Complainant

Respondent

Anonymised Parties

A Mechanic

A Go Karting Facility

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-00009608-001

09/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00009608-002

09/02/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00009608-003

09/02/2017

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

CA-00009608-004

09/02/2017

The complainant was employed by the respondent as a mechanic from August 2014 until 15th August 2016. The complainant was paid a salary of €22,075 per annum as per the P60 for the 2015 tax year. The complainant contends that he was unfairly dismissed and is seeking compensation in that regard.

The complainant stated that since the commencement of his employment, he did not receive any contract of employment, employee handbook or disciplinary and/or grievance procedures. The complainant stated that he had a positive work record and had no issues in the employment until August 2016.

The complainant stated that on or around the 11th August 2016 another employee made a complaint of bullying and harassment against him. The complainant stated that senior management did not follow any appropriate investigation procedures and instead said to the complainant on 15th August 2016 after a second complaint was received; “Give me your keys. Get your stuff. Go home. Don’t come back here.” The complainant stated that the respondent did not ask for his version of events or give him the opportunity to defend himself against the allegations made by his colleague. Instead, the complainant contends he was summarily dismissed on that date.

The complainant stated that he received a letter from the respondent dated 24th August 2016 confirming his dismissal and stating that; “at present we no longer have work for…. [complainant’s name].

The complainant contends that the burden of proof rests with the respondent in cases of alleged unfair dismissal and that it must act reasonably and apply fair procedures when dismissing an employee for issues relating to conduct. The complainant also stated that the respondent must apply fair procedures and give reasons for its decisions and apply sanctions that are appropriate to the incidents complained of. The complainant cited a number of legal cases in support of his position.

The complainant’s case is that the respondent did not meet its obligations in how it treated the complainant and the procedures it followed which ultimately led to his unfair dismissal.

The respondent contends that the complainant was not dismissed. The respondent stated that the incident on the 11th August 2016 occurred as a result of the complainant driving erratically and placing two other colleagues in danger of being hit by the Go Kart that he was driving. The respondent stated in evidence that this first issue was dealt with informally and did not result in any disciplinary action against the complainant. The respondent stated that the second incident on or around 14th August 2016 resulted in an attempt by management to initiate an investigation into what had occurred.

The respondent stated that it had received a second complaint in relation to how the complainant had spoken to the colleague who had made the first complaint. The colleague in question stated that he was in fear for his own safety on 14th August when he spoke to the complainant. He stated that the complainant became more and more aggressive towards him and that he was in fear that he would be assaulted by him. The colleague stated that he left the premises and reported his concerns to management.

The respondent stated in evidence that it attempted to arrange an investigation meeting for 3pm on 15th August 2016 in relation to what had happened. The respondent submits that a company director (Mr A) was speaking to the complainant about arranging a meeting for later that day. Mr A’s mobile phone rang and while he answered the call, the complainant went into the garage, made a loud noise and then walked around the premises holding his face as if he had been assaulted. The complainant is alleged to have returned and said to the director “what did you f**king hit me for, and then said to him “now you can see what that looks like on CCTV.” The respondent stated that the complainant then got into his own car and left the premises a few minutes later.

The respondent stated that the complainant then contacted the other Director (Mr B) and informed him of what had happened and that he was leaving his employment. The wife of MR B, who looks after the accounts etc, then engaged in a number of telephone conversations with the complainant in relation to reconsidering his decision to leave. The respondent stated in evidence that the complainant sought a letter for the Department of Social Protection to confirm that he no longer worked for the Company. The respondent agreed to provide a letter to the complainant that he no longer worked for the Company and the complainant agreed to provide a letter of resignation to the respondent. The respondent stated that it provided the letter to the complainant for the Department of Social Protection but the complainant did not provide the letter of resignation as agreed. The respondent outlined that the complainant stated he could not put it in writing that he had resigned on the advice of his wife. The respondent stated that the letter in question dated 24th August 2016 is relied upon by the complainant as a letter of dismissal which is refuted.

In relation to this complaint I find as follows:

The complainant contends that he was dismissed unfairly. The respondent contends that the complainant was not dismissed at all.

Both parties gave evidence concerning the events that led to the cessation of the complainant’s employment.

In relation to the first incident of the erratic driving, I have reviewed the CCTV footage and I can understand the concerns outlined by the complainant’s colleagues in relation to his driving. The complainant may well have been in complete control of the vehicle but his colleague was obviously uncomfortable with his actions. The complainant accepted that he was “messing” but was not trying to deliberately hit his colleague with the Go Kart.

The complainant accepted that the Director, with whom he was speaking when the Director’s mobile telephone rang on 15th August 2016, did not assault him and his comments relating to seeing what the incident looked like on CCTV were in the context that he had been wrongly accused of driving erratically on CCTV and now the Director was being wrongly accused of assaulting him which could also be misinterpreted on CCTV.

In relation to the letter for the Department of Social Protection, I find that on the basis of the evidence presented, the respondent agreed to provide a letter for the complainant and he agreed to submit a letter of resignation. I find that the purpose of the letter was so that the complainant could make a claim for Job Seekers benefit or a similar payment. The claim would most likely be subject to a period of disallowance if the complainant left work voluntarily but could also be subject to a disallowance if it transpired that the complainant had been dismissed.

In relation to the totality of the evidence presented, I find that the respondent gave a clear and honest account of what had occurred. The complainant may well have claimed that the respondent did not apply fair procedures but its first attempt to do so on 15th August resulted in a somewhat bizarre situation that resulted in the complainant driving away. In his evidence the complainant accepted that he was messing about while driving the car and that he had made up the story of the assault by the director. In those circumstances, I find the respondent’s evidence on all of the issues to be more credible.

I accept the evidence of the respondent that it made significant efforts to see if the complainant would reconsider his resignation yet he would not change his mind.

In all of the circumstances of this case I find that the complainant resigned from his employment, by leaving the premises on the 15th August and by his refusal to reconsider his position when offers were continually made to him over an eleven-day period from 15th August until he collected his letter on 25th August 2016. Accordingly, the claim for alleged unfair dismissal cannot succeed.

Having considered the written and verbal submissions of the parties and all of the evidence adduced at the hearing of this complaint, I declare that the complaint of alleged unfair dismissal is not well founded.

The complainant stated that he did not receive a written statement of his terms and conditions of employment in contravention of the Terms of Employment (Information) Act, 1994. The complainant is seeking the maximum compensation in relation to the breach.

The respondent accepts that it did not comply with the Act in relation to providing a written statement of terms and conditions of employment to the complainant.

On the basis of the evidence of the parties on this issue, I find that the complaint is well founded.

The respondent is directed to pay the complainant €850 in compensation which equates to approximately two week’s gross pay for its failure to comply with the provisions of the legislation.

The complainant is seeking that he be paid his notice entitlements in accordance with Section 4 of the Minimum Notice and Terms of Employment Act, 1973. The complainant contends that on the basis of his service with the respondent he is entitled to one weeks’ pay in lieu of notice in circumstances where the respondent summarily dismissed him without good reason.

The respondent stated that the entitlement to a notice payment does not arise as the complainant resigned from his position.

The issue of whether the complainant was dismissed or whether he resigned has been the subject of Complaint No: CA-00009608-001 above. The decision in that case was that the complainant resigned from his position in the respondent organisation.

In circumstances where the complainant resigned from his employment, the entitlement to notice does not arise. Accordingly, the complaint fails.

Having considered the submissions of both parties to this complaint, I declare that the complaint is not well founded.

Unfair dismissal, fair procedures, resignation, notice entitlements