ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00006406

Complaint:

ActDispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00008836-001 16/12/2016   Date of Adjudication Hearing: 12/09/2017 Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

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

Background:

The Complainant worked as a General Operative in a Segregated waste company since 2003. He had begun to experience some difficulties at work. In seeking to secure a confirmation of Saturday working, he had cause to contact the Managing Director of the company from which a disagreement ensued which culminated in his termination of employment. He submitted that the Dismissal had been Unfair and sought Re-instatement. The Respondent disputed the Dismissal and described the circumstances as voluntary termination of employment. The Complainant had not secured continuous work since dismissal.

Summary of Respondent’s Case:

The Respondent disputed that a dismissal had occurred as alleged. The Complainant commenced as a general operative worker with the Respondent on June 1, 2003. The Respondent outlined that the Complainant had been treated very well during his employment. The Claimant had issued Personal Injuries procedures following an On-site against the company in 2015. On 16 January ,2017, The Managing Director of the Company, Mr MD responded to the claim of unfair dismissal: 1 Dismissal was denied. The Complainant was treated better than any other employee on site. 2. Following a 5-day absence due in stress, the complainant was advised of the Company support services of Medical Doctor and Occupational Health services. He did not avail of these. 3.The Company had no issue with the parallel proceedings on Personal Injuries. That was a matter for the Insurer. 4. Mediation had been attempted in relation to the work environment on May 6, 2016 but the Complainant had not co-operated. Three follow up dates of 27 may, 8 June and 10 June 2016 were cancelled. 5 The Complainant called Mr MD on 24 June 2016 and signalled his intention to return to work the next day but that his Supervisor had stated that as the roster was complete, he wasn’t needed. The Complainant then screamed down the phone that he was “going to get “another employee, Mr A. When Mr MD tried to reason with him, the complainant told him that he wasn’t coming back to the job, that he was sick of it. On seeking clarification of the complainant’s intentions on whether he was resigning? he was informed in stark language that he was. Mr MD accepted his resignation and hung up. 6 Mr MD called the local Garda station and reported the incident of intention to do harm. 7. Mr MD stated that he had known the complainant all his life and had always looked out for him. It was never his intention that he would leave his position or be let go from his employment. Mediation was introduced to seek an amicable arrangement. Mr MD gave evidence on the day of hearing. He outlined that he operated a segregated waste company and employed 55 people, many of whom had been with him from the beginning. The Complainant had worked over various sites and had some difficulty with others but not with him. He had made a concerted effort to organise mediation with an external Mediator to “get things back to normal”. He felt things were dragging on and the complainant turned down three appointments. A room was booked at the local GAA Hall and the complainant did not turn up. He stated that he was aware of the pre-existing Personal Injuries claim from December 2015, but this had not caused an operational upset. He outlined that he was unaware of an Interpersonal difficulty between the complainant and Mr A, in advance of June 24. He understood that they had previously been friendly and travelled in the same car. He was subsequently aware that a meeting had been co-ordinated on site of all the lads in a bid to investigate difficulties. He recalled receiving phone call from the complainant around 4pm on 24 June, 2016.He informed him that he was ready to return to work. The Complainant had been required for safety training in the Friday. The Complainant started to give out about Mr A and began to threaten him over the phone. He told Mr MD that he could “stick his job……” Mr MD told the hearing that Mr A was 6ft in height and well built. He had provided cover while the complainant was on stress leave and remained in the respondent employment. During cross examination, Mr MD confirmed that the phone call was of 2.5-3 minutes in duration. He confirmed that issues had arisen with the complainant’s contract and the start date had not been sorted out. He had signed the contract on behalf of the company. He confirmed that he had sent the letter of acceptance of resignation on Friday, 24 June, 2016.In response to Counsels questions on whether this was a reasonable position to adopt on foot of a 13-year employment history? he responded by stating that he had not asked the complainant to resign that is why he did not call him back. He denied that he had been unreasonable as the complainant had roared down the phone. He was disappointed that mediation had not worked but had genuinely tried to resolve matters. Mr MD confirmed that the complainant’s resignation was the first resignation the company had received. In response to Counsels question on whether there was room back in the company for the Complainant, he confirmed that there was room. Evidence of Mr B (Foreman) Mr B confirmed that he had been the Complainants foreman. He had not received any complaints from him regarding Mr A, who was a casual worker working one day a week. He confirmed that he had been a witness to the call of June 24, 2016 and heard the complainant state that he would” sort Mr A” as he didn’t know who he was messing with. He confirmed that the complainant had stated “stick your job…….”. During cross examination, Mr B confirmed that he was aware that the complainant did not want to talk to Mr A in the work setting, but they didn’t work together. He did not have cause to raise this with Mr MD. He believed that it was up to themselves to sort it out. He didn’t want to take sides. He was aware that the complainant provoked Mr A by coming up to him singing. Mr A had not replaced the complainant. There were two temporary workers there. The Sick leave protocol dictated that employees call him when coming back to work. He did not know that the complainant was going to call Mr MD in relation to the roster. He didn’t have any involvement in the resignation. The phone call was of 3-4 minutes’ duration. The Respondents Solicitor raised issues on the shortfall in the Complainants efforts on establishing loss and mitigation. The Respondent accepted that the complainant had submitted his intention to leave his employment and subsequently withdrew it unilaterally. The Respondent accepted that a dismissal had occurred in the case.  

Summary of Complainant’s Case:

Counsel for the complainant outlined that this was his first and only job in the workforce. There were some background issues in the complainant’s employment and he had outlined these difficulties and had sought to resolve them. He had a period of stress leave in April 2016. The Complainant gave evidence that he was 31 years old and worked for the Respondent as a General Operative. He had sustained a back Injury at work and had difficulties getting paid in November 2015.He had some instances of lateness due to the bad weather and received a written warning in a letter dated 28 March, 2016.He understood that he had accepted this. He had begun to experience difficulties with Mr A who was picking on him, insulting him and he informed Mr MD that he couldn’t work with him. There had been some changes at the company and he was hopeful of getting an increase in hours up to 48 but he was lucky to get 40 hrs. He was sick on stress leave during April 2016. He attended mediation on May 6, 2016, but did not discuss Mr A. He felt the mediation wasn’t going anywhere. He also felt that his Solicitors letter on the personal injury claim in May 2016 had resulted in a “coolness “towards him and things weren’t the same. He rang Mr B on Friday, 24 June to organise his return to work the next day. He was informed that there was no work for him as they weren’t aware when he was returning to work. He then rang Mr MD and asked him to explain. He mentioned that he was stressed out regarding the work environment and he couldn’t work with Mr A. The Complainant denied that he had given Mr MD to understand that he wasn’t coming back to work. He explained that he was frustrated with Mr A but had not indicated that he intended on going to his home to harm him. Mr MD stated that he was accepting his resignation. The call occurred on Bluetooth in his car and he described it as a heated conversation overhear by his partner. He confirmed that he had” lost the rag” on the call. He attended his GP the next day as he was “stressed out”. He did not inform Mr MD that he was going to the Doctor. He forwarded the Drs letter to his work, which reflected hi stress and the recommendation for improvements in his working environment. He was distraught when he received the notification that his resignation had been accepted and tried to text Mr MD who advised him to contact his Solicitors. During cross examination, the complainant confirmed that he had not lodged a letter of complaint regarding Mr A. He confirmed that he had done some casual and part time work since he finished work for the respondent. He gave evidence of loss and mitigation. He disputed the Respondents account that a warning had not been placed on his file or that his pay was cut. The Complainant confirmed that he was sick on June 24 and had texted Mr B regarding same. He usually worked on Saturdays once or twice monthly and he understood that he was due to start work at 07.30 hrs. He disputed that the company first learned of the sick leave at 3.45pm on that day. He outlined the sequence of the phone calls. He was informed by Mr B that he was not needed on the Saturday due to a roster change. he reaffirmed that he had spoken with Mr MD and told him to get Mr A sorted. He denied telling Mr MD that “he could stick his job….” He confirmed that he wasn’t giving up the job and that he had not resigned. The Complainant contended that Mr A an Mr B were trying to get him out of the company. The Complainant referred to a lot of interpersonal difficulties at work and had considered a redundancy during 2015. The Complainants partner Ms A, was with him on 24 June when he wasn’t well and on his way to the chemist. She wasn’t present for his call with Mr B but could hear the call with Mr MD. She observed that he was stressed and not himself. She denied that he had threatened Mr A on the call. She recalled him asking MR MD to sort it out before I go back up there. She knew that he visited his GP and sent in a sick note. She had a recollection of the complainant receiving the letter on his resignation on the Monday but he had not resigned. During cross examination, Ms A confirmed that he had flu on 24 June ,2016. The Respondents representative put a disparity in her recollection of the phone call and that of the complainant’s   which she disputed. Counsel for the Complainant submitted that having regard for the facts of the case where the Complainant furnished a sick certificate dated June 25, 2016, this served as corroboration that he had not resigned. The Complainant sought re-instatement as his preferred remedy.  

Findings and Conclusions:

I have considered the submissions both oral and written in this case. The Complainant worked for 13 years for the Respondent. No issues appear to have arisen until 2015. It seems that the company was going through some operational changes which did not sit easy with the complainant. While considerable conflict in evidence exists surrounding the inter party phone calls on June 24, I found that both parties had an understanding that the working relationship between the complainant and the company had taken a turn for the worse in 2015. I accept the evidence given by Mr MD that the “coolness “if such is as it was, was not directly attributable to the Personal Injury claim but rather to operational objective issues of lateness and attendance issues. I considered the documents surrounding the circumstances of an attempt to place a warning on the complainants file in March, which was reviewed and interrupted by Mr MD in his letter of 9 April, 2016. I was struck by the complainant’s evidence that he believed that he had accepted the warning when his letter of April 5 indicated that he had lodged an appeal. This matter was then overtaken by the “Mediation process”. I found this process to be of interest as the invitations to attend were couched in language surrounding an issue at work dated March 21, 2016 rather than pure Mediation. It is of significant note that the word mediation was not mentioned in these invitations. This may have gone some way to explaining the complainants lack of enthusiasm for this process. I was particularly struck by the complainant’s silence surrounding the impact that Mr A was having on his working life. Given his longevity and familiarity in the workplace, I found it unusual that he had chosen to keep this important concern largely to himself at work. I have found that the absence of a formal approach towards resolution worked against him. I accept that the Respondent offered the Complainant the support of the Company Doctor and Occupational Health services. It is regrettable that these services were not utilised as Occupational Health services traditionally have scope to make far reaching recommendations in the case of workplace stress. I appreciate that this was the complainants first position after School, however, these were services designed for his welfare and benefit. I also note that the provision of a contract of employment was delayed to May 2016 and this was equally unhelpful. This brings me to the phone call between Mr MD and the complainant, in the late afternoon of June 24, 2016. The precursor for the call was to establish the Complainants return to work post one day of uncertified illness. I have considered both party’s recollection of the call and accept that the complainant had not intended on resigning prior to the call on June 24. It is a core aspect of the case that MR MD maintained that this was his first actual staff resignation albeit in extraordinary circumstances. I note that the Respondent did not have an identifiable procedural framework around Resignation . I found Mr MD to be a very clear witness who was very troubled about the call some 14 months later. I found the Complainant to be very clear also and equally troubled. However, the conflict in the evidence is pronounced. I have resolved the conflict in relation to the complainant’s utterances on MR A in favour of the Respondent and while I accept that the Complainant directed profound profanities regarding his job towards Mr MD on the call, he did not actually tender his resignation. This approached is indeed backed up by the provision of a Medical certificate dated the next day and several written affirmations of continued employment made by his Solicitor for several weeks after the fact. I have also found that the complainant was covered by a notice clause of 6 weeks in his contract which was not realised. I had difficulty in the way   the Respondent refused to engage with the complainant in the wake of the “flared up phone call”. I appreciate that the call was shocking, but it was unprecedented and was worthy of mutual reflection prior to notification of termination of employment. I found the latter act to be precipitous. I have found a somewhat parallel backdrop of a disputed resignation in an EAT case of Doyle and Pat the Baker UD/862/15, where Dermot Mc McCarthy SC remarked in finding an Unfair Dismissal: “When an employee gives notice and the employer says leave now, that is technically a dismissal, as the employer is thereby bringing the employment to an end earlier than the employee intended. The Tribunal notes that the employment contract did allow the employer to pay in lieu of notice, but despite that provision the fact remains that the employer brought the employment to an end instantly rather than at the end of the notice period “ Section 1 of the Unfair Dismissals Acts 1977-2015 defines a Dismissal as: “dismissal”, in relation to an employee, means— (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or…….. Section 6(1) of the Act outlines that a Dismissal will be considered an Unfair Dismissal unless there are substantial grounds justifying dismissal. In the instant case, the Respondent has accepted that a Dismissal took place and the Complainant has in turn submitted that it was unfair. For my part, I found that the phone call of June 24, while loaded with high temper from the complainant was met by pronounced shock from the Respondent. That shock lasted much longer than was reasonable and served as an obstacle to direct engagement in a “cooling off period” with the Complainants chosen representative. For all the above reasons, I have found that the Respondent acted outside the range of reasonableness in terminating the employment, I have found that the Complainant was unfairly dismissed on June 24, 2016. I have also found that he made a marked contribution to this outcome.  

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I have considered the stated preference of the Complainant for the redress option of Re-instatement. While I understand that the jobs market has not generated a job of equal value as the job he held, I was struck by the good faith expressed by the Respondent that he was prepared to accommodate the complainant. However, I do not find this a practical option now. Instead, having considered the evidence on loss and mitigation, I find that compensation is the most practical option of redress. I have found that the Complainant made a marked contribution to the dismissal. I order the respondent to pay the Complainant the sum of €15,000 in compensation for the Unfair Dismissal.  

Dated:   18/01/2018

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Key Words: Claim for Unfair Dismissal