Complainant

Respondent

Anonymised Parties

A motor mechanic

A motor repair business.

Representatives

Harry Carpendale HG Carpendale Solicitors

Robert Coonan Robert Coonan Solicitors

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-00033894-001

20/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00033894-002

20/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00033894-003

20/01/2020

The Complainant was a permanent employee of the Respondent, the Complainant worked for the Respondent company from 15th November 2016 to 22nd August 2019. A period of approximately 3 years.

The Respondent paid the Complainant €621.50 gross per week, with the Complainant taking home a net pay of €520.00.

This complaint was received by the Workplace Relations Commission on 20th January 2020.

BACKGROUND

The background to these proceedings is the Complainant was an employee of the Respondent and worked as a mechanic at the Respondent’s premises.

The Complainant claims redress on three grounds: -

Unfair Dismissal-Section 8 Unfair Dismissals Act 1977.

Pay – Section 27 Organisation of Working Time Act 1997.

Minimum Notice – Section 11 Minimum Notice Terms of Employment Act 1973.

The three claims are interlinked insofar as the Complainant alleges that he was unfairly or summarily dismissed by his Employer the Respondent.

The Complainant contends that evidence of the summary dismissal which is alleged to be unfair centres around an exchange of communications between Complainant and Respondent in or about the 22nd of August 2019.

PARTICULARS OF INCIDENT

The Respondent alleges that he received contact from the Complainant on Sunday the 11th August 2019.   The Complainant indicated to the Respondent that he had a personal situation which might affect his work hours during the following number of days.   He said that he wished to return to the Complainant’s premises to retrieve a phone charger and he wished to make the Complainant aware as the premises had a monitored alarm system. The Respondent was aware that the Complainant’s situation was sensitive and may have involved the hospitalisation of his partner who was pregnant.   The Respondent took no issue with the Complainant indicating that he might have difficulty adhering to his work hours in the following week.

The Complainant did come to work during that week.  He worked for a period on 3 consecutive days being the Wednesday, Thursday and Friday of that week.   The Respondent will allege that the Complainant worked 16 hours that week but that, notwithstanding that this was 24 hours short of the Complainants usual working week, the Respondent paid the Complainant in full for that week.

The Respondent went on to state that the payment of employees who are absent from work is discretionary.   The Respondent’s witness stated that the Respondent Company endeavours to work on a goodwill basis with employees, and to grant them time off where required, in exchange for these employees generally try to work back any hours and, pay is not reduced accordingly.   The Respondent gave evidence that there was a further conversation on Tuesday 13th August with the Complainant wherein the Complainant indicated that once he had organised domestic help (which his Mother was going to provide for him) he would make up as many of the hours as he could.

The Complainant informed the Respondent that it was his intention to work a full week the week commencing Monday the 19th August.   The working day commenced at 7.30 a.m.    The Complainant did not come to work at that time, on Monday 19th August.   The Respondent’s MD telephoned him at 8.00 a.m.    There was no answer from the Complainant’s phone.   At 10.00 a.m. the MD received a call from the Complainant who informed him that his help had let him down, the party in question (understood to be the Claimant’s Mother) had gone to Wexford and had not returned.   The Complainant informed the MD that it did not look as if he would be able to go to work that day.   The Respondent reminded the Complainant that he needed to give the Employer as much notice as possible of any absences as work had to be booked into the garage.   Work would be curtailed if a qualified mechanic (such as the Complainant) was not available.

On Tuesday, the 20th August the Complainant made no contact with the Respondent during the working day.   At 6.20 p.m. the Respondent, concerned about the Complainant’s availability for work during that week sent a text message to the Complainant as follows:-

“I haven’t booked anything to require you until Monday (26th August), so you can let me no (sic) by Thursday if you will be back by then so I no (sic) where I stand with bookings rather than me cancelling ones that were booked”.

The Respondent stated that the effect of the message above was to inform the employee that the Respondent was not going to be responsible for booking in work which might not be reached, should the employee not be in a position to return to work during that week.

On Thursday 22nd August at approximately 10.30 a.m. the Respondent received a phone call from the Complainant’s phone.  He was unable to take the call.   He returned the call and the Complainant’s words were: -

“is there a problem with the aul bank?”

On enquiring of the Complainant what did that phrase mean, the Complainant indicated that he had a concern that he had not received his wages.

The Respondent endeavoured to explain to the Complainant that he could not be paid for time for which he was not at work.

The Complainant asked was it not possible “to work something out”.   The Complainant then informed the MD that he might be in a position to work “extra hours” to work time back.   It was explained by the MD to the Complainant that notwithstanding the fact that he had only worked 16 hours the previous week, he the Complainant had been paid for a full 40-hour week.   The Respondent’s witness will say that the Complainant then became abusive and aggressive and, told the MD:

“Stick that kip up your hole.   I should have left when I had handed in notice” (this was reference to a previous occasion when the Complainant had handed in his notice over a personal disagreement with a co-worker but, had been convinced by the MD to remain in employment).

Accordingly, the MD did send a text message to the Complainant on the 22nd August at 18.47 in which he stated: -

“Make arrangements to get your belongings outa this kip tomoro”

The MD stated that in making these comments he was paraphrasing the Complainant.

The Office Manager of the Respondent gave evidence that she had an interaction with the Complainant on Friday the 23rd August at approximately 11.00 a.m.   The Complainant had called to the office and enquired as to the whereabouts of the MD and, whether he had been left his “wages”.   The Office Manager informed the Complainant that he had been paid a full week notwithstanding that he had only worked 16 hours the previous week.   The Complainant became abusive and stated to the Office Manager:

“I am letting you know the f***** sacked me, I have evidence”.

The Complainant left certain items behind in the premises and after a text reminder sent by the MD on the 29th August these items were eventually removed.

UNFAIR GROUNDS FOR DISMISSAL

The Complainant advances a version of events which is the complete opposite of the Respondents.

It is the Respondent’s case that the Complainant, on the days up to the incident in question, was being evasive but that he had chosen to give the employee the benefit of the doubt.   The Complainant assured the Respondent that he would make himself available for work.  He did not indicate that there was an issue and, in fact he indicated to the Respondent that he had organised childcare.   Subsequently the Complainant alleges that he was let down by said childcare person.

The Complainant only told the MD this matter, at 10.00 a.m. on the morning of a workday upon which the Complainant was expected to clock-on at 7.30 a.m. The Respondent might well have been able to overlook this behaviour, but the Complainant came to the Respondent’s premises in a confrontational and aggressive demeanour, as evidenced by his exchange with the Office Manager

The Respondent did not terminate the Complainant’s employment.   The Complainant terminated his own employment.   The Complainant was unhappy that the Respondent had not paid him for time in which he was absent from work.   The Respondent states that it had no obligation to pay the Complainant during that period.   The Complainant was in fact over-paid for the previous week.   When the Complainant became unhappy about not being paid, he became abusive and indicated to the Respondent MD that he no longer wished to work for him.

It is the Respondent’s case that the Complainant resigned from his employment.   The Complainant’s behaviour was unreasonable.    The Complainant is the author of his own misfortune.   The Respondent accordingly is not guilty of unfairly dismissing the Complainant.

Should the Adjudicator find that there has been no unfair dismissal, then the Complainants other claims must automatically fail, in circumstances where the Complainant is not owed any holiday pay.

UNFAIR DISMISSAL

Thecomplainanthastwoyoungchildren,howeveratthetimeofhisdismissalhiseldestchildwas justeighteenmonthsoldandhisgirlfriendwaspregnantwiththeirsecondchild.Oninorabout 10 August 2019, the complainant's girlfriend was hospitalised due to complications with her pregnancy.Thecomplicationsweresignificantandifnotcloselymonitoredandobserved,could haveprovenfatal.Thecomplainantfoundhimselfinasituationwherebyhewasthesolecarerof theireighteen-month-oldchildwhilehisgirlfriendremainedinhospital.

On 11 August 2019, the complainant contacted the MD of the respondent company and outlined his circumstances. In the week following this, the complainant worked as hard as possible in order to complete as much work as he could in the mornings and worked through lunch in order that he could get home to take care of his child while his girlfriend remained ill in hospital. He kept the MD updated on an ongoing basis as to his circumstances. He confirmed to the MD that he was hoping his girlfriend would be discharged from hospital on in or around 27 August 2019 and that things would return to normal at that time.

On 20 August 2019 the complainant received the following text message from the MD;

'I haven't booked anything to require you until Monday, so you can let me know by Thursday if you will be back by then, so I know where I stand with bookings rather than me cancelling ones that were booked'.

The complainant confirmed that he should be able to return to work as normal the following Monday.

On 22 August 2019, the complainant was at the supermarket purchasing items for his child and his girlfriend when he was informed by the cashier at the checkout that his bank card had been declined.

The complainant rang the MD to confirm that no wages had hit his account and the MD confirmed that as he was not working, he was not getting paid. The complainant was upset and outlined his frustrations on the phone saying 'f*** (respondent named) and then hung up. He was busy all day with his child, however, he received a telephone call that he was unable to answer at in or around 6:45pm on the evening of the 22 August 2019. He then received a text message from the MD which stated the following:

'make arrangements to get your belongings auto this kip tomoro' [sic].

The complainant attended at his place of employment the following day wherein he met the MD who ignored him and ultimately, when he approached the MD to see if he could resolve the situation, the MD told the complainant to 'get out'.

The meeting at which the MD dismissed the complainant amounted to a disciplinary meeting resulting in the summary dismissal of the complainant. The MD decided to terminate the complainant's employment unilaterally and arbitrarily in the circumstances, there was a complete breach of the concepts of natural and constitutional justice in relation to the decision-making process.

The complainant confirms that the MD refused to listen to anything he had to say during both the telephone conversation; and also, when he presented at his workplace, but the MD refused to listen. This amounts to disgraceful treatment of the complainant by the MD.

The respondent has argued that the Complainant had walked out of his employment with the respondent company and had not been dismissed. The test in such circumstances is whether a reasonable employee in the circumstances would consider that the employer's words and/ or actions amounted to a dismissal.

In Devaney V DNT Distribution Company Limited UD 412/1993 it was held that what was necessary was to determine what was that employer’s intention towards the employee considering all the circumsta nces.

In the circumstances of the instant case, The MD's actions in telling the complainant 'make arrangements to get your belongings auto this kip tomoro' (sic) and also told him to  "get out' when he presented at the workplace the following day, coupled with the fact that the respondent did not write or contact the complainant following him being dismissed on 22nd August 2019 clearly shows the respondent's intention to dismiss the complainant .

It is noted, that in the respondent's defence it states 'Unfair Dismissals Act 1977 dismissal is in dispute. The company will show that the Complainant resigned his position abruptly in a clear and discourteous manner'.

It is admitted that the Complainant had confirmed to his employer out of frustration that he referred to his employer company in a derogatory manner, prior to his employer dismissing him, but he certainly did not terminate his own employment with the respondent company.

Previously, the Employment Appeals Tribunal, when dealing with the issue of ambiguous words used, in such circumstances, the incidents have been viewed in their entirety. In particular, it is noted that the relevant and the most important question is how an objective person would consider the utterance of such words in consideration of the full circumstances.

In circumstances where the Complainant received a text message from his employer confirming that he is to 'make arrangements to get your belongings auto this kip tomoro' - and where  he  attended at the workplace the following day to discuss the matter with his employer and was told to 'get out' it would seem that his employer was the party to terminate the complainant's contract of employment .

It is further confirmed that the Complainant worked with his employer for a period of 3 years, and subsequent to that 3 years period, after his employer had unilaterally and arbitrarily dismissed him following a conversation that lasted less than 15 seconds, the respondent did not contact the Complainant to enquire how he was or to discuss his employment with him further. The mere utterance of the words referred to above was nothing more than a display of exasperation from the complainant's point of view when learning that he had not been paid and was not in a position to buy food for his wife and young child.

In the above-mentioned circumstances, the respondent's submission to the WRC that the applicant walked out of his employment and therefore his claim is one of constructive dismissal is rejected in its entirety.

Paragraph 21-17, Employment Law in Ireland - Neville Cox, Val Corbett, Desmond Ryan, First Edition 2019 wherein it states the following:

"The tribunal will be sympathetic towards employers who may have spoken in the heat of the moment. In Martin -v- Yeoman Aggregates Limited [1983] IRLR 49 the employee was asked to collect a part for a car that needed repair and when he returned with the incorrect part he had a row with his employer (one of the directors of the company). He refused to return and collect the correct part and his employer dismissed him for disobeying the order. Within a couple of minutes, the director realised that by summarily dismissing the employee, he had breached his own company disciplinary proceedings. He immediately informed the employee that he was instead suspended with full pay for 2 days. The tribunal held, that as a matter of policy, it made good industrial relations sense to allow employer and employees an opportunity to recant words said in the heat of the moment. There was no dismissal."

In the circumstances referred to above, the complainant's words did not amount to him terminating his employment; nor could they be considered to amount to a resignation of his employment, however, the subsequent text message sent by the employer requesting the complainant remove his belongings from his place of employment and the subsequent meeting that took place the following day wherein the respondent unilaterally and arbitrarily  terminated  the complainant's employment by telling him to get out of his place of work, coupled with the fact that the respondent never contacted or engaged with the complainant subsequent to terminating the complainant's contract of employment , despite the complainant  having given in or about three years of loyal service as an employee to the respondent.

COMPENSATION AND MITIGATION OF LOSS

The claimant is seeking compensation in respect of his unfair dismissal and in this regard confirms that he has fully mitigated his loss and he respectively submits to the WRC that he should receive compensation in line with Section 6 (a) (ii) of the Unfair Dismissal (Amendment) Act 1993 which states:

'if the employee incurred no such financial loss payment to the employee by the employer of such compensation (if any but not exceeding an amount of 4 weeks of remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances'.

NOTICE PAY

Minimum Notice and Terms of Employment Act 1973.

The complainant is also seeking his notice pay arising from the termination of his employment. The complainant confirms that he was in continuous employment with the respondent between 15 November 2016 to 22 August 2019 and therefore is entitled to 2 weeks' notice pay as per Section 4 of the Minimum Notice and Terms of Employment Act 1973.

HOLIDAY PAY

Organisation of Working Time Act 1997

The complainant is entitled to holiday pay and claims that he is outstanding 4 days holiday pay from the respondent.

 CA – 00033894 – 001 – complaint seeking adjudication by the Workplace Relations Commission under s.8 of the Unfair Dismissals Act, 1977.

In Keane v Western Health Board UD 940/1988 the Employment Appeals Tribunal stated:

“The letter of resignation viewed against the background in which it was made could not be deemed a fully informed decision or notice by her to terminate her contract of employment. The Tribunal, accordingly, is of the opinion that the notice of resignation is tainted by reason of the confused state of her mind at the time it was tendered coupled with her obvious lack of appreciation of the grievance procedure”.

There are similarities between Keane and the instant case. When the Complainant told the Respondent “f*** (Respondent named)” he was in a situation in which his girlfriend was seriously ill in hospital, he was looking after a small child and his ATM card had just been declined in the supermarket – he was under considerable pressure.

It is not helpful that the Respondent company do not have any policies in place to cover disciplinary procedures or grievance procedures.

The phone call took place on the same day as the Complainant received a text message from the Respondent that said, “make arrangements to get your belongings outo this kip tomoro”. Whilst the Respondent has said he was paraphrasing the Complainant his intention was that the Complainant should pick up all his belongings from the Respondent’s premises.

The Complainant attended the Respondent’s premises the following day and exchanged some words with the office manager. It was the Office Manager’s evidence that the Complainant was being aggressive. When the Complainant made an attempt to speak to the Respondent MD it is alleged that the MD initially ignored him and then told him to ‘get out’.

The correct thing for the Respondent to do would have been to contact the Complainant and ask him to come in and explain himself and what did he mean with his comments during the telephone call.

I find that the complaint as presented under the Unfair Dismissals Act, 1977 is well founded.

CA – 00033894 – 002  - complaint seeking adjudication by the Workplace Relations Commission under s.27 of the Organisation of Working Time Act, 1997.

The Complainant contends that he was due 4 days holiday pay on the cessation of employment. This fact is disputed by the Respondent who contends that the Complainant received four days over what he was due. It appears that two of these days were days on which he was ill. One cannot be ill and be on holidays at the same time.

This complaint as presented under the Organisation of Working Time Act is not well founded.

CA – 00033894 – 003 – complaint seeking adjudication by the Workplace Relations Commission under s.12 of the Minimum Notice and Terms of Employment Act, 1973.

The Complainant was entitled to two weeks’ notice from the Respondent.

This complaint as presented under the Minimum Notice and Terms of Employment Act, 1973 is well founded.

CA – 00033894 – 001 – complaint seeking adjudication by the Workplace Relations Commission under s.8 of the Unfair Dismissals Act, 1977.

I order the Respondent to pay the Complainant four weeks pay for the unfair dismissal. This amounts to a gross payment of €2,486.00.

CA – 00033894 – 002  - complaint seeking adjudication by the Workplace Relations Commission under s.27 of the Organisation of Working Time Act, 1997.

The Complaint is not well founded.

CA – 00033894 – 003 – complaint seeking adjudication by the Workplace Relations Commission under s.12 of the Minimum Notice and Terms of Employment Act, 1973.

I order the Respondent to pay the Complainant 8 days pay for the failure to give requisite notice.

This amounts to a gross payment of €994.80. (see note below)

It should be noted that I have deducted the two days holiday entitlement which was overpaid to the Complainant.

Monies awarded to the Complainant should be paid within 42 days from the date of this decision.

Unfair Dismissal; OWT; Minimum Notice.