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-00021831-001

12/09/2018

The respondent company is a small construction business with work in and around Dublin. The complainant joined the company on December 5th 2016 as a general operative. His employment was terminated on April 25th 2018, following an argument with one of the company’s directors. He started a new job on April 8th 2018 and he submitted this complaint to the WRC on September 12th 2018.   The complainant claims that his dismissal was unfair.

As the complainant has more than one year of service, he has submitted his complaint under the Unfair Dismissals Act 1977 – 2015 (“the Act”). Section 6(1) of the Act provides that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

The burden of proof rests therefore with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case.

The boss of the construction company is one of the directors who I will refer to in this document as “AB.” In his evidence at the hearing, AB said that they were working on a construction project at a house in Herbert Park in Dublin. On April 25th 2018, a final meeting was set up with the architect’s design team, so that the house could be certified for practical completion. AB said that he wanted the house to look in good order. AB’s son was the foreman and he was late getting to the site.   He phoned the carpenter and told him what needed to be done to have the house and grounds tidy and finished-looking and he told the carpenter to tell the complainant what to do.

During his walk around of the house with the design team, AB said that the house wasn’t in proper order. His son told him that the complainant had refused to take instructions from the carpenter, that he had spoken to him in a threatening manner and called him a “retard.” AB said that he spoke to the complainant and he asked him what had happened. The complainant replied that he wasn’t taking orders from an idiot and a heated conversation then followed, during which AB said that the complainant told him to “f*** off.” AB said that he told the complainant to “get out of here,” by which he said that he meant, “get off the site and calm down.”

The complainant didn’t come back to work for the rest of the week. AB’s brother is a neighbour of the complainant, and a few days later, AB asked him to phone the complainant. The complainant told AB’s brother that AB had told him to “f*** off.”   Referring to the carpenter, the complainant said that he wasn’t “going to listen to a muppet” and that he wasn’t taking orders from “a blow-in.” He said the complainant thanked AB’s brother and the company for the opportunity and he asked for “his dues and his paperwork.” AB said that he heard that the complainant “had a start” for the following week.

The respondent’s case is that the complainant was not dismissed, and that he requested his P45 because he got another job. When he was issued with his P45 on April 8th, he was paid two weeks’ wages and pay in lieu of three days’ holidays not taken.

In his complaint form, the complainant said that he had an argument with a co-worker, a carpenter, who had just started in the company. In his evidence at the hearing, he said that he didn’t like the way the carpenter was speaking to him, and that he was undermining his decisions. He said that he didn’t call the carpenter “a “retard,” but he said, “I did although tell him that he hadn’t a clue what he was doing.” When he was challenged by AB, he said that AB told him not to speak to another worker “in that manner.” During the argument that followed, he said that AB advised him that he should go and work somewhere else. He said that he replied, “well, maybe I will.” He said that he was then told to “f*** off the site.” He said that he got no verbal or written warning and that he simply packed his tools and left the site.

The complainant said that less than two weeks after this altercation, on May 8th 2018, he started work with another construction company. He said that he finished in that job at the end of November and he started another job on December 19th 2018.

Despite the evidence of AB that his brother contacted the complainant, the complainant said that no one contacted him. He said that it was over a week before he received his P45 and that he had to send a text message to AB to ask for it.

Was the Complainant Dismissed?

A definition of “dismissal” is set out at section 1 of the Unfair Dismissals Act. Dismissal is defined as the termination by the employer of the employee’s contract, or, the termination by the employee of his contract. At section 22.13 of “Redmond on Dismissal Law,” by Dr Desmond Ryan, (© Bloomsbury 2017), Dr Ryan refers to the general understanding of dismissal:

“In general a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt dismissal was intended or that it may be reasonably inferred.”

Construction sites are somewhat different from other workplaces, and the exchange that resulted in the complainant leaving was probably robust on both sides. AB was annoyed about the state of the house for the meeting with his client. He heard from his son that the complainant was abusive to the carpenter. In the heat of the moment he told the complainant to leave the site and suggested that, if he didn’t want to treat the carpenter with some civility, he should get a job somewhere else. The complainant said that he responded, “maybe I will.” The complainant didn’t like being told to treat this person with respect, and he didn’t like taking direction from him because he didn’t rate him as a construction worker.

When the dust cleared however, it is my view that if he had come back the next day, his employment would have continued, as long as he could modify his behaviour and treat his colleague with respect. From his point of view, it seems that he had enough, and he looked for another job.   Even if the complainant was told in expletives to leave the site on April 25th 2018, he presented no evidence that he was told not to come back.

Considering whether the complainant was dismissed or, if he left, it seems to me that the balance of uncertainty is more on the side of the complainant. I base this conclusion on the evidence of the respondent that he told the complainant that maybe he should look for a job somewhere else, and the complainant’s response that, “maybe I will.” The respondent took no action after this incident to confirm that the complainant was dismissed. When he didn’t come back to work, AB sent out an emissary in the form of his brother and, by this overture, it is my view that, if he had wanted to return to his job, the complainant would have been accepted back.   The termination of the complainant’s employment was actioned only after he requested a P45.

At section 22.16 of “Redmond in Dismissal Law,” Dr Ryan refers to the case of Devaney v DNT Distribution Company Limited, UD412/1993. The circumstances of this case were similar to the complaint under consideration here where the complainant considered himself to have been dismissed after a heated exchange:

“…where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention. We find, having regard to the relationship that existed between the parties prior to the termination and the claimant’s evidence that, (the director of the respondent company) often expressed his feelings in very strong language, that the words uttered by (him) in an angry mood, did not amount to a dismissal and were never intended as such.”

I have considered all the evidence presented to me at the hearing of this complaint. It is my view that, on the day of the client inspection of the site, when he found the house to be not the way he expected, and when he discovered that the complainant had refused to take instructions from the carpenter, AB was angry and he suggested to the complainant that he might look for a job somewhere else. In my view, this was not intended as a dismissal and the complainant was wrong to consider himself as dismissed. I note that he delayed almost five months before he submitted his complaint to the WRC, which leads me to the view that he was not entirely convinced himself that he was dismissed.

It is my view that the complainant was not dismissed from his employment with the respondent, but that he left of his own accord.

I have decided that this complaint is not upheld.