Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 8    of the Unfair Dismissals Act, 1977

CA-00010991-001

26/04/2017

The Complainant commenced employment with the Respondent, as a   general operative, on 23 April 2005.

On 8 March 2017, an incident occurred where a colleague threw a   timber block at a machine being operated by the Complainant. The block   smashed the glass of the window in the cab of the machine. The Complainant   reported the incident to the Respondent's Office Manager in the main office.

The Complainant also reported the matter to the Gardaí, who visited   the Respondent premises the following day and spoke with the Accounts Manager   in relation to the incident.

On the following Monday, (13 March), the Complainant returned to   work for the first time since the incident. On discovering that his machine   was being operated by another employee, the Complainant was advised by the   Yard Manager that it was their understanding that he (the Complainant) was   not returning to work. The Yard Manager advised the Complainant to make   direct contact with the Respondent.

The Respondent, who had just returned from leave that day, spoke   with the Complainant on the phone later that afternoon. Following the phone   call the Respondent interviewed a number of staff in relation to the incident   of the previous week.

On 16 March, the Respondent received a registered letter from the   Complainant indicating that he had not resigned his position and was seeking   a response from the Respondent as to why he couldn't return to work.

On the following Monday, (20 March) the Respondent, accompanied by   another employee, called to the Complainant's house in order to discuss the   matter with him. Having failed to meet with the Complainant on the first   visit they returned sometime later. On the second occasion, while they did   encounter the Complainant, he did not engage with them.

The Respondent sent a letter to the Complainant on 20 March,   indicating that the reason he called to his house was to discuss the incident   of 8 March. The letter requested the Complainant to make contact with the   Respondent if he wished to discuss the matter further. There was no further   contact between the parties.

The Complainant submitted his complaint for unfair dismissal on 26   April 2017.

The Complainant commenced his submission by providing a background   to the incident on 8 March 2017. According to the Complainant's evidence, he   was the recipient of bullying behaviour from his colleagues going back over   10 years. The Complainant indicated that he found this situation intolerable   and brought the matter to the attention of management, in the person of both   the previous and current owners of the business, on a number of occasions.

The Complainant stated that the situation intensified from 2014   onwards when he was appointed to work on a particular machine full-time. The   Complainant stated that as a result of this other employees were disgruntled.   He outlined a series of incidents which he stated made his work situation   intolerable. The Complainant further stated in evidence that nothing was done   about this situation.

The Complainant then went on to provide details in relation to the   incident on 8 March 2017. According to his evidence, the Complainant was   operating his machine, when a colleague threw a timber block, which smashed   the glass in the cab of the machine. The Complainant stated that he was   terrified by this action, as the colleague, who threw the block, was carrying   a chainsaw at the time of the incident.

According to the Complainant's evidence, he felt that his workplace   was no longer safe and, therefore, he could no longer remain at work.   Consequently, at approximately 4:20 pm, he informed the Office Manager of the   situation and left his workplace.

The Complainant further stated that as he had received no contact   from the Respondent by the Friday morning, he contacted the local Gardaí and   reported the incident of the previous Wednesday as personal assault.   According to the Complainant, the Gardaí visited him at his home.

According to his evidence, having received no contact in the meantime   from the Respondent, the Complainant decided to attend work on Monday, 13   March. The Complainant stated that, on arriving at work, he noticed another   employee was operating his machine. When he queried the Yard Manager as to   why this was so, the Complainant stated that he was informed that as far as   they were concerned he (the Complainant) had left the job.

The Complainant stated that he returned home and later that day   received a phone call from the Respondent. According to the Complainant's   submission this was an aggressive phone call and the Respondent appeared very   angry that the matter had been reported to the Gardaí.

In further evidence, the Complainant stated that, following the   phone call, he sent a letter by registered mail to the Respondent in which he   refuted the contention that he had handed in his notice. He stated, in the   letter, that he had merely removed himself from the workplace as he felt it   was no longer safe for him to remain there. The letter also sought   confirmation from the Respondent as to why the Complainant could not return   to work.

In summary, the Complainant submits that he was dismissed by the   Respondent during the telephone conversation on 13 March 2017. He claimed   that this dismissal was unfair and is seeking compensation as redress.

The Respondent refuted the Complainant's claim that he was unfairly   dismissed. The Respondent stated that the Complainant was an employee until   he voluntarily terminated his employment on 8 March 2017

The Respondent claimed that the Complainant's statement, in his   complaint to the WRC, that he "does   not know why he was dismissed" is misleading and somewhat vexatious   as he (the complainant) had given notice of termination of his employment and   did not return to work of his own volition.

The Respondent contends that he endeavoured to contact the   Complainant on a number of occasions, including calling to the Complainant's   house on two occasions to investigate the reasons for his voluntary decision   to leave his employment. The Respondent stated that the Complainant refused   to engage with them in having the matter investigated.

The Respondent stated that as the Complainant had voluntarily   terminated his employment on 8 March 2017, there was no breach of the Unfair   Dismissals Act by the Respondent and that the unfair dismissal claim by the   Complainant had no basis in law or fact.

In his evidence at the Hearing, the Complainant stated that he had   been subjected to, what he considered to be, inappropriate behaviour at the   hands of his work colleagues over a number of years. While the alleged   dismissal relates directly to incidents and events between 8 March 2017 and   20 March 2017, I considered this evidence as, I believe, it provided a background   or context to the actual events, particularly those on 8 March 2017.

In their reply to the Complainant's allegations with regard to   bullying and harassment, the Respondent stated in evidence that there had   been a number of incidents between the Complainant and some of his Polish   colleagues over a period of time.

Clearly, it does not fall within the remit of this Hearing to   determine the rights and wrongs of those particular incidents. However,   having carefully considered all the evidence adduced in this regard at the   Hearing, I am satisfied, on the balance of probability that significant   tensions existed between the Complainant and some of his work colleagues,   particularly those of Polish origin. I am also satisfied that the tensions   significantly influenced the events of 8 March 2017.

The evidence adduced at the Hearing clearly indicates that, at the   time of the incident, the Complainant was providing raw material to two of   his Polish colleagues, who in turn had to carry out some further procedures   on the material. The evidence indicates that the pace and manner of the Respondent's   provision of the raw material was causing some difficulties for his two   colleagues. By gestures and hand signals, the colleagues made several   attempts to draw the matter to the Complainant's attention and get him to   slow the process down in line with their ability to complete their tasks.

The evidence would further suggest that the Complainant's failure to   comply with these requests from his colleagues led to significant frustration   on their part. As a result, one of the colleagues, who claims that he had   actually been hit by one of the pieces of material being provided by the   Complainant, took a timber block and fired it at the machine which the   Complaint was operating, thereby smashing the glass in the cab.

The subsequent events are a matter of fact and, to a large extent,   are also undisputed. These facts are that the Complainant became irate as his   colleague's behaviour, left the area in which they working and proceeded to   the office where he informed the Office Manager of the incident. Following this,   the Complainant left the work site.

The Complainant did not attend for work on either of the two   following days (Thursday and Friday, 9/10 March 2017). Although there is   contradictory evidence as to exactly when the Complainant contacted the   Gardaí, I am satisfied that he did report the matter as a personal assault.   It would appear from the evidence that the Gardaí visited the Complainant at   his home and also visited the Respondent's premises.

While I am satisfied that there was no contact with the Complainant   over the days following the incident, it is clear that the reason for this   was that the owner of the business was in the UK on leave that week and did   not return to work until midday, the following Monday, 13 March.

I am further satisfied that the evidence adduced clearly shows that,   without any further interaction or consultation with the Respondent, the   Complainant returned to work on Monday 13 March 27. On arriving at work, the   Complainant discovered that, on the understanding that he had left the job,   his machine had been allocated to another employee. Once again, the   Complainant left the work site.

On his return to work, following his leave, the Respondent contacted   the Complainant by phone, having missed a call from him earlier that day. There   is conflicting evidence between the accounts of the Complainant and the   Respondent with regard to the content and nature of this phone conversation.   However, the conversation was overheard by a witness, who was in a position   to provide his evidence in this regard at the Hearing.

Following this phone conversation, the Respondent set about   investigating the events of 8 March 2017. This involved interviewing   witnesses who had observed the incident and/or who may have engaged with the   Complainant subsequent to the incident.

In the meantime, the Complainant sent a letter by registered post to   the Respondent stating, inter alia, that he had never given any indication   that he had left his job or handed in his notice and the only reason he had   left the premises, on the afternoon of 8 March, was because he felt the work   environment was unsafe.

On the following Monday, (20 March), the Respondent and another   employee called to the Complainant's house on two occasions. However, despite   a brief engagement with the Complainant, on the second visit, the Respondent   did not succeed in engaging with him in a productive manner with regard to   the issue at hand.

Later that day, the Respondent wrote to the Complainant advising   that they wished to investigate the incident which took place on 8 March and   requested that he make contact for further discussions.

No further discussions took place and the Complainant submitted his   complaint for unfair dismissal to the Workplace Relations Commission (WRC) on   26 April 2017.

As stated above, the most significant evidence which was in dispute   between the parties related to the telephone conversation between the   Respondent and the Complainant on 13 March 2017. In his evidence to the   Hearing, the Complainant stated that this was an aggressive phone call, where   the Respondent was annoyed that he (the Complainant) had referred the matter   to the Gardaí.

On the other hand, the Respondent denied that he was angry or   aggressive during this phone call. The Respondent further stated that during   the telephone conversation the Complainant asked on a number of occasions –   "am I fired?”. According to   the Respondent's evidence he informed the Complainant that he had not been   fired but had left work voluntarily.

Given that the Complainant stated in evidence that he was dismissed   during this phone call, the conversation that took place between him and the   Respondent is one of two key events in determining the outcome of this   complaint.

In addition to the direct evidence put forward by the Complainant   and Respondent in relation to the telephone conversation, witness evidence   was presented by a Sales Representative who was present in the office when   the phone conversation took place. The witness confirmed that the Respondent   had made a call and placed the phone on speaker, as a result of which the   conversation was audible to the witness.

The witness confirmed, in his evidence, that the Respondent informed   the Complainant that he wished to investigate the incident on 8 March 2017.   According to the witness' evidence the Complainant was trying to get the   Respondent to say that he (the Complainant) was not welcome back at work. The   witness also stated that the Complainant looked for a letter saying why he   could not come back to work. The witness confirmed in evidence to the Hearing   that the Respondent never told the Complainant that his job was gone but   reiterated the fact that he wanted to investigate the incident.

The witness stated in evidence that the phone conversation was calm   and civil in nature and that there were no raised voices. He also confirmed   that the Respondent did not use bad language during telephone conversation.

Based on the evidence of this witness, I am satisfied that the   Complainant was not dismissed during this phone conversation on 13 March   2017. On the contrary, I am satisfied that the Respondent made it clear to   the Complainant that he wished to investigate the incident on 8 March 2017.

The second key incident in this case relates to the visit by the   Respondent and another employee to the Complainant's house. The employee who   accompanied the Respondent on both visits was the same individual who had   witnessed the telephone conversation the previous week. Based on the evidence   of the Respondent and the witness, which was uncontested by the Complainant,   I am satisfied that on the first visit to the house, they failed to make   contact with or have any sighting of the Complainant. This was despite the   fact that both the Respondent and the witness believed the Complainant was in   the house.

The further evidence suggests that, on the return visit to the house later that   day, the Complainant's wife arrived at the house at the same time as the   Respondent and witness. The evidence clearly establishes that the Complainant   opened the front door to allow his wife in and then closed it out again   without engaging in any way with the Respondent.

In addition, the Hearing was provided with significant witness   evidence to the effect that when the Complainant left his place of work on   the afternoon of 8 March 2017, he gave clear indication that he was leaving   his job, as opposed to just leaving temporarily.

Firstly, in this regard, the Yard Manager told the Hearing that,   following the incident, when he requested the Complainant to go back into the   machine and continue working, the latter stated: "No, I'm finished here", before walking away.

The evidence clearly shows that the Complainant then proceeded to   the office where he informed the Office Manager that he was: "finished with this place". In her   evidence to the Hearing, the Office Manager also stated that the Complainant   commented to the effect that he wouldn't be back: "until the Polish were sorted out".

Finally in this regard, the written statement of the Accounts   Manager suggests that when the Gardaí visited the Respondent premises, they   informed her that the Complainant was finished and would not be coming back   to work.

Consequently, taking all the above into consideration, I am   satisfied that no dismissal took place. I am further satisfied that the   Respondent provided the Complainant with every opportunity to engage in an   investigation of the events of 8 March 2017. However, the Complainant refused   to engage with the Respondent in this regard and by doing so effectively   terminated his employment.

Having carefully considered all of the evidence adduced and based on   the considerations/findings as detailed above, I find that the Complainant   was not dismissed but voluntarily terminated his employment. Therefore, the   Complainant’s claim for unfair dismissal is not upheld.

Unfair Dismissal

Termination of Employment