ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001176

Complaint for Resolution:

Date of Adjudication Hearing: 03/11/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977, and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background. 

The Complainant was employed by the Respondent from 1^st October 2013 until the employment terminated on 1^st December 2015. The Complainant was paid €708.75 gross per week and he worked 39 hours a week. The Complainant was provided with a written statement of his Terms and Conditions of Employment.

The Complainant referred a complaint to the Workplace Relations Commission on 18^th December 2015 alleging he had been unfairly dismissed by the Respondent on 1^st December 2015.

The Respondent disputed that the Complainant had been dismissed.

Summary of Complainant’s Position.

The Complainant stated that he was employed with the Respondent from 1^st October 2013. He worked at a Public Sector site where the Respondent worked for this client. He stated that there was an incident on 25^th August 2015 when he had an argument with his ex-girlfriends father when this gentleman was attending the Public Sector Premises. The Complainant stated that he was suspended without pay and he stated that the Respondent would write to him concerning his suspension. The Complainant stated that he has had no contact from the Respondent since that date nor has he been requested to return to work. In effect he stated he had been dismissed. He stated he requested his P45 which he received and is dated 1^st December 2015.

The Complainant stated that he had been in receipt of Job Seekers Benefit from the Department of Social Protection until he commenced employment again in August 2016. He stated that he is paid €120.00 per day and he works 3 -4 days a week.

The Complainant was requested to provide evidence that he was in receipt of Job Seekers Benefit to August 2016 but did not do so and neither did he provide evidence of his employment from August 2016 as requested.

Summary of Respondent’s Position.

The Respondent stated there was an incident occurred on 25^th August 2015 in the reception area of the Public Sector Site where the Respondent has been involved in a project for a number of years. The Respondent received a phone call from a named third party who was attending the Centre to complain that he had been approached by the Complainant in a very aggressive manner who shouted at him and made derogatory remarks concerning his daughter whom the Complainant had been in a relationship with until early 2015. This person is a man aged over 80 years of age who was attending the centre for medical treatment. This person stated that if the situation was not dealt with he would consider calling the Gardai in relation to the incident.

The Respondent contacted the porter on duty to see if an incident had been reported at the Centre. It was confirmed there was and that the gentleman (named) had filed a complaint with the centre.

The Respondent stated he attended at the site on the same day and he was approached by the Complainant who wished to report an incident that morning with the named gentleman. The Respondent gave a detailed account of the exchange between him and the Complainant.

The Respondent stated he was aware of the personal difficulties of the Complainant following the breakdown of his relationship. However he stated that he explained to the Complainant that when they were working on a site open to the Public the Respondent had a duty of care to his employees and to the Public using the Centre.

The Respondent requested the Complainant to set out his account of the incident in writing and to return it to the Respondent as soon as possible. The Respondent also informed the Complainant he would seek a statement from all the parties to the incident.

The Respondent contacted the Complainant on 28^th August 2015 asking him to meet to collect his wages and to progress the investigation. They met in a named location. The Complainant was asked for his written statement to which he replied that he did not feel he had to provide any statement verbally or written in relation to the incident. He stated it was an altercation between two people in a public place. The Complainant was informed the investigation could not be completed unless he provided a written statement. The Complainant asked if his suspension was without pay. He was informed it was until the completion of the investigation and he was requested to co-operate. The Complainant became very agitated and requested the names of the other parties who had been requested to give a statement saying he would talk to these people and explain his side of the incident.

The Respondent offered the Complainant alternative work at other sites in which the Respondent was involved pending the outcome of the investigation. The Complainant stated he was only interested in working on his current site and refused to move to alternative sites pending the outcome of the investigation. The Complainant then left the meeting.

The Complainant contacted the Respondent on 1^st September 2015 to inform them he was collecting his tools from the site. The Respondent became aware that the Complainant had not just removed his tools but a large number of other tools were missing. The Respondent contacted the Complainant in relation to this. The Complainant met the Respondent to hand back the tools which he stated he had inadvertently removed.

The Respondent contacted the Complainant by text over October 2015 seeking to arrange a meeting to conclude the investigation. – Evidence provided at the Hearing. The Respondent stated it was impossible to get agreement to meet and towards the end of October he was informed by the Complainant that he was unwell and was unable to meet.

The next contact from the Complainant was on 1^st December 2015 when he rang the financial controller of the Respondent requesting his P 45. This was issued to him along with all outstanding annual leave accrued.

Decision CA-00001576

There was no evidence presented at the Hearing by the Complainant or his legal representative that the Complainant had been dismissed by the Respondent.

Both Parties confirmed that the Complainant was suspended without pay on 25^th August 2015, following an incident involving a member of the public at the site where the Complainant was employed.

The evidence shows that the Respondent met the Complainant on 28^th August 2015 to progress the investigation but the evidence was that the Complainant refused to provide a statement in relation to the incident.

The evidence also shows – from texts – that the Respondent sought to meet with the Complainant during October 2015 but the Complainant refused to meet informing the Respondent at the end of October 2015 that he was unwell and unable to meet the Respondent.

The evidence shows that a Solicitor for the Complaint wrote to the Respondent on 21^st September 2015 seeking for the Complainant to be reinstated on full pay backdated to 25^th August 2015 within 7 days.

The evidence also shows that the Solicitor for the Complainant again wrote to the Respondent on 27^th November 2015 stating that in effect the Complainant was constructively dismissed and seeking his P45 immediately.

Both Parties also confirmed at the Hearing that the Complainant was offered alternative employment on a different site pending the outcome of the investigation and that the Complainant refused this offer of alternative employment.

In accordance with Section (1) (c ) of the Act I declare the complaint is not well founded.

Rosaleen Glackin

 Adjudication Officer

Date:     16^TH February 2017