Complainant

Respondent

Parties

A Courier

Delivery Providers

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-00004270-001

06/05/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00004270-002

06/05/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00004270-003

06/05/2016

The Complainant is from Romania and was engaged with the Respondent Courier company from the beginning of August 2014. It appears that the Complainant was a good and reliable employee and worked hard with the company. There are about 48 employees in this company and whilst the Respondent witnesses sought to describe it as a low key family run business, the numbers are such that a bit more structure might be needed, especially in the area of Human Resources.

A non-scheduled and casual conversation between the Complainant and one of the company co-owners (Mr. McC) gave rise to a concern in Mr. McC that the Complainant was not as happy with the Respondent company as the Management had believed he was. In particular, the Complainant stated that he was finding the manual part of his work to be causing him physical difficulty and he also appeared to be having difficulty with a fellow colleague – though this was not elaborated on.

The evidence offered by all the parties on how this meeting was handled is different. Nobody appears to have taken a contemporaneous note and there is a conflict on whether or not the Complainant walked out of the meeting in anger or walked out of the meeting in anger having already proffered his resignation. I cannot reconcile the accounts given. There are non- contemporaneous accounts prepared by the members of the management but these were prepared primarily for the hearing in the WRC. These accounts suggest that there was some animosity between Mr. McC and the Complainant – this amounted to Mr. McC ignoring the Complainant in the workplace. Another curious feature of the facts presented is that there is doubt as to the exact date this meeting took place on – either the 26^th of January or the 4^th of February 2016.

In any event, it does seem to be common case that within a day or so of this meeting, that the same Mr. McC contacted the Complainant by way of the speakerphone on a colleagues phone (OS) and in the course of that interaction the Complainant was asked to leave his belongings and leave the workplace.

The Complainant has made the case that Mr. McC was annoyed with him for commenting on the fact that the lifting of pallets was giving rise to physical difficulties with the Complainant. Having reflected on the meeting, the Complainant says that Mr. McC was deliberately trying to wrong foot the Complainant and it seems that the Complainant and Mr. McC did engage in some sort of a row which concerned an event that had happened some six months earlier and which had not formed the basis of any previous enquiry and the raising of this historic issue at this time was arbitrary, unforeseen and unfortunate. The Complainant admits he left the meeting after words were exchanged but says he did not resign – as evidenced by his ongoing presence in the workplace (until that is Mr McC contacted him through a colleagues phone in the manner mentioned).

The Respondent introduced evidence offered by the Complainant’s colleague (OS) who met the Complainant directly after the so called meeting. His memory of what the Complainant said to him was that the Complainant indicated he would be leaving after two weeks Contract. However it was not clear whether the Complainant was saying this by way of bravado i.e. I don’t need this job and I am leaving. Or whether it was said because he had in fact resigned his position in the course of the meeting.

In any event it is not good practise to accept an offer of resignation or to interpret a resignation from an action taken (such as walking out of a room) when emotions are as high as they clearly were at the meeting arranged by Mr. McC.

Any sensible and reasonable person would allow for a “cooling off” period where a resignation has been given in the course of a heated argument. And I do believe it was a heated argument that seemed to come from nowhere at all. I cannot be sure that the Complainant was in some way goaded into being confrontational or whether he worked himself up into this state. There was certainly no pre-history of difficulty between the parties. The other three witnesses had shaken hands with the Complainant at the meeting and then without preamble Mr. McC and the Complainant got into a row which resulted in the Complainant either terminating his own employment then and there or having terminated forcibly by Mr. McC the next day and by telephone.

If the Complainant   resigned his position in the course of a row (and where the situation was perceived to be four against one) then I do not accept that the Respondent can suggest that this was a rational and well thought through decision. If on the other hand the Complainant did not resign and simply walked out of this meeting then the follow up call asking him to leave his stuff and leave his job could not interpreted as anything other than as an unreasonable overreach.

I have been asked to interpret the failure to engage with the Complainant’s Solicitor and or the Complainant himself after receiving a Solicitor’s letter on the 10^th of February 2016 as demonstrative of the attitude of the Respondent – and in particular the co-owner MrMcC had towards the Complainant. This attitude the Complainant says amounted to a willingness to be well rid of the Complainant.

On the other hand the Respondent has asked me to consider that some ongoing communication did occur though I could not be overly impressed that the use of Mr. OS as a go-between is satisfactory, especially where Mr. OS is not a fluent speaker of the language any more than the Complainant is. The emphasis in this dialogue appears to have been in connection with Notice and Annual leave.

I have carefully considered the evidence adduced in the course of two days of hearing. I heard from all four members of the management team who attended the meeting as well as the Complainant himself. I additionally heard from Mr. OS and had the benefit of a translator for this purpose.

I am absolutely satisfied that the Complainant’s employment was terminated by his employer Mr. McC who telephoned the Complainant via a colleague’s phone within a day or two of the meeting described and through a speakerphone invited the Complainant to leave his employment and return items which had a security risk. I find the manner with which the Complainant was dismissed to have been unreasonable and unfair and in the circumstances I am satisfied that the Complainant was unfairly dismissed.

Findings:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.

Taking into account the evidence in relation to mitigation and the fact that the Complainant himself appears to have allowed a situation escalate I award the Complainant the sum of €10,500.00

The Claims under the Payment of Wages Act and the Organisation of Working Time Act were withdrawn in the course of the hearing on the understanding that the figures involved got rolled into the final paycheque to be received by the Complainant.