ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020208
Parties:
| Complainant | Respondent |
Anonymised Parties | A Driver | A Building Company |
Representatives | In person | |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00026533-001 | ||
CA-00026533-002 | ||
CA-00026533-003 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977- 2015, Section 39 of the Redundancy Payments Acts 1967 - 2014 andSection 41 of the Workplace Relations Act, 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant was employed by the respondent as a Digger Driver since 1987. The complainant last worked for the respondent on or about the 14th August 2018. The complaints relate to alleged Unfair Dismissal and the non-payment of redundancy and minimum notice entitlements to the complainant. The complaints were submitted to the Workplace Relations Commission (WRC) on 25th February 2019. |
CA-00026533-001 – Unfair Dismissal complaint
Summary of Respondent’s Case:
The respondent contends that the complainant was not dismissed. The respondent stated that the complainant attended at the respondent’s offices on 14th August 2018 with a medical certificate declaring him unfit for work from that date until 25th September 2018. The respondent stated that the complainant advised them he would not be returning to work after his medical certificate had expired. The respondent outlined that a further medical certificate was submitted declaring the complainant unfit for work from 25th September 2018 until 20th November 2018. The respondent contends that while submitting the second medical certificate, the complainant again stated that he would not be returning to work after the expiry of his certified sick leave. The respondent stated that the complainant resigned from the employment, returned his keys and mobile phone and indicated on two separate occasions that he would not be returning to work. The respondent stated that the complainant’s position remains available to him if he wishes to return to work. |
Summary of Complainant’s Case:
The complainant stated that he was unfairly dismissed by the respondent. The complainant stated that the Digger he drove was unsafe and that it’s brakes had failed on a number of occasions. The complainant outlined that he gave the respondent three options; to repair the Digger, to dispose of the Digger or to “get rid” of the complainant from his employment. The complainant stated that on 6th August 2018 he was driving the Digger and the brakes failed. The complainant stated that he almost hit a car with a young girl in it and was subsequently certified as medically unfit for work due to the stress that the incident had caused. The complainant stated that he handed in medical certificates covering the periods between 14th August 2018 and 20th November 2018 and although he handed in his mobile phone and keys to the respondent, it was always his understanding that he remained in the employment albeit absent from work on certified sick leave. The complainant stated that he received his P45 from the respondent in December 2018. The complainant confirmed that he has remained unfit for work and is currently in receipt of Illness Benefit from the Department of Employment Affairs and Social Protection (DEASP). |
Findings and Conclusions:
Having considered the submissions of both parties, I find that following the unfortunate incident with the Digger on 6th August 2018, the complainant was left in a state of shock and having raised the issue with the employer, he outlined that he was not prepared to return to work as a Driver of that particular Digger until it was repaired and deemed to be safe. The complainant stated that between August 2018 and November 2018, the Digger was not repaired, and he did not return to work. The complainant stated that the Digger remained unsafe and he remained on certified sick leave at the time and until he received his P45 in December 2018. The complainant stated that he was in no fit state to return to work following the incident of the 6th August 2018 and submitted medical certificates to the respondent. Despite the complainant’s assertion that he wasn’t in any fit state to resign at the time, he confirmed on two occasions that he would not be returning to work. I find that by returning his mobile phone and keys to the respondent, the complainant clearly confirmed his intentions to resign. In addition, the respondent’s confirmation to the complainant that his position remained available to him, leads me to conclude on the balance of probabilities that the complainant resigned from his employment and was not dismissed as claimed. |
Decision:
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.
In all of the circumstances of this complaint, I find that the complainant resigned from his employment and was not dismissed. Accordingly, I do not find that the complainant was unfairly dismissed as claimed. |
CA-00026533-002 – Redundancy complaint
Summary of Complainant’s Case:
The complainant contends that he should have been paid statutory redundancy entitlements as his position became redundant when the Digger he drove was not roadworthy. |
Summary of Respondent’s Case:
The respondent does not accept that a redundancy situation exists in respect of the complainant’s employment. The respondent contends that there is work available for a Digger Driver within its organisation. |
Findings and Conclusions:
The complainant accepted at the adjudication hearing that there was work available for the Digger if it were roadworthy. The respondent stated that the Digger has been repaired and is safe to be driven. The respondent also confirmed that there was always work available for the complainant as a Digger Driver and that the role was never redundant. In cases of redundancy, it is the role that becomes redundant and is unrelated to the person occupying the role. In this case there is work available for a Digger Driver and on that basis, I conclude that the role of Digger Driver is not redundant in the respondent’s organisation. |
Decision:
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Having considered the submissions of both parties, I find that the complainant’s position did not become redundant and as a result, the complaint is not well founded. |
CA-00026533-003 – Minimum Notice complaint
Summary of Complainant’s Case:
The complainant is seeking minimum notice entitlements on the basis that he was dismissed from his employment. Given the complainant’s length of service with the respondent, the complainant is seeking eight weeks gross pay in lieu of notice entitlements. |
Summary of Respondent’s Case:
The respondent stated that the complainant resigned from his employment and in those circumstances, there is no merit in the complaint. |
Findings and Conclusions:
The circumstances surrounding the termination of the complainant’s employment have been addressed in Complaint Application CA-00026533-001 above. The decision in that complaint was that the complainant resigned from his employment and was not dismissed. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
On the basis that the complainant resigned from his employment and was not dismissed, the entitlement to notice does not arise. Accordingly, I find that the complaint is not well founded. |
Dated: August 15th 2019
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Key Words:
Unfair Dismissal, Redundancy entitlements, Minimum Notice |