ADJ-00024163

Complainant

Respondent

Anonymised Parties

Driver’s helper

Recycling and Waste Company

Representatives

Brian Hughes

Mary O’Dwyer

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-00030669-001

05/09/2019

The Complainant contends that he was unfairly dismissed following an argument with his employer.

The Complainant was employed by the Respondent from 15th May 2016 to 19th August 2019.   On Friday 16th August 2019, he returned to the yard with the Driver. An argument ensued between the Employer and the Driver about continuing on driving the truck, which the Driver believed was in no fit condition.   The Complainant got involved in the argument and he was told by the Employer that he knew f… all about trucks and to keep out of it. The Complainant contends that he was then called in by the Employer on the following Monday and told there was no job for him. He received a letter dated 23rd August 2019 from the Employer telling him that he had told the Employer to f… off and stick his job on the Friday 16th August and that his behaviour was deemed to be gross misconduct and that his resignation was being accepted effective from Friday 16th August 2019. It is submitted that this was an unfair dismissal, without any procedures being applied.

The Respondent stated that as far as he knew the Complainant had resigned his employment on the Friday when he told the Employer to stick his job. So when the Complainant presented for work on the Monday, the Employer was not even aware that he had worked that day. The Driver had picked him up on the route.   The Respondent paid the Complainant for the day and considered the employment relationship at an end due to the resignation of the Complainant.

It is common case that the Complainant was involved in an argument with the Employer on Friday 16th August 2019. There is a conflict of evidence as to whether the Complainant told the Employer to “stick his job”. However, it is apparent that he did unwisely become involved in an argument with the Employer about an issue for which he had no remit or responsibility.   The letter from the Employer dated 23rd August 2019 has two elements to it, on the one hand accuses the Complainant of gross misconduct and on the other, deems him to have resigned effective from Friday 16th August 2019. I note that no disciplinary procedures were invoked if the behaviour was considered as unacceptable, and the Employer did not summarily dismiss the Complainant. It is therefore left for me to conclude that the Respondent decided to accept a resignation, which the Complainant in any case denies was made. Case law has established that in a situation where the employee resigns in the heat of the moment, and an employer accepts such a resignation without considering the circumstances or allowing a cooling off period, then the Employer may not have acted reasonably in concluding there was an intention to resign, Kwik-Fit (GB) Ltd v Linehan [1992].     I uphold the Complainant’s complaint that he was unfairly dismissed. I find that compensation is the appropriate remedy, re-instatement or re-engagement are not appropriate as the employment relationship is not likely to be restored. I find that the Respondent should pay to the Complainant the sum of €4,590, amounting to 10 weeks wages, as I believe by his involvement in the matter on the 16th August 2019, the Complainant contributed some 50% to the situation in which he found himself.

Unfair Dismissal, conflict of evidence regarding resignation.