace at the normal starting time on the following Monday would have been entirely inconsistent with such an interpretation of the events of the preceding Saturday. It appears to the Court, that the most likely explanation of what transpired is that RH reported the events of that morning to the managing director when the latter called to the site on the Saturday afternoon; the managing director instructed RH to send the Complainant to the office first thing the following Monday morning for the purpose of effecting his dismissal.

The Rights Commissioner awarded reinstatement to the Complainant. Having regard to the period of time that has elapsed since the date of dismissal, the Court is of the view that reinstatement is no longer feasible or appropriate and instead directs the Respondent to pay the Complainant compensation of €42,000.00 in respect of his loss of earnings arising from his unfair dismissal.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
3rd May, 2016.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.