ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004042
Complaint 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-00005814-001 | 12/07/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00005814-002 | 12/07/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00005814-003 | 12/07/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00005814-004 | 12/07/2016 |
Date of Adjudication Hearing: 21/11/2016
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977 and Section 27 Organisation of Working Time Act 1997 and Section 28 of the Safety, Health & Welfare at Work Act, 2005 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.
Complainant’s Submission and Presentation:
The respondent is a small family run business. Other than family members there are, about 6 staff. The complainant had a good working relationship with his boss, the owner/ director until November, 2015 when there was an argument over some non- work related issue. The complainant was of the opinion that his boss spoke to a fellow employee disrespectfully. He spoke to him about that and said that he felt an apology was in order. The argument was moved to outside the premises where the boss told the complainant “I am the boss and you should do what you are told.” There were a few other minor arguments between the parties. It is for that reason that the complainant felt that the relationship was deteriorating. On the 18th May, 2016 the owner/director asked the complainant if he would go into the spraying room and spray some timber. He went into the room, put on his mask and started spraying. It soon became obvious that the extractor fans were not working properly. The room filled up with paint spray. The complainant was covered in paint and his eyes were stinging. He called the owner director’s brother into the room to witness the haze of paint. He left the room, cleaned out the spray gun and returned it. He went up to his boss and told him he wasn’t going to do any more spraying because it was unsafe. He was instructed to “ go back and get it done”. He said “No”. He was then told “ get the fuck over there and get it fucking done”. The complainant refused. He was then told “I am the boss, now you fuck off home”. As he was leaving he shouted back at his boss “Sure is it any wonder xxx left”. He bumped into the brother of the owner/director, who told him to ignore the boss and to go back and do his work. He decided to leave. He made an appointment with his GP as his eyes were very sore. His GP told him to report the matter to the Health & Safety Authority. He did that. Nobody from the respondent company contacted him again after that. His solicitor wrote an initiating letter the following month. In that letter he requested the complainant’s P45. It was not sent out. To date the complainant has not received it. He has made some attempts to get employment since he left the respondent company but not having his P45 has prevented him getting permanent full time employment. He started a part time job on the 11th September, 2016. He is paid €200.00 gross for two days a week. He is also in receipt of social welfare. When his employment ceased he was due two weeks holiday pay and his Minimum Notice which he has not received to date. |
|
|
|
Respondent’s Submission and Presentation:
The owner/director stated that on the 18th May, 2016 he did request the complainant to carry out some spraying. He had spoken to him about it two days earlier and suggested that the complainant might like it. The complainant had sprayed before but for friends and family, not for the company. Because the complainant expressed an interest in doing the work the owner/ director asked him to spray some timber for him. He showed him into the room at 1.50pm. At 2.05pm the complainant came up the stairs and said “you may get someone else to do that spraying, I’m not doing it “ He said “ go back over to the factory and just continue with your job” The complainant responded by saying “ I am out of here, XXX do up my P45”. He thought that he would come back once he had calmed down but he didn’t’. He didn’t want to issue the p45 because he hoped he would change his mind and come back to work. He stated that the complainant’s job is still there for him and his position hasn’t be replaced. The conversation between the owner/ director and the complainant was overheard by two other staff members. (albeit they are both related to the owner/director). Both witnesses are adamant that the owner/director did not tell the complainant to “ fuck off home” or anything like that. They both stated that it was the complainant who said he was leaving and requested one of them to do up his P45.
The respondent keeps all of the safety equipment in the spraying room. There are goggles, masks, overalls in the drawer where the complainant got his mask. The complainant was given his own safety gear when he commenced his employment.
A health and safety audit was carried out on the spraying room in January, 2016 and no issues were reported. It received a ‘Risk level” rating of ‘3’ and New ‘Risk level’ rating of “L” (low).
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.
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.
Section 11 of the Minimum Notice & Terms of Employment Act, 1973 and Section 28 of the Safety, Health & Welfare at Work Act, 2005 and Section 27 Organisation of Working Time Act, 1997requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
The fact of the dismissal is in dispute between the parties. The complainant stated that the owner director told him to ‘fuck off home” and that he considered that to mean he was being fired. He felt that this happened because he had raised a complaint about the safety of the spraying room. He did not lodge a formal grievance in relation to the matter. Other than him saying in passing that it was dangerous he didn’t lodge any other complaint under the grievance procedure. The owner/director’s brother told him to ignore him and go back to work. The complainant was annoyed and left and did not return. The owner/director’s evidence was corroborated by two other staff members. They are all adamant that it was the complainant who stated that he was “out of here” and that the owner /director did not tell him to “fuck off home”.
The complainant expressed concerns about the safety of the spraying room. However the respondent has safety audits carried out regularly on various parts of the factory, The audit on the spraying room was carried out in December, 2015. It received a ‘L” rating indicating that there was a low risk attached.
On the balance of probabilities I prefer the respondent’s evidence and find that the complainant resigned his position on the misapprehension that the spraying room was unsafe.
The complainant had outstanding holiday pay due to him at the time of his resignation. He calculated the amount outstanding to be €900.00. That figure was not contested by the respondent.
In all of the circumstances I find that the complainant’s claims pursuant to Section 8 Unfair Dismissals Act , 1977, Section 11 of the Minimum Notice & Terms of Employment Act, 1973 and Section 28 of the Safety, Health & Welfare at Work Act, 2005 fail.
Pursuant to Section 27 Organisation of Working Time Act, 1997 I make an award of € 900.00.
Dated: 12/04/2017