UDD1918

Mr. Glujic, ‘The Complainant’, started work for company, ‘The Respondent’, in April 2015 as a maintenance worker for the company, which is a property management company. On a date of either 11 or12 April 2017, the Complainant entered an apartment managed by the Respondent using a master key. The circumstances are in dispute. The Complainant asserts that he did so because one of the tenants was a fellow Croatian national with whom he was friendly and who had given him permission to enter. The Respondent states that Mr Murphy Sr. received a highly distressed call from a female occupant of the apartment, Ms. A, to the effect that there was a drunken stranger in the apartment. It is accepted by both parties that the Complainant left the apartment without further incident.

The Complainant returned the master key the following day, thereby confirming to the Respondent that he was the person who had entered the apartment. What happened subsequently at two meetings on 18 and 20 April 2017 is in dispute. The Complainant alleges that he was told by Mr Murphy Jr. at the first meeting that there was no further work for him, in light of the incident and that he was, therefore, summarily dismissed. The Respondent states that the Complainant resigned voluntarily to avoid becoming the subject of a Garda complaint.

The Complainant lodged a claim under the Unfair Dismissals Acts with the Workplace Relations Commission, (WRC). He did not attend the hearing at the WRC, as his representative was having difficulty in contacting him. The Adjudication Officer made a finding that the claim had failed ‘for lack of prosecution’.

The Complainant appealed this to the Court.

Preliminary issues

The Complainant’s submission referred to claims under the Organisation of Working Time Act. However, this Act had not been referenced on the appeal form and it is the Court’s determination that the matters were not, therefore, before the Court.

The Court gave consideration to the form of the Adjudication Officer’s decision.

The Complainant’s representative drew attention to the text of the Adjudication Officer’s decision, which stated;

‘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.

The complaint fails for lack of prosecution’

The Complainant’s representative stated that it is clear that the Adjudication Officer made a decision, in accordance with the requirements of the relevant sections as quoted by him in his finding and, therefore, that decision was properly subject to an appeal to the Court.

The Respondent’s representative stated that they would abide by the Court’s judgement on the matter.

Having considered the matter and the arguments adduced, the Court agreed to hear the appeal.

Burden of proof

Ordinarily, in cases under the Unfair Dismissals Act, the burden of proof rests with the employer. Where, as in this case, the fact of dismissal is in dispute, the burden of establishing that a dismissal occurred shifts to the Complainant. Only if the Complainant establishes that he was dismissed does the burden shift back to the Respondent to establish that the dismissal was fair.

Complainant’s arguments

• 
  1The Complainant agreed that he entered the apartment and he did use the master key to do so. However, he did so with the express permission of his friend who was a tenant of the apartment, as he had done on many previous occasions. He let himself into the apartment on 11 April 2017, not on 12 April 2017, as stated by the Respondent. He knocked on the door first and when there was no reply, let himself in using the master key. Once inside, he met his friend’s sister, who raised no issue and who introduced him to another person there. He was not, as alleged, drunk.

  2The following day the Maintenance Manager, Mr. Damien Scanlon asked him for the master key, which he returned.

  3He returned to work following the Easter break on 18 April 2017 and was met by Mr. Scanlon and Mr. David Murphy Junior. Mr. Murphy told him ‘I’ve no more work for you. You went into an apartment without permission’.

  4Mr. Murphy went on to tell the Complainant, who was going on holidays to Croatia a few days later, that if he gave him the key to his apartment, (the Complainant rented an apartment from the Respondent), he would give him two weeks’ holiday pay and a good reference and, if not, he would have no money to pay the rent and the Respondent would give him notice.

  5The following day, Mr. Scanlon repeated this offer and Mr. David Murphy Senior, told him that he would not be able to rent another apartment because of the bad reference he would get if he did not surrender his key.

  6Under fear of these threats, the Complainant agreed to the termination of his employment and surrendered his apartment.

  7Subsequently, the Complainant and his wife sought assistance from Threshold.

  8In subsequent correspondence with representatives of the Respondent, the Complainant’s Solicitor was advised that following a tenant’s report, an immediate investigation was commenced regarding the ‘apparent misuse of the master key’.

  In fact, no such investigation took place prior to the summary dismissal of the Complainant.

  9No notes or minutes of any investigation were ever put to the Complainant.

  No attempt was ever made to establish the truth of his assertion that he had permission to enter the apartment and no contemporaneous statement was taken from the person who had made the alleged complaint, Ms A. No such statement was made until 16 October 2017, a delay which has not been explained. The Complainant was never given an opportunity to bring a colleague to any meeting or to cross examine Ms. A.

  10The Complainant was intimidated out of his job and his tenancy, having been told directly that there was no more work for him, by threats, including a threatened report to the Gardai.

  11The Complainant was given no opportunity to defend himself and was never notified of any investigatory or disciplinary processes and, having no contract, the Complainant was not aware of the Respondent’s disciplinary procedures.

  12The Complainant’s right to fair procedures was not upheld.

  Respondent’s arguments

  1.On or about 12 April 2017, Mr. Murphy Sr. received a very distressed call from a tenant that a stranger under the influence of alcohol had used a master key to enter her apartment.

  2.The following day the Complainant attended work as normal and was asked to return the master key, which he did. The Respondent’s policy regarding the master key was clear to employees who knew that it should only be used between 8am and 5pm, not at around 10pm as in this case, only with the express authority of the Respondent and the tenant, (if contactable), and it should, otherwise, be locked away.

  3.The Respondent commenced an investigation and the Complainant was invited to a meeting on 18 April 2017, at which he was informed about the seriousness of the matter and told that further investigation would be required, perhaps with the assistance of An Garda Siochana. The Complainant offered to resign. The Respondent suggested that he take time to reflect. He confirmed his resignation on 20 April 2017.

  4.In his submission, the Complainant accepts that ‘he agreed to the termination of his employment’. While the Respondent does not accept the description of the circumstances, this confirms the fact of resignation.

  5.Once the Complainant had resigned, it was not necessary to progress the investigation any further.

  6.No pressure or intimidation was put on the Complainant.

  7.The purpose of the meeting on 18 April 2017 was clear. The Complainant knew what it was about, having been asked to return the master key.

  8.The Complainant’s version of events is not consistent with the call made to Mr. Murphy Sr by Ms. A.

  They are also inconsistent with the details on the Complainant’s WRC Complaints Form in which he states that he ‘erroneously startled’ the occupant of the apartment.

  9.The Complainant was not dismissed and was not constructively dismissed. He resigned his employment.

  10.Without prejudice to the Respondent’s position that no dismissal occurred, the Complainant would be entitled to no compensation or minimal compensation even if a dismissal had occurred, given his contribution to any such dismissal.

The Respondent entered a statement from Ms. A, who was not called as a witness and, therefore, could not be cross-examined on her statement.

Witness evidence

Dejan Glujic, the Complainant

Mr. Glujic gave evidence under questioning and cross examination, as follows;

• 
  1.He was not drunk when he entered the apartment. At most, he had one beer.

  2.He had permission to enter and had done so previously.

  3.He met a woman there that he did not know. He introduced himself. She was not distressed.

  4.There was no investigation. He was told by Mr. Murphy Jr at the meeting on 18 April that there was no more ‘job’ for him. He had not been aware in advance that his job was at risk.

  5.He did not resign at the meeting on 18 April.

  6.He was threatened at that meeting.

  7.He accepted that he was not supposed to use the master key in the circumstances.

  8.He cannot explain why his form used the word ‘startled’. Ms. A was fine.

  9.He did not shake hands with the two Mr. Murphys when he left, only with Mr. Scanlon, who helped him with storage of his property.

  10.He tried to explain that he had permission to enter the apartment but nobody listened.

Mr. Murphy gave evidence as follows;

• 
  1.On 12 April 2017, while in the city centre, he received a call from Ms. A, who was screaming in panic that there was a drunk stranger in her apartment.

  2.He suspected the Complainant as he lived in the complex and had access to the master key.

  3.He contacted his son and Mr. Scanlon. He believes this was by text. It was agreed to sort the matter the following day.

  4.He took no active role in the meeting on 18 April.

  5.His son was not pacing up and down in fury and did not tell the Complainant that there was no work for him.

  6.The Complainant offered to resign rather than have the matter investigated by the Gardai.

  7.He met the Complainant in the car park on the following day and had a discussion about the Complainant’s tenancy and did not discuss his employment. He wrote off rent arrears.

  8.He asked Ms. A for a written statement at the time but did not follow up until much later.

• 
  1.His statement said that he rang Mr Scanlon and his son on 12 April. He amended that to state that he texted them

  2.He believes that he mentioned the Gardai, but he did not threaten this as this was not his place to do so. His son owned the company.

  3.Others had commenced the investigation before the meeting on 18 April.

  4.His memory of the phone call from Ms. A was clear.

  5.He had never previously heard the explanation of the Complainant until this hearing.

  6.The policy regarding the master key was known to all staff. He accepted that it was not in writing and that there was no written document that barred the Complainant from entering the apartment concerned.

  7.The Complainant offered to resign at the meeting on 18 April but his son told him to take time to reflect.

  8.He accepted that the Respondent’s statement asserts that the Complainant did not respond the following day but he did bump into him and they did discuss the tenancy. They did not discuss his employment.

  9.He accepted that there was no documentation or notes and that there was no subsequent correspondence and he acknowledged that things might have been done differently.

  10.He acknowledged that he was prompted by the proceedings to follow up contact with Ms. A, six months after the event to secure her statement.

Mr Scanlon gave evidence as follows;

• 
  1.He is the Maintenance Manager and his job was to set out the Complainant’s tasks.

  2.On 12 April 2017 he received a text from Mr Murphy Sr. regarding an intrusion into an apartment by somebody with a master key.

  This text said that Mr Murphy thought the person concerned was the Complainant.

  3.He met the Complainant the following day and took back the master key. He had reason to speak to the Complainant previously about his use of this key and had told him that the Complainant was not to take the key without his permission.

  4.The key was kept locked securely.

  5.He denied any recollection that Mr. Murphy Jr had told the Complainant at the meeting on 18 April that there was no more work for him. He knew Mr Murphy and he knew that he would not say this. His recollection was that the Complainant had acknowledged that he should not have done what he did.

  6.Mr Murphy Jr had discussed calling the Gardai. The Complainant had replied that if he needed to resign, he would do so.

  7.Mr Murphy told him to take time to reflect.

  8.He tried unsuccessfully to contact the Complainant the following day.

  9.At a meeting on 20 April, the Complainant resigned.

  10.He gave the Complainant help in storing his belongings.

• 
  1.His working relationship with the Complainant had been good.

  2.The Complainant had been told from when he started what were the rules regarding the master key.

  3.He acknowledged that this had not been done in writing.

  4.He acknowledged that his witness statement said that he got a call from Mr. Murphy Sr on 12 April and that he now said that it was a text. He no longer had the text message.

  5.When the Complainant gave the key back on 19 April, he acknowledged that he should not have entered the apartment and he apologised.

  6.He stated that the Complainant had not mentioned having permission to enter the apartment.

Mr. Murphy gave evidence as follows;

• 
  1.The master key was for use, if needed, by staff, otherwise it was to be left locked up and the Complainant was definitely aware of this.

  2.On the night in question he was abroad, he believes that he spoke by telephone to his father about the incident, that he instructed that the master key be retrieved from the Complainant and that he stated they should deal with the matter upon his return after the week-end.

  3.On that night, his father was very sure that the Complainant was the relevant person.

  4.He did not tell the Complainant that there was no work for him at the meeting on 18 April. He said that he emphasised the seriousness of what had occurred and the potential consequences for the company.

  5.The Complainant had asked him not to inform the Gardai and had offered to resign.

  6.The Complainant confirmed his resignation at a meeting on 20 April. He handed his apartment keys back. He gave the Complainant a reference, they shook hands and he agreed that they would help him with storage of his belongings.

  7.He had no problem in waiving about €2k in rent arrears due from the Complainant as he wanted to resolve the matter.

• 
  1.The Complainant was a good worker. Apart from some issues about drinking at lunch time, about which he had spoken to him, there had been no major problems with his work.

  2.He was not sure if the Complainant had a contract but he had been unable to find one.

  3.In 2017 his company did not have a written disciplinary procedure. That had since been rectified.

  4.He recalled speaking to his father on 12 April 2017 about the incident concerned. He believes his father’s recollection that contact was by text only is mistaken.

  5.His father knew who had entered the apartment as the ‘girls’ there were terrified. He accepted that this was the first time that more than one woman was mentioned in this regard but emphasised the onus on the company to maintain trust and cited an incident in the complex previously where a woman was attacked in her apartment and injured badly. In those circumstances, with a distressed tenant or tenants, the company had to treat this matter with the utmost seriousness.

  6.He did not feel that much investigation was required as the Complainant had admitted entering the apartment and even if he thought he had permission to do so, he should not have used the master key.

  7.He acknowledged that he had not made clear to the Complainant that he was entitled to be accompanied to the meeting on 18 April but stated that the Complainant knew the purpose of the meeting.

  8.He acknowledged that the Complainant’s job was at risk at that point but stated that no decision would have been taken without speaking to him.

  9.He stated that he had asked the Complainant ‘what was he at?’

  10.The Complainant had apologised.

  11.He acknowledged that there may be some discrepancy as to whether he or his father mentioned the Gardai but he believes that he did so.

  12.He did not need to download camera footage as the Complainant admitted entering the apartment.

  13.He did not call the Gardai as this was mainly up to the tenant to do so.

  14.He accepted that earlier correspondence from the company’s representatives did not convey the full seriousness of the events.

  15.Although the Complainant had been an ’ok’ employee, he was happy to accept his resignation as he had taken the company’s key and mis-used it, putting the contract, and the jobs of staff, in jeopardy.

There is a total disagreement about whether or not the Complainant was dismissed or whether he resigned by agreement. The Complainant has not made a claim of constructive dismissal, so the Court need not consider the question of whether, if a resignation occurred, did it amount to constructive dismissal? For the Acts to apply there must either be a dismissal or a constructive dismissal. The Acts are not intended to cover circumstances where employment relationships are terminated by mutual agreement, for obvious reasons. Therefore, the Court need look no further in the instant case if it is determined that the Complainant resigned voluntarily.

There is no supporting documentation to consider in respect of the meeting on 18 April 2017. With the exception of one witness statement, by a witness that was not brought before the Court to give evidence, there is no documentation at all. The Court is left to base its decision on witness evidence in which there is a direct contradiction between the parties as to what occurred. Where there is a direct conflict of evidence and an absence of corroborative evidence, the Court will look to where the burden of proof lies. In this case, it rests with the Complainant. The Complainant must satisfy the Court that, on the balance of probabilities, he was dismissed.

In the absence of any significant evidence to corroborate either position, the question for the Court is whether or not the burden of proof has been discharged? In this regard, the Court has not heard anything that leads it to be so convinced. For this reason, the appeal fails.

Determination

The decision of the Adjudication Officer to find against the Complainant is upheld.

Signed on behalf of the Labour Court



Tom Geraghty
CH______________________
9th April 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Carol Hennessy, Court Secretary.