ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001876
Complaint(s)/Dispute(s) 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-00002577-001 | 13/02/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00002577-002 | 13/02/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00002577-003 | 13/02/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00002577-004 | 13/02/2016 |
Date of Adjudication Hearing: 28/06/2016
Workplace Relations Commission Adjudication Officer: Emile Daly
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:
I was used as a director of the company last year and as I realised the position wasn't the promotion I initially understood it to be I realised I was only a scapegoat director. I resigned as director in June 2015 having lost wages due to the arguments held to take me off as director. Part of this agreement was that I was to be taken off the company bank account as director and would no longer be required to sign cheques. A few months went by and no effort was made to take me off the company and I was forced to continue signing company cheques. An argument was had on the 19th January 2016 that I again wanted to be taken off the company bank as director. I again lost wages due to this and was told I was sacked only for it to be made out I wasn't sacked 2 days later. Now in February 2016 I was told again to sign cheques as a signatory only. I asked for confirmation from the bank that I was taken off as director and then I would sign the cheques as a signee only. I was told thats It im sacked and to get the F out of the office. I asked for it in writing and for my p45 as in the past year I have unofficially been sacked 4 times all of which I can confirm with my work journal and bank account where I am down the wages and or holiday hours. I was then requested to accept a cheque stating it was my full and final settlement which had less than half of the money owed to me as I should be entitled to wages in lieu of notice and Holiday hours. |
I was instantly dismissed on the 11th of February 2016 with no notice paid. My claim for minimum notice is brought under the Payment of Wages Act. |
I was instantly dismissed on the 11th of February 2015, I was paid for 37.5 hours which in a letter addressing my termination is supposed to include 16.5 hours holiday pay. I was due 30 hours for the week work I had completed plus the 16.5 hours holidays. I received my pay for that week 2 days late and it was missing 9.5 hours of my holiday pay. |
I received my weekly pay on Friday afternoon when it should have been due in the account for Thursday morning. As the accounts director didn't put my wages in first thing in the morning I was sacked by 10:15 and I was told I would not be getting paid. In the end they tried to settle with me by offering me a cheque for €349.08 which would be pay for 37.5 hours. On the cheque It stated it was full and final settlement so I could not accept it as I was owed more than that. I ripped the cheque up to void the cheque. They tried to con me by making me take that cheque. I asked for a cheque with the money I was actually due but they refuse to pay my full holidays or my wages in lieu of notice so they transferred the €349.08 by electronic transfer into my bank account. I am still owed 9.5 hours holiday pay and 60 hours in lieu of notice. |
Respondent’s Submission and Presentation:
The Respondent is a security company
The Respondent accepts that the Complainant had issues in 2015 about remaining as a director on the company books and he was removed as such, however, he still remained as a cheque signatory.
The Complainant was the son of PG, the managing director of the company. PG had allowed the Complainant to reduce his work hours, he increased his pay and he provided rent free accommodation in an apartment within the same building that housed the company office. In this way he afforded his son good terms and conditions of employment and very flexible hours of work.
On Thursday February 11 the Complainant was in the office with the office manager and they were preparing wage cheques for the staff to the paid the following day. The complainant refused to sign the cheques saying that he wanted to be removed as a signatory to the cheques and that he had said this before.
As he would not sign the cheques, PG came in and told the Complainant to sign the cheques. He accepted that when the Complainant refused at which point PG told the Complainant to F*** Off. When he said this, he did not mean for the employment to end, but rather that he was telling him to get out of the office because matters had become heated.
The Complainant came in a while later and asked for his P45 and monies that he was owed. PG accepts that he told the office manager to pay what was owed to him. However, PG took this as being a resignation, rather than a dismissal.
The Respondent could not explain why a letter issued by the company on 11 March 2016 stated that the Complainant had been dismissed.
A letter of resignation, tendered by the Complainant was left on the office desk and was discovered sometime after the argument occurred
The Respondent submits that the refusal by the Complainant to sign wage cheques on the day before pay day was an unreasonable refusal to comply with a standard instruction.
The Respondent submits that argument on the 11 February was manufactured by the Complainant to force the Respondent into dismissing him
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.
As dismissal is in dispute, in this case, the onus is upon the Complainant to prove the fact of the dismissal.
There is a conflict of evidence in the case. Bearing in mind that the breakdown in trust between the Complainant and Respondent arises from a breakdown in their filial relationship as well as their employment relationship, this case is one that is difficult to reconcile which version of events occurred.
There is documentary evidence to support the view that the Complainant intended to resign his position (a letter of resignation written before the argument but left on the office desk after the argument) and further documentary evidence that the Respondent accepts that he was dismissed (letter dated March 2016). Both these pieces of evidence run counter to the positions that each party held at the hearing. The Complainant accepts that he intended resigning, but that the Respondent by their dismissal, on 11 February , pipped him to the post.
I am satisfied that the Complainant was employed by the Respondent. I am satisfied that the Complainant became unhappy with being a director in name only and later became unhappy that he was kept on as a cheque signatory for company cheques. The reason for this unhappiness is not so clear and did not become clear at the hearing.
While I am satisfied that this specific complaint, about him being a cheque signatory was something that he was unhappy about, there was no indication that he would “down tools” in this capacity on the day before pay day, when the staff were waiting to be paid their wages. I find that whilst he may have been unhappy with this continuing role that, to refuse to sign cheques on that day to be unreasonable. However, is it a ground what justifies a summary dismissal? I think not.
The Complainant intended leaving the job, he had already accepted another post elsewhere. It was not within the knowledge of the Respondent, that he intended changing jobs a week or so later.
So did a dismissal occur?
I accept that the words F*** Off were used however I further accept that given the fraught relationship between father and son at that stage, and that, given the context, that those words might not of themselves be evidence that the Respondent was dismissing the Complainant. If those were used in a different case in a different context, I accept that it might be reasonable to consider that this meant a dismissal, especially as it was followed by an acceptance to “pay him what he is owed” minutes later. The Respondent did tell him to leave, in a manner of speaking and even if one accepts that this is ambiguous as to whether it means leave the job or leave the office, when he returned and looked for his P45 and monies owed, there was no attempt to clarify that the Respondent was not dismissing him.
Furthermore the Complainant produced a letter issued by the company in March 2016 in which it states that “the Complainant was dismissed” and in the absence of an explanation for this, for which there was none, I cannot accept that the Respondent did not intend to dismiss him during the heated argument on 11 February. Or more specifically the test is, was it reasonable for the Complainant to believe that he was being dismissed by the words and conduct of the Respondent. The fact that they say that a resignation latter was tendered by the Complainant, which they found later, is irrelevant because the test I must apply is whether the conduct amounted to a dismissal at the time, not how it might have been construed later, with knowledge other than it had at the time.
Therefore I find that a dismissal did occur on the 11 February but that the conduct of the Complainant contributed to the dismissal. I am of the view that the Complainant was happy to “grandstand” his position about not signing company cheques, the reason for which was never made clear, because he knew that he would be leaving the employment anyway a week later.
I have sympathy for the Respondent particularly in light of the fact that PG had provided the Complainant with free accommodation for a year and was flexible about his working hours, none of which the Complainant seemed to place any value upon. Clearly this would not have arisen in a usual employer/ employee relationship and only occurred because the Complainant was his son. But as is sometimes the case, gifts from parents are not seen for the objective value that they hold.
It is a regrettable case in many ways and would have benefited from the opportunity to mediate, but this opportunity was either not availed of or was not successful.
My obligation is to find whether a dismissal occurred and I find that the words and conduct used on 11 February 2016 were capable of meaning that the Complainant was dismissed and that the claim succeeds.
In terms of compensation I make my award as follows:
Under the Unfair Dismissal Act I award €120. His full loss was four days (as he accepts that he intended leaving on 15th February). The full value of four days is €240 and I amend the amount to €120 to take account of his contributory conduct.
Under the Organisation of Working Time Act I award 9.5 hours, which has a value of €120 and I award this amount in full.
Under the claim for minimum notice, taken under the Payment of Wages Act, the Complainant is entitled to two weeks’ notice, however as he worked some of this period, the amount is again limited. I award one week and one day, which would bring him up to the date that he commenced his new job. This award is €380.
Under the second claim for payment of wages, I find that the Complainant was already discharged his wages for work done or in the alternative, that this loss is taken account of within the unfair dismissal claim. I find that this head of claim fails.
The total award is €620.00
Dated: 14th September 2016