ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005424

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 18/01/2017

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] 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).

The complaint under the Redundancy Payments Act, 1967 was withdrawn at the hearing.

Terms of Employment (Information) Act 1994

Claimant’s Position

The claimant was employed as a mechanic with the respondent from the 1^st.August 2014 to the 22^nd.Sept. 2016. He submitted the respondent was in breach of the Act for failing to furnish him with written terms and conditions of employment in the course of his employment.

Respondent’s Position

The respondent refuted the allegation of a breach of the Act and submitted in evidence a copy of the claimant’s contract of employment together with the respondent’s handbook.

Decision

I have reviewed the evidence presented at the hearing and noted the polarised accounts of the parties – I note that the documentation presented by the respondent indicates that the terms were issued 19 months after the claimant commenced employment – this is outside the time frame of 2 months set down in the Act and consequently, I am upholding the complaint. I require the respondent to pay the claimant €450 compensation for this breach within 42 days of the date of this decision.

Unfair Dismissal’s Acts 1977

Summary of Claimant’s Position

The claimant submitted that he was compelled to quit his job on the 22^nd.Sept.2016 having sustained an injury. He submitted that he was expected to work with defective lifts which constantly failed and that he was electrocuted on one occasion by a defective switch. The claimant submitted photographic evidence of the alleged defects and named same as follows:

Damaged car Lifts

All Technical and Mechanical Tools Damaged

No Warm Water

No pipe to take out the harmful gases from the Work Hall

Oil Spills all over Floor

Workhall is a mess

Employer doesn’t but us safety shoes or clothing.

The claimant wrote to his employer on the 22^nd.September stating that he was “quitting my job immediately as the workplace is not safe and it’s a danger to my health and life.”

He asserted that everyone in the workshop knew of the respondent’s poor safety record.

Summary of Respondent’s Position

The respondent denied the allegation of poor safety standards and submitted voluminous documentation which they asserted confirmed that when and as problems arose they were diagnosed and repaired. It was submitted that if a safety issue arose, the lift and or any other equipment would be shut down pending diagnostics and repair. Emails from the Health & Safety Authority, Diagnostic Solutions and the company’s insurers were submitted in support of the respondent’s position. It was advanced that the claimant had been unable to establish sufficient grounds to justify walking off the job.

The respondent asserted that the claimant called to the premises on the 30^th.Sept.2016 in an explosive manner, knocking items off the office desk and banging doors. It was alleged that the claimant warned the owner that he would kill him if he did not pay him his outstanding wages and that this abusive exchange was witnessed by several staff members. It was submitted that even though the money was not owed to the claimant, the respondent paid him a sum of €876.62 on the day.

Decision

I have reviewed the evidence presented at the hearing and noted the respective position of the parties. I noted in particular the claimant’s admission that he made no written complaint about the alleged safety failures and that when he spoke to his supervisor about the left problems the supervisor confirmed to him that he had alerted Diagnostics. In these circumstances , I am obliged to find that the claimant has not met the burden of proof required to demonstrate that he had no option but to quit and I find that he failed to use and/ or exhaust internal procedures with respect to his grievances. Accordingly, I do not uphold the complaint of constructive dismissal.

Dated:   25 April 2017