ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028962
Parties:
| Complainant | Respondent |
Anonymised Parties | A Driver | A Haulage Company |
Representatives | none | David O'Riordan Sherwin O'Riordan Solicitors |
Complaint:
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-00038643-001 | 25/05/2020 |
Date of Adjudication Hearing: 13/11/2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
In circumstances where the fact of dismissal is not in issue, the evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a dismissal of an employee was an unfair dismissal or not it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.
An Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 25th day of May 2020) issued within six months of his dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter.
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
Background:
This matter was dealt with by way of a remote hearing at a time of national lockdown arising out of the Covid pandemic. The parties were agreeable to the matter being heard in this format, and no technical or other issues arose in the course of the hearing. This is a claim for Unfair Dismissal which is alleged to have been summarily enacted in the course of a row which erupted unexpectedly in the workplace |
Summary of Complainant’s Case:
The Complainant was unrepresented. He was, nevertheless, in a position to make his own case. I have taken the entirety of what the Complainant had to say into consideration. I am satisfied that the Complainant was given every opportunity to challenge assertions made by the Respondent witnesses. The Complainant’s claim is for Unfair Dismissal. This dismissal, he says was effected in the course of an angry exchange with his direct line Manager. In circumstances where the Respondent’s written submission was only available on the day of the hearing, I gave the Complainant an opportunity to consider same after the hearing was concluded and I note that the Complainant provided me with a reply/submission on the 17th of November which I have taken into account in my considerations. These were forwarded to the other side in normal course. |
Summary of Respondent’s Case:
The Respondent provided me with a submission on the day of the hearing. The Respondent argued that this was a case of Constructive Dismissal. The Respondent claims that the Complainant was not dismissed by the Manager and that concerted overtures were made to address the fall-out from the argument. The Complainant it says refused to engage. |
Findings and Conclusions:
I have carefully listened to the evidence adduced in the course of the remote hearing. At the outset, the Respondent set up the proposition that this was a case which more readily fell into the category of Constructive Dismissal but I allowed it to proceed as an Unfair Dismissal (per the Complainant’s narrative set out in the Complaint Form) and indicated that I was open to concluding that the Dismissal was Constructive should the evidence so disclose. The Burden of Proof therefore fell to the Respondent. The Complainant had been with the Respondent company for some thirteen years having started in 2007. The Respondent is a haulage company and the Complainant is a driver. The Complainant came into work on Friday the 6th of March 2020 as normal. He was informed by CD the Transport Manager that the job he had been scheduled to do that day had been changed, and he was now required to do a round trip to Limerick instead. The Complainant was described in the Respondent submission as being “manifestly unhappy” with this change to his work schedule. The Complainant has stated that there were long standing issues between himself and CD arising out of Health and Safety concerns the Complainant had had, and which he felt had not been fully or enthusiastically addressed. CD himself gave evidence of the interaction between the Complainant and himself and he accepted that there was a “heated exchange” between the two of them. I cannot know exactly what was said between the parties on that morning, but it is clear that a row erupted which possibly stemmed as much from an ongoing bitterness and enmity between the parties as from the change in schedule which occurred on that day. CD accepts that he sent the Complainant home and that “his attitude stank” . CD said the Complainant was in no fit state to see customers and that the Complainant should not return to the workplace until his attitude changed. For his part, the Complainant says that he was fired by CD (who was his line Manager). He said CD was screaming at him and that this incident happened within earshot of others. He said CD said he was “gone”, “sacked from here”. He was, he says, told by CD that nobody wanted to work with him, nobody liked him and nobody wanted him here. The Complainant went on to state in evidence that CD seemed to realise what he was saying and advised the Complainant to “go home and think about what’s happened”. In evidence before me, the Complainant commented that he “cannot understand how this had happened”. Under cross-examination, the Complainant conceded that he and CD had generally got along okay beforehand, and he also conceded that the Health and Safety issue he had raised two years previously had in fact been acknowledged, and been worked around. However, the Complainant did not feel that this in any way mitigated against the ferocity of the verbal attack he had to withstand that day. He believed he had been fired and did not see any way of returning to the workplace. As far as he was concerned, what CD had said to him was unacceptable and made any return to the workplace impossible. It is noted that CD did not immediately report this incident to MK one of the company Directors who is the overall GM and who also gave evidence. MK was contacted some three days later on Monday the 9th by the Complainant. It is clear that MK was most surprised that one of his long standing employees had been fired the previous Friday and I accept that, without even referencing CD’s position, MK said that to the Complainant that he was not sacked and that MK was the only person who could sack him and his job was there for him. I accept MK’s evidence that he was most anxious to repair the damage done and sought a three-way discussion to try and bring some resolution. It is regrettable that the Complainant did not accept this offer which he admitted he knew to be genuine on the part of MK. The Complainant instead indicated that he could not go back to work with CD. There is absolutely no suggestion but that the Complainant was an excellent worker with a high degree of skill and competence. MK knew he could rely on the Complainant to go the extra mile on behalf of him, and on behalf of his father before him. I have been shown the email exchange between MK and the Complainant which represents a genuine effort on the part of MK to ameliorate the situation. The Complainant however felt matters had gone too far and he could not see a way of returning to that working environment. On balance, I am satisfied that the Complainant was dismissed on the 6th of March 2020. I further accept that the dismissal was part of a heated exchange when regrettable things were said by CD to the Complainant. I note that CD has not owned these particular statements, but I think he knows that matters went too far on that day. Three (non-working) days after the incident MK intervened, and I have to accept that the Complainant was exhorted to come to the table and to try and work out a solution. I agree that the Complainant could not return if CD’s behaviour was not addressed, but matters did not get that far as the Complainant simply refused to engage at any level. Had a Grievance been raised by the Complainant this might well have been the outcome. In his evidence the Complainant confirmed that he was not unhappy in the workplace. He indicated that previously he had been asked by colleagues to represent their interests with management which would, I think suggest that he was in good standing and there was no rationale for believing he was not liked by the rest of the staff. Therefore, whilst I accept that the Employer was dismissed by his line Manager, the Respondent moved swiftly to negate that dismissal and draw the Complainant back into the workplace. I note that the Respondent has given me a comprehensive submission in relation to Constructive Dismissal which I fully understand given the particular facts of this case. However, I am accepting that the termination came from the Employer but that on balance the Employer’s conduct thereafter was reasonable and financial loss was a consequence of the Complainant’s own behaviour. |
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00038643-001 The Complainant was Unfairly Dismissed and I award the sum of €1,880.00 as limited by the Act.
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Dated: December 10th 2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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