ADJ-00021032

Complainant

Respondent

Anonymised Parties

{A Driver}

{An Employer}

Representatives

Gavan Mackay Mackay Solicitors

Dermot Flanagan Flanagan Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00027714-001

13/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00027714-003

13/04/2019

The Complainant was employed as a Driver from 3rd January 2015 to 19th March 2019.

CA-00027714-001

The Complainant did not receive any contract of employment.

CA-00027714-002

The Complainant says he was subjected to vulgar and aggressive behaviour by his employer who accused him of having broken his truck. He was being verbally abused and walked away. He returned his truck to the depot and later received a text to say he did not need to serve his notice and he would receive his P45 in due course.

The Complainant was unfairly dismissed. He was not afforded any procedures on dismissal nor opportunity to appeal. His employer refused to allow him to return to work.

CA-00027714-001

The Respondent says the Complainant was given 2 contracts of employment. The Complainant refused to sign both copies. The Respondent has discharged its obligations.

CA-0027714-002

The Respondent denies the Complainant was dismissed. He disputes the Complainant’s version of events.

The Complainant was instructed to collect his truck and fill it with diesel at the rear filling station, due to its large size. The Complainant did not do this and parked at the front of the filling station. The Respondent saw this and shouted at the Complainant to pull the truck to the back of the garage and fill from the correct pump. He told him to make sure he did not damage the other side of the bumper of the truck. He believes the Complainant took issue with this and thought he was being blamed for the damage caused. The Respondent says he was verbally abused by the Complainant, and regrettably he responded in kind. The Complainant ultimately told the Respondent to stick his job and drove away.

The Respondent in anger texted the employee saying if you don’t want your job, you don’t have to serve your notice and we will pay you what you are due. The Complainant returned the truck to the yard and left.

The Respondent then tried to contact the Complainant to discuss what occurred the next day but could not reach the employee. This could have been gross misconduct. He spoke to a friend of the Complainant and told him the Complainant’s job was still open. On Friday of that week the Respondent received a text from the Complainant saying he would come back on Monday and to have his truck ready. The Respondent told the Complainant he would not be returning to work on Monday and said he wanted to meet him on Saturday to discuss what occurred. There was no response from the Complainant to further requests to meet from the owner.

The Complainant said he had taken legal advice and he had been sacked. The Respondent said no one was sacked. The next communication was from the WRC. The Respondent says the conduct of the Complainant could be considered gross misconduct. It was always his intention to discuss what occurred with the employee when the heat had gone out of the situation. The Respondent denies any dismissal occurred and admits that his text in the heat of the moment was not the best course of action but, he says then sought to resolve the matter with the employee, who would not respond.

There was no dismissal or unfair dismissal.

I have considered the written submissions of the parties and their oral evidence at the hearing.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that he was employed by the employer to do:

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or to continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the 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 more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

Section 6 (1) (7) of the Act provides without prejudice to the generality of subsection 1 of this section, in determining if a dismissal is an unfair dismissal regard may be had, if the Adjudication Officer as the case may be, considers it appropriate to do so-

(a)    to the reasonableness of the conduct, or otherwise (whether by act or omission) of the employer in relation to the dismissal and,

(b)    to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee with the procedure referred to in S14 (1) of this Act, or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals Amendment Act 1993) of section 7 (2) of this Act.

The owner and the Complainant accept that an incident occurred on 19th March 2019 when the Complainant was refuelling his truck at the depot. The owner says the Complainant was specifically requested to refuel at the back pump. On the morning, the Complainant parked his truck at the front and was refuelling from this. The Complainant thought he was being blamed unfairly for damage to the truck the previous week and says he could not refuel the truck at the front pump. There are allegations and counter allegations of verbal abuse by the parties. The Complainant denies using foul language and says after a torrent of abuse from the owner, he accepts he eventually told the owner to “ f…     off and stick his job.”. The Respondent says the Complainant was shouting and using foul language, while he was speaking to a client on his phone. He says that the discussions got heated and regrettably responded in kind. After the Complainant drove off, he texted him in anger “if you don’t want your job you don’t have to serve your notice, we will pay you what you are due including holidays and pay outstanding, etc”.

The Respondent carries the onus of showing that having regard to all the circumstances there were substantial grounds justifying the dismissal.

The Respondent has not produced any copy of the Complainant’s contract of employment. The Complainant denies having received this nor any employee handbook. The Respondent is obliged to provide terms and conditions of employment to the Complainant pursuant to the Terms of Employment (Information) Act 1994, This has not been complied with and I find this complaint is well founded.

The terms and conditions should be provided in writing and are required to set out the disciplinary and grievance procedures applicable. It would have greatly assisted the parties if the procedures were in place. Statutory Instrument 146/2000 Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 provides general guidelines and outlines the principles of fair procedures for employers and employees generally. The code of practice should apply unless alternative agreed procedures exist in the workplace which conform to the code of practice.

As a general rule, efforts should be made to resolve the complaint between the employee and his line manager informally if possible. Not all complaints are suitable for informal resolution. If not complaints or allegations against an employee must be set out in writing by an employer, and the complaints investigated and adjudicated upon fairly. The consequences of departing from rules and breaches of discipline must be clearly set out.

This particular incident involved a serious dispute between the owner and an employee. However, there was no correspondence whatsoever from the Respondent to the Complainant regarding the incident, what steps were proposed nor any formal disciplinary procedure, nor advising of the existence of a grievance procedure. The owner who was witness to what occurred, subsequently tried to engage with the Complainant by text in order to resolve the matter and to facilitate his return to work. I note the decision of Mr. Justice Barton in Towerbrook Limited t/a Castle Durrow Country House Hotel v Eugene Yong [2018] IEHC 425 following the ruling in Mooney v An Post which was upheld by the Supreme Court. Keane J found that the Managing Director should not have involved himself in conducting the investigation, and other matters in circumstances where the Managing Director was the subject of a complaint of assault by the employee. The Complainant is entitled to fair procedures, to be informed of the charges against him and given an opportunity to respond.

Subsequently the Complainant agreed to return to work but when the owner sought a meeting with him beforehand, he declined to meet saying he was dismissed. The Respondent said in evidence that he did not want to lose this driver. It is regrettable this attempt to resolve the situation was not taken up by the Complainant.

CA-00027714-001

I found this complaint is well founded and award the Complainant four weeks wages totalling 2,212 euro and direct payment by the Respondent.

CA-00027714-002

I find the Complainant was unfairly dismissed on procedural grounds. The actions of the Respondent do not come within the band of reasonable responses. I am also of the view that the Complainant contributed to his dismissal by failing to engage with the employer to try to resolve matters. The Complainant seeks 3 weeks compensation for financial loss of 553 euro per week. It is just and equitable that an award of 2 weeks financial loss of 1,106 euro be made taking into account the contribution by the Complainant, and I direct payment by the Respondent.

CA-00027714-001

I found this complaint is well founded and award the Complainant four weeks wages totalling 2,212 euro and direct payment by the Respondent.

CA-00027714-002

I find the Complainant was unfairly dismissed on procedural grounds. It is just and equitable that an award of 2 weeks financial loss of 1,106 euro be made to the Complainant which takes into account his contribution, and direct payment by the Respondent.