ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002294

Complaint for Resolution:

Date of Adjudication Hearing: 24th August 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 4^th March 2016, the complainant referred a complaint pursuant to the Unfair Dismissals Act to the Workplace Relations Commission. The complainant is a depot supervisor and the respondent is a retail tyre supplier

At the outset of the adjudication, I indicated to the parties that I had heard a previous complaint involving the same parties (ADJ 432). Both parties had attended this adjudication.

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977 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.

Respondent’s Submission and Presentation:

The respondent submitted that the complainant had not been dismissed from its employment, but instead, he had resigned of his own free will. The respondent states that the complainant informed him of his decision to resign on Friday, 8^th May 2015 during a telephone call to the Operations Manager. On the 9^th May, the Operations Manager found a resignation letter from the complainant in head office. On Monday, 11^th May, the Area Manager made a routine call to the depot in which the complainant worked to collect daily figures. The respondent states that in this phone call, the complainant was aggressive, insubordinate and refused to provide the necessary information. The respondent made the decision that because of his behaviour, the complainant should not work out his notice. The respondent outlined that the complainant had informed colleagues of having found new work at another garage and that he began this role on the 15^th May 2015.

The Operations Manager outlined that he had been told by the complainant on Friday 8^th May 2015 that he intended resigning. The next day, the Operations Manager had attended the depot where the complainant worked and saw his letter of resignation. There had been issues with a new information management system being rolled out in Ireland and the complainant had requested a transfer. The Operations Manager said that he had overheard the Area Manager in his telephone call with the complainant on the 11^th May and said that the complainant had used bad language and had been insubordinate.

The Area Manager outlined that he had telephoned the depot on Monday, 11^th May 2015 to compile for sales figures, which had been to be accessed locally. He said that the complainant would not cooperate and refused to provide the figures. He also became aggressive and hung up the telephone. The Operations Manager then phoned back and the complainant reluctantly gave the figures to him. It was the complainant who had been heated and he had said that it was usual for the Operations Manager to call to collect the data. The Area Manager met with the complainant to say that he was not required to work his notice and that he would be paid notice pay later. The complainant said that he wanted his notice pay to be paid immediately and initially refused to leave the store. The complainant gave him his keys and the Area Manager could not remember whether the complainant took his tools with him.

In reply to the complainant, the respondent said that the “Staff leaving form” was probably filled in by the payroll administrator and stated that one week’s notice had been given. It was practice for staff to be moved around garages and this was provided for in the contract of employment. The respondent outlined that it believed that the complainant began working for a named garage on the 15^th May 2015.

One colleague outlined that he was present in the depot when the Area Manager rang the complainant on Monday, 11^th May 2015. The complainant said on the phone that he was unable to give the Area Manager the figures. There had been a customer in the office but there were no customers outside. He outlined that the complainant was then rude to the Area Manager. Later, the Operations Manager rang to obtain the figures and they were provided by the complainant. The Area Manager called to the garage and told the complainant that he was not required to work his notice and that he would be paid in full. There had been no roaring or shouting, but the complainant said that he would not leave. He heard the complainant ask to meet the Operations Manager and he was told that he could go to a different depot to meet him. He saw the complainant hand over his keys. He also said that the complainant had previously mentioned going for interview with a competitor of the respondent’s and had said that he had got a job there. He also said that the respondent phoned the depot every day to get sales figures, but on this day, the complainant had refused to provide the information.

The other colleague stated that he was also present in the depot on the 11^th May 2015. He heard the phone call between the complainant and head office. He also saw the argument in the canteen between the complainant and the Area Manager. He could hear their raised voices and the Area Manager said that the complainant had been very unprofessional. He had asked the complainant what he was going to do and the complainant said that he had another job to go to.

Complainant’s Submission and Presentation:

In documentary submissions, the complainant submits a complaint form date-stamped as received by the Workplace Relations Commission on the 9^th October 2015. This is made pursuant to the Unfair Dismissals Acts. This document was apparently returned to the complainant without explanation. The complainant later submitted an application pursuant to the Payment of Wages Act, dealt with in ADJ 432 on the 12^th February 2016. Following this adjudication, the complainant submitted a second application pursuant to the Unfair Dismissals Acts on the 1^st March 2016, which is the subject of this adjudication.

The complainant commenced employment with the respondent on the 1^st July 2012 and was promoted to the post of depot supervisor in April 2013. The complainant states in the complaint form that he is paid basic pay of €369.72 as well as a fluctuating bonus payment. In respect of the events of the 8^th May 2015, the complainant said that he attended his usual place of work and received a phone call to go to another branch of the respondent. He had to take a taxi to this other depot as he had no means of getting to the branch. The complainant described this as being the last straw in being moved around depots of the respondent. He rang the Operations Manager to raise this with him. He said that he was unhappy with being relocated to different depots. The Operations Manager undertook to meet him on the following Monday. The complainant was told to bring the takings home with him and was left waiting for 90 minutes for a taxi, leaving the facility at 6.30pm. He dropped in the takings to his own branch on the following day, giving them to a named manager. The complainant denied giving the respondent any notice of his resignation.

In respect of the 11^th May 2015, the complainant outlined that it was usual for the respondent to telephone the garage to collect sales figures. On this day, he spoke with the Area Manager and said that he was with customers and would phone back later. The Operations Manager then rang to say that the complainant must provide the figures, and the complainant did so. Later that day, the Area Manager arrived at the garage and said to the complainant “you’re fired”. He handed over his keys and took his tool box. As he was fired, he could not lodge a grievance or complaint with the respondent.

In reply to the respondent, the complainant denied having seen the “Staff leaving form” dated the 13^th May 2015, which refers to the 11^th May as the last day of the complainant’s employment. He also denied writing the letter of resignation exhibited by the respondent and in his name.

The complainant outlined that he started working in another garage in the middle of June 2015. He interviewed for the post in May. He said that the details of his new contract were not relevant to this case. I note that the complainant states in the complaint form that he commenced work elsewhere on the 1^st June 2015.

Findings and reasoning:

The complainant’s final day in the respondent’s workplace was the 11^th May 2015; the respondent states that the expiry of the complainant’s notice took him to the 15^th May 2015. The complaint of unfair dismissal received by the Workplace Relations Commission is date-stamped the 4^th March 2016. The first issue to address is whether the complaint can proceed, given the complaint is made more than six months after the end of the complainant’s employment and the expiry of the applicable notice period.

In the circumstances, I believe that the complainant has shown reasonable cause for the late submission of the complaint. He presents written evidence that he had lodged an application within time and that this was returned to him without explanation by the Workplace Relations Commission. The complainant stated that it was his later understanding that this may have occurred because of the particular form he used after the enactment on the 1^st October 2015 of the dispute resolution process pursuant to the Workplace Relations Act. After the adjudication of a separate complaint regarding this same period of employment, the complainant submitted the second unfair dismissal application. Given that the complaint form is a non-statutory form, the first unfair dismissal application should have been processed. No explanation appears to have been provided why the document was returned. I note that the second application was made within a short time of the adjudication of the 12^th February 2016. In these, unusual, circumstances, I find that the complainant has demonstrated reasonable cause in submitting a late application.

The parties presented diametrically opposing versions of the events of the 8^th May to 11^th May 2015. Having considered the oral and written evidence of the parties and their witnesses, I find that, taken together, the evidence of the complainant is more plausible. The complainant denies writing the purported letter of resignation of the 9^th May 2015. It is not signed and I am struck by the reference in the letter to “minimum notice and terms of employment act 1973 – 2005”. This contrasts with how the complainant referred to statutory rights in his submissions. Furthermore, the collective citation contained in the letter is different to the one at page 6 of his contract, so it was not the case of the complainant writing out what was in his contract. I also note the manner in which the respondent states the letter was found in the office, as opposed, for example, to being handed in with the takings from the previous day. Having weighed up the opposing accounts, I find as fact that the complainant was summarily dismissed from his place of work, and his employment, on the 11^th May 2015.

In respect of redress, I note that the complainant’s application states he commenced his new role on the 1^st June 2015. I, therefore, award the complainant the amount of €850 as being just and equitable in the circumstances.

Decision:

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.

CA-00003137-001

I find that the complaint made pursuant to the Unfair Dismissals Acts is well founded and, pursuant to section 7(1)(c)(i) of the Acts, the respondent shall pay to the complainant the amount of €850.

Dated: 8^th March 2017