ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002280

Complaints for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00003085-001	08/03/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00003085-002	08/03/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00003085-003	08/03/2016

Date of Adjudication Hearing: 31/05/2016

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 8(1B) of the Unfair Dismissals Act, 1977, section 7 of the Terms of Employment (Information) Act, 1994 and Section 11 of the Minimum Notice & Terms of Employment Act, 1973 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.

Complainant’s Submission and Presentation:

The complainant submitted 3 complaints under the following legislation:

(1) The Unfair Dismissals Act 1977, (2) The Terms of Employment (Information) Act 1994 and (3) The Minimum Notice and Terms of Employment Act 1973. The narrative of his complaints is as follows:

(1) On the 4th of February 2016 the Complainant was working off site when he pulled a muscle in his back while lifting a machine out of a work vehicle. Due to this injury he asked his colleague to finish the job of rolling the tar. The Complainant returned to the Respondent's business yard at 3.30 p.m. and proceeded to leave to attend the doctor. The Respondent confronted him in relation to the fact that another employee completed the task of rolling the tar and stated "if you ever do that again you are dismissed." The Respondent approached the Complainant in his car and pulling open the door of the vehicle and told the Complainant he was dismissed.

(2) The Complainant commenced employment with the Respondent in September 2007. The Complainant did not receive a statement of his Terms and Conditions of Employment from the Respondent.

(2) On the 4th of February 2016 the Complainant was working off site when he pulled a muscle in his back while lifting a machine out of a work vehicle. Due to this injury he asked his colleague to finish the job of rolling the tar. The Complainant returned to the Respondent's business yard at 3.30 p.m. and proceeded to leave to attend the doctor. The Respondent confronted him in relation to the fact that another employee completed the task of rolling the tar and stated "if you ever do that again you are dismissed." The Respondent approached the Complainant in his car and pulling open the door of the vehicle and told the Complainant he was dismissed. The Complainant did not receive the any notice of the termination of his employment.

The complainant also gave evidence at the hearing of the respondent telling him he was dismissed, and the outstanding wages paid into his bank account on 18^th February 2016. Further, he contended that the week following his termination, he observed a new member of staff working for the respondent.

Respondent’s Submission and Presentation

The respondent contends that the complainant was not dismissed, but that he (the complainant) had told the respondent to “shove his job”. There was an altercation in February when the complainant refused to do the work he was instructed to do. Evidence was submitted that on the last day of work of the complainant, a violent altercation was overheard by mobile phone in which it is alleged the complainant while being reprimanded by the respondent told the respondent “you can shove your f……. job” and slammed his car door on the respondent, causing injury. It is submitted that the complainant at no stage was dismissed and that his position is still there. The complainant took exception to the respondent reprimanding him on the day in question and the abuse levied was witnessed. The respondent submitted a letter dated 25^th February 2016, addressed to the complainant in which the respondent informed him that his behaviour was unacceptable and that any future unacceptable behaviour would result in formal disciplinary procedures.

The respondent in reply to complaint (2) regarding terms of employment, submits that he gave written terms to the complainant in 2007 but the complainant did not return a copy.

Decision:

Unfair Dismissals Act 1977:

The definition of dismissal in Section 1 of the Act is:

“ ”dismissal” in relation to an employee means – (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee”.

In this case, dismissal was disputed by the respondent. Having examined the evidence and submissions, I find as follows: There was undoubtedly a fairly violent argument between the parties on the 4^th February 2016, when the complainant and respondent got into an argument about his not carrying out work. The question arises that if an employee resigns in the heat of the moment, is it reasonable for the respondent to effectively terminate the employment? Or should some effort be made by the employer to resolve the differences and dispute. I note the letter dated 25^th February 2016 from the respondent to the complainant. However I find that the termination of the complainant’s employment was carried out by the final payment of wages into his bank account on 18^th February 2016, and I note the employment of another employee shortly after the 4^th February 2016. These findings render the letter dated 25^th February 2016 somewhat redundant.

In all of the circumstances I find that the complainant was unfairly dismissed. I consider that by his behaviour, the complainant contributed somewhat to the situation. I find that compensation is the appropriate redress and I require the respondent to pay to the complainant the sum of €7,400.

Terms of Employment (Information) Act 1994

Section 3 of the Act provides that an employer shall furnish an employee with written terms of conditions of employment within two months of commencement of employment.

I accept the complainant’s evidence that no written terms of employment were given to him. In accordance with Section 7 of the Act, I declare his complaint to be well founded and I require the respondent to pay to the complainant the sum of €1,200 compensation.

Minimum notice and terms of employment Act 1973

In accordance with Section 4 of the Act, four weeks notice should have been given to the complainant. I require the respondent to pay to the complainant the sum of €2,400.

Dated: 19^th October 2016