Complainant

Respondent

Anonymised Parties

A Mechanic

A Truck Dealership

Representatives

Cavan Citizens Information Service

Director

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-00019444-001

28/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00019444-002

28/05/2018

The complainant was employed by the respondent as a Mechanic from December 2012 until December 2017. The complainant was paid €602.28 gross per week. The complaints relate to an alleged Unfair Dismissal and a breach of the Minimum Notice and Terms of Employment Act, 1973.

The respondent contends that the complainant was not dismissed. The respondent stated that the complainant attended for work on 4th December 2017 and was under the influence of alcohol. The respondent contends that the complainant was sent home for the day and did not attend work on the 5th December 2017. The respondent stated that the General Manager of the Respondent telephoned the complainant on 5th December 2017 to ask when the complainant would return to work. The respondent stated that the complainant told the General Manager to F**k Off and send out his P45.

The respondent stated that it waited to see if the complainant would return to work but when he did not, the P45 was issued on the 11th December 2017. The respondent stated that it subsequently received a back-dated Medical Certificate dated 11th December 2017 stating that the complainant was unfit for work from the 4th December 2017 until 13th December 2017.

The respondent confirmed at the adjudication hearing that the complainant’s position remains available to him but there has been no further contact between the parties since the complainant wrote seeking a reason for his dismissal on 16th January 2018 almost five weeks after receiving the P45.

The complainant stated that he attended work on 4th December 2017 and was feeling unwell with the Flu. He stated that he was allowed to go home as a result. The complainant stated that he remembers a heated telephone conversation with the General Manager of the respondent on the 5th December 2017 but does not remember either telling the General Manager to F**k Off or asking for his P45. The complainant stated that he was certified unfit to attend work from 4th December 2017 until 13th December 2017 and his P45 was issued to him on 11th December 2017. The complainant is claiming that he was unfairly dismissed.

The complainant confirmed at the adjudication hearing that he did not wish to work for the respondent again.

In relation to this complaint I find as follows:

The complainant did not attend work after the 4th December 2017. He contends that he was absent on sick leave with the Flu and that the respondent was aware of this. The respondent stated that it was not aware that the complainant had the Flu until it received a back dated Medical Certificate on the 11th December 2017. The respondent confirmed that the complainant’s P45 had also issued to the complainant on that date as he had not called to collect it having requested it the previous week.

I have given careful consideration to the submissions of both parties to this complaint. I am of the view that following the heated telephone conversation of the 5th December 2017, the complainant should have contacted the respondent in relation to his continued absence. His contract of employment provides that a Medical Certificate be submitted to the respondent on the third day of absence. I find that if the complainant was unable to fulfil this obligation due to ill health, he should have at least made the respondent aware of the situation.

In all of the circumstances of this complaint, I find that, on balance, the complainant sought his P45 during the telephone conversation of the 5th December 2017 as stated by the respondent. This was stated to the complainant in a letter from the respondent dated 6th December 2017, yet the complainant did not contact the respondent again until after the P45 was received on 11th December 2017 and only sought the reason why he was issued with his P45 on 16th January 2018, approximately five weeks later.

Having considered the submissions of both parties, I find that the complainant left the employment after requesting that he be issued with his P45 during a heated telephone conversation with the General Manager on 5th December 2017. Accordingly, I find that the complaint of alleged Unfair Dismissal is not well founded.

The complainant stated that he was dismissed from his employment without Notice. The complainant contends that as he worked for the respondent from December 2012 until December 2017, he was entitled to receive four weeks’ notice of his dismissal. The complainant is seeking that he be paid €2,219.28 in respect of his notice entitlements.

The respondent re-iterated its position that the complainant was not dismissed and that he requested his P45 during a telephone conversation on 5th December 2017 and made no further contact until the 16th January 2018 asking why the P45 had been issued to him. The respondent’s position is that the complaint should fail.

Complaint application CA-00019444-001 above has found that the complainant asked for his P45 on 5th December 2017 and that his complaint for alleged unfair dismissal was not well founded. Accordingly, where the complainant effectively resigned from his employment, the entitlement to Notice does not arise.

Having considered the submissions of both parties, I declare that the complaint is not well founded.

Unfair Dismissal, Minimum Notice