UDD177

This is an appeal by Martin Wright (the Appellant) against the decision of an Adjudication Officer in his complaint made under the Unfair Dismissals Acts 1977 – 2015 (the Act) that he had been unfairly dismissed by his former employer Mac Hale Plant Hire Limited (the Respondent).

In a decision dated 12^thAugust 2016 the Adjudication Officer found that no dismissal had taken place and that the complaint was not well founded.

The Adjudication Officer also made a decision under the Minimum Notice and terms of Employment Act, 1973 which is under appeal. The Adjudication Officer made no decision under the Redundancy Payments Act, 1969. The Appellant agreed at the hearing of the Court that, no decision having been made under this act, no valid appeal could be made.

The Appellant was employed from 1^stJanuary 1997 until the termination of his employment on or after 28^thSeptember 2015.

The fact of dismissal is in dispute.

Approach of the Court.

The Respondent confirmed to the Court that its defence to the complaint of Unfair Dismissal was that no dismissal had taken place at all. The Respondent confirmed its understanding that in the event of the Court concluding that a dismissal had taken place the dismissal, by reference to the Act at Section 6(1), was unfair.

The Court decided in consequence of the Respondent’s position that the issue for decision in this case was whether a dismissal had taken place. The Appellant contended that the alleged dismissal had taken place on 28^thSeptember 2015. Thus the Court’s consideration of the complaint of alleged Unfair Dismissal concerns the events of 28^thSeptember 2015. The Court outlined to the parties at its hearing its intention to determine the matter by reference to the events of 28^thSeptember 2015.

The parties accepted this approach as being the appropriate means to determine the case as presented.

Factual background.

Certain events occurred in the week ending 25^thSeptember 2015 which culminated in a disagreement between the Appellant and the Contracts Manager of the Respondent on that day. The Appellant worked normally following that disagreement and left the site at the conclusion of his day’s work.

The Appellant reported for work on the site on Monday 28^thSeptember 2015 and was stopped by the Contracts Manager. The parties disagree as to the exact nature of events at that point but ultimately the Appellant departed the site and did not report to work with the Respondent again.

It is common case that the Respondent wrote to the Appellant by letter dated 2^ndOctober 2015 advising the Appellant that the Respondent would not be paying the wages of the Appellant as he had “refused to attend work”. That letter also invited the Appellant to contact the Respondent’s office or a named representative of the Respondent to arrange an appointment to attend a meeting.

The Appellant did make contact with the named representative of the Respondent on 23^rdOctober and again on 13^thNovember but never attended a meeting with the Respondent or the named representative of the Respondent.

Summary of the position of the Appellant

The Appellant contends that a series of incidents occurred in the week preceding Monday 28^thSeptember 2015. He stated in evidence to the Court that on arrival at the work site on 28^thSeptember 2015 the Contracts Manager raised his hand to indicate that he should stop his vehicle. He also stated in evidence that the site manager advised him that “there is no more work for you”. He stated in evidence that he took it from this statement by the site manager that he had been dismissed. He stated that he advised the site manager of the Respondent that he would see him in court as he left the site.

The Appellant stated in evidence that he attempted to contact the Managing Director of the Respondent on the 29^thand 30^thof September by phone and text. He confirmed that he left no voicemail in the course of these attempts.

The Appellant stated that he received a letter from the Respondent on 12^thOctober which was dated 2^ndOctober. The Appellant stated in evidence that he did not respond to this letter.

The Appellant stated that at some point after 12^thOctober 2015 he had contacted a representative of the Respondent who had offered him the sum of €5,400 in lieu of notice.

The Appellant contended that the events of 28^thSeptember constituted a dismissal and he contended that the fact that he had been unable to contact the Managing Director of the Respondent, that he had not been contacted by letter until some time afterwards and that he had been offered a sum of money by a representative of the Respondent supported his contention that he had been dismissed.

Summary of the position of the Respondent

The Respondent contended that no dismissal of the Appellant took place.

The Contracts Manager stated in evidence that a serious altercation took place on Friday the 25^thSeptember 2015 between the Appellant and the Contracts Manager. He stated that he advised the Managing Director of that incident and was instructed to tell the Appellant on the following Monday (28^thSeptember) that the Appellant was to report to the Respondent’s Head Office which was located in Dublin.

The Respondent’s Managing Director stated in evidence that he had given such an instruction to the Respondent’s Contracts Manager.

The Appellant’s Contracts Manager stated in evidence that the Appellant, on being advised that he was to report to the Head Office, replied ‘are you firing me?’. The Contracts Manager stated in evidence that he advised the Appellant repeatedly that he was not being ‘fired’. The Contracts Manager stated in evidence that the Appellant used an expletive and asserted that he would see the Contracts Manager / Respondent in court.

The Respondent asserted that no contact was made by the Appellant following this incident and that a letter ultimately issued to him on 2^ndOctober requesting him to contact the Head Office or a named company representative and advising him that he was not being paid in the meantime because of his non-attendance at work.

The Respondent stated to the Court that the Appellant made contact by phone on 23^rdOctober 2015 and that it was agreed that the named representative of the Respondent and the Appellant would meet. The Respondent stated that the Appellant made further contact on 13^thNovember 2015 and enquired, amongst other things, whether the Respondent would apply statutory redundancy terms should the Appellant depart the employment. The Respondent stated that the Appellant was informed that no redundancy existed but that notice would be paid if the Appellant left the employment. The Respondent stated that the Appellant was asked in this phone call to meet with the Respondent’s representative. The Appellant asserted that no further contact was received prior to the lodgement of the within complaint with the WRC.

Discussion and conclusions.

The Court has been presented with a direct conflict of evidence between the parties as regards the events of 28^thSeptember 2015. These events are central to the matter before the Court insofar as the Appellant contends that the exchange between the Appellant and the Respondent’s Contracts Manager on that date amounted to a dismissal. The Respondent contends that the interaction consisted of an instruction to the Appellant to report to the Head Office of the Respondent.

The Court has considered carefully the evidence of the Appellant and two representatives of the Respondent. The Court prefers the evidence of the Respondent’s Contracts Manager which is supported by that of the Respondent’s managing director and concludes that the version of events set out by the Respondent’s Contracts Manager is the more accurate description of the interaction on the day. The Contracts Manager’s evidence is that he was instructed by the managing director to request the Appellant to attend at the head office of the Respondent. That evidence is supported by the evidence of the managing director.

In light of its acceptance of the evidence of the Respondent’s Contracts Manager and managing director the Court concludes that the events of 28^thSeptember did not constitute a dismissal and that the Appellant was not presented with an instruction or information which he could reasonably conclude amounted to a dismissal.

The Court notes the events which followed the 28^thSeptember and notes the written request to the Appellant to engage with the Respondent. The Court notes that, apart from two telephone calls, no further engagement took place. The Court considers that the Appellant was given the opportunity to engage with the Respondent and chose not to take up that opportunity.

In all of the circumstances the Court finds that no dismissal took place and that as a consequence the within appeal cannot succeed.

Determination.

The Court determines, for the reasons set out above, that the Appellant was not dismissed and affirms the decision of the adjudication officer.

Signed on behalf of the Labour Court



Kevin Foley
22nd February 2017______________________
JKChairman



NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.