PWD1712

Mr G (the Complainant) was employed by the Respondent in an administrative capacity. His duties included cheque signing which became an issue between himself and the Managing Director of the Respondent, his father. He submits that he was asked to sign blank cheques which the Respondent disputes. He also submits that he sought on several occasions to have himself removed as a cheque signatory but was frustrated in that process by both the Respondent and its bankers.

He submits that his relationship with his father was fractious. He submits that occasionally it degenerated into aggressive exchanges. These he said resulted in his dismissal on a number of occasions that were in each case reversed subsequently.

He was paid his salary and in addition had the use of the accommodation above the Respondent’s main office. This accommodation was his family home where his lived with his family. He submits that his employment was precarious and that this had an adverse impact on his domestic dwelling arrangements that he felt were constantly under threat when his employment was repeatedly terminated and subsequently reversed.

He submits that on 11 February 2015 he was summarily dismissed by the Managing Director. He said that the was instructed to sign pay roll cheques for the staff. He said that he refused to do so as he had repeatedly requested that he be removed as a signatory. He said that when he refused to sign the cheques he was told by the Managing Director to F***** Off. He said that he understood this to mean that he had been dismissed.

He submits that his circumstances had caused him to look for other employment. He said that he had prepared a letter of resignation from the Company but had not issued it as he had not finalised his decision to leave. He submits that when the incident occurred on the 11^thhe was dismissed and was not been given the benefit of any procedure in respect of that dismissal.

The Complainant further claims that he was not paid his statutory holiday entitlements for which the Adjudication Officer awarded him the sum of €120.00

Finally he submits that he has a statutory entitlement to notice of termination of his employment which he claimed under the Payment of Wages Act.

Respondent's Case

The Respondent acknowledges that he told the Complainant to F**** Off as claimed. However he submits that he at no point intended to dismiss the Complainant. He submits that he was frustrated at the Complainants refusal to sign cheques and this led to the outburst on that day. He acknowledges that it was inappropriate behaviour but denies that it amounted to a dismissal.

He made several other accusations about the Complainant but accepted that they did not give rise to a decision to dismiss him at that time.

He further submits that after the outburst the Complainant returned to the office and left a notice of resignation on his desk. He submits that the Complainant had in fact decided to resign his employment and is now seeking to convert a resignation into a dismissal.

The Respondent submits that he paid the Complainant all outstanding holiday pay and other payments due to him.

Both the Complainant and the Respondent gave evidence to that effect to the Court.

Ms P, an employee of the Respondent, told the Court that she witnessed the entire interaction between the claimant and the respondent. She told the Court that the relationship between the two men had been bad and very turbulent over a period of time. She said that she had formed the view that they needed a break from each other and that the Complainant would be better served if he found employment with a different company. She said that she assisted the Complainant with a reference he had drafted which she signed in order to enhance his employment prospects.

She said that on the 11^thFebruary 2015 she was in the office when the incident occurred. She said that she did not understand that the Complainant had been dismissed. She said that she subsequently found a letter of resignation on the complainant’s desk and understood this to be his resignation from the Company in line with his job finding efforts of recent times. She denied that she searched his office desk drawer for the letter. She said that it was on open display on his desk.

Ms P told the Court that she had provided the Complainant with a note to say he was dismissed in order to assist him to claim Social Welfare entitlements should he need them. She told the Court that it was not an accurate description of the events that occurred on the 11^thof February 2015.

The Law

Section 6 states

6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

In this case dismissal is disputed. Accordingly it is for the Complainant to show that he has been dismissed by the respondent.

The Complainant relies on the exchange of words that took place with his employer on the morning of the 11^thof February 2015. The respondent admits the exchange took place but denies the dismissal. The witness to the proceedings, who was balanced, fair and impartial in the Courts view, confirmed the Respondent’s version of events. She gave further evidence that the Complainant had been actively looking for work, she had signed a reference he had prepared to assist this process and had found the letter of resignation the Complainant submitted to the Respondent.

On balance the Court finds the evidence of Ms P compelling and believable and prefers it to that of the Complainant or the Respondent

The Court specifically finds that the Complainant at all times was aware that he was not being dismissed on the 11^thFebruary but chose for his own purposes to put that gloss on events in order to ground a claim of unfair dismissal..

On that basis the Court decides that the Complainant resigned his position as he intended to do and issued his letter of resignation to the Respondent in line with that decision. The Court finds that the Complainant at all times was aware that he had not been dismissed but sought to take advantage of the incident on the 11^thto level charges against the Respondent on an opportunistic basis. The Court finds that the contention that the Respondent dismissed the Complainant is without merit.

The Court further finds that the Respondent’s behaviour towards the Complainant and his towards the Respondent were equally unacceptable and influenced by the close family relationship between them. Their behaviour towards each other at work was unacceptable and unfair to other staff.

Holiday Pay

The Respondent is required to maintain records of all annual and Public Holiday leave payments made to the Complainant. In this case he failed to produce any such records to the Court. Under section 25 of the Organisation of Working Time Act 1997 a failure to keep records places an obligation on the Respondent to prove compliance with the Act to the Court. He has failed to do so in this case. Accordingly the Court decides that the complaint is well founded.

Payment in Lieu of Notice

Finally as the Complainant resigned his position no claim arises under the Payment of Wages Act for pay in lieu of notice.

Decision

The Court decides that the Complainant was not dismissed from his employment but chose to resign having sought other employment and fallen out with his father his employer.

The Court further finds that, as the Complainant resigned his position his claim for pay in lieu of notice is not well founded.

Finally the Court finds that the complaint under the Organisation of Working Time Act 1997 is well founded and affirms the decision of the Adjudication Officer.

The Decisions of the Adjudication Officer are varied accordingly.

The Court so decides.

Signed on behalf of the Labour Court



Brendan Hayes
15 May 2017______________________
MNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.