FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES: MEDITEC MEDICAL LIMITED (REPRESENTED BY PARTNER SOLICITORS) - AND - MR MARIUSZ KARPIEJ (REPRESENTED BY RM SOLICITORS) DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(s)AADJ-00027539 CA-00035084-001 Background The Complainant commenced employment with the Respondent on the 5thJune 2018 and his contract describes his role as a Warehouse technician. This role involved working in the warehouse and or on the client’s premises. The Complainant had a van which he drove for work purposes. In August 2019 the Complainant sustained an injury to his leg and was off work on sick leave. He returned to work on 17thOctober 2019. In the intervening period he had lost his driving licence. The Respondent offered him two/ three days’ work a week based on the fact that he could no longer drive. It is the Complainant’s submission that he was dismissed on the 17thOctober 2019. The Respondent disputes that and states that the Complainant resigned his position at a meeting on that date. The representative for the Complainant confirmed to the Court that the Complainant was not claiming constructive dismissal. As dismissal is in dispute it is for the Complainant to establish that a dismissal occurred. Summary of Complainant’s submission and evidence Mr Mc Kay representative for the Complainant submitted that the Complainant was a good employee. His role involved servicing equipment on site and he also spent time on the road maintaining the company’s products on client sites. The Complainant injured his leg and was out on sick leave from the 7thAugust 2019, returning to work on the 17thOctober 2019 having received a certificate of fitness to resume. The certificate stated that he should only engage in light duties for a period of four weeks. The Respondent submitted that shortly before returning to his employment he informed his employer that in the period between the accident and his return to work his driver’s licence was suspended for a period of one year. When the Complainant returned to the work on the 17thOctober 2019 he was informed that as his driving licence was suspended the Respondent would only provide him with two days of work per week for the foreseeable future. The Complainant informed the Respondent that he believed he was contractually entitled to five days work and that that he wanted fulltime work and fulltime pay. The Respondent indicated that they did not have full-time work for him. The Complainant got annoyed when he heard this and left the meeting. He believed that his refusal to accept a part-time position meant that his employment had been terminated. The Complainant in his evidence in chief stated that he was originally employed to work in the warehouse but after a while was moved to driving duties. He stated that he spent approximately 80% of his time on the road. When he broke his leg, it was in a cast so he could not drive and was out of work for about eight weeks. He confirmed to the Court that he had lost his license in September 2019 for about a year, but he was not sure of exactly when he lost it or when he got it back. On the 15thOctober he reported back to work but was advised that he needed to get a medical certificate from his GP confirming that he was fit to resume work. The Complainant did not have the finances to attend his doctor for that purpose, so the Respondent lent him the money to cover the cost of getting the medical certificate. At the meeting on the 15thOctober it was his evidence that he told Mr Callaghan that he had lost his driving licence. He also stated that Mr O ‘Sullivan was not present at that meeting. On the 17thOctober he had a meeting with Mr Sullivan and Mr Callaghan. He handed in his medical certificate which stated that for four weeks he should do light duties. They informed him that as he had lost his licence, they had no work for him. He advised that he wanted to go back working in the warehouse and they stated that they could only give him two days a week work in the warehouse in the production area. The Complainant stated that he was angry, and he walked out of the meeting. He denied that he used the words the Respondent was alleging he used but he could not recall what he had actually said. It was his evidence that he did not resign and that he walked out of the meeting because he was angry, and he thought he could go back the next day and continue the meeting. The Complainant stated that he went back the next morning and Mr Callaghan opened the door for him, told him he did not work there anymore and handed him the staff handbook marked at the pages that dealt with loss of driving licence. He asked about his tools but was not allowed access to get same. He went back again on the 21stto get his tools and met someone from the office. He met Mr Sullivan either on the 21stor 22ndOctober. Mr Sullivan gave him some of his belongings. He believes that the Respondent still has some of his belongings. In respect of mitigation of lost the Complainant stated that he got a job in February 2020 and prior to that he had applied for a number of jobs through an agency. In the course of cross examination, it was put to the Complainant that at the meeting on the 17thOctober Mr Sullivan had said that he wanted him back working. The Complainant stated that he does not recall him saying that. It was put to the Complainant that he had said “I am out of here I am finished with this company”the Complainant stated that he did not use those words. It was put to the Complainant that had returned to the building twice on the 18thOctober 2019, the Complainant could not recall if he had. In respect of the handbook the Complainant stated that the first time he saw it was on the 18thOctober 2022 when Mr Callaghan gave it to him, he did not recall getting it when he started work or seeing it at reception. The Complainant confirmed that he returned again to the building on the 21stOctober and sought his P45. He accepted that when he spoke to Mr Sullivan, he had told him to email in the list of his belongings that were still on the premises. It was his evidence that he had sent in a list by text but had not provided the Court with a copy of that text. It was put to him that when he had attended the premises on the 22stOctober he had removed documents that belonged to the Respondent including maintenance schedules. It was his evidence that he had not removed Company property that he had removed his time sheets. He accepted that he got a call from Mr O’ Sullivan advising that if he did not return the property the Gardai would be called and that he had returned to the premises and handed over documents to Mr Sullivan. The Complainant could not recall when he handed back the company phone, fuel card and keys. Mr McKay on behalf of the Complainant submitted that no words of resignation were used and that the words, “I am out of here”cannot be construed as a resignation. The Complainant was told at the meeting on the 17thOctober that they could only offer him 2/3 days work and there was no plan to increase that. This action was tantamount to dismissal. While it was not disputed that he had lost his driving licence the Respondent could have gone down the disciplinary route in respect of that but had chosen not to. In the circumstances of this case neither reinstatement nor re-engagement are appropriate, and compensation is the appropriate remedy. Summary of Respondent’s submission and evidence. Mr Mc Sweeney on behalf of the Respondent stated that the Complainant returned to work on the 15thOctober but was advised that he required a doctor’s note confirming that he was fit to return to work. The Respondent at the Complainant’s request gave him a €100 euro so he could attend his doctor and get the medical certificate. At that meeting with Mr Sullivan and Mr Callaghan he advised them that he had lost his driving licence for a year. The Complainant returned to work on the 17thOctober 2019 with a medical certificate stating that he should be placed on light duties for four weeks. At the meeting on the 17ththe Respondent sought to engage with the Complainant about what work might be available in circumstances where the majority of his role entailed him being on the road and he was not able to fulfil that element of his role. The Respondent had asked Mr Callaghan in the period between the 15thOctober 2019 when they were informed of the loss of license and the meeting of the 17thOctober 2019 what work they might have available that did not involve driving. Mr Callahan established that there was outstanding maintenance work to be done and found that there was sufficient work at that point for 2/3 days a week that did not involve driving. However, the Respondent would also need to engage a driver to deliver and collect equipment from their clients. At the meeting of the 17thOctober 2019 the Respondent sought to engage with the Complainant on this issue. However, the Complainant got irate and verbal and refused to engage in any discussion around the issue. He stated that he was terminating his employment and walked out of the meeting. On the 18thOctober 2019 the Complainant returned to the premises but refused to discuss anything with Mr Callaghan his supervisor stating that he was no longer employed. Later that evening he returned to the premises and tried to access the building. When the supervisor opened the door, he barged past him and went into the office claiming he was owed money. He then tried to access the warehouse and was aggrieved when asked to leave. On the 21st October the Complainant contacted his supervisor looking for his P45, he was asked not to leave and advised that more work would probably become available, but he stated he was not interested. On the 22ndOctober 2019 he accessed the building and removed paperwork including maintenance schedules. He eventually returned to the premises and handed over the documents to Mr Sullivan. Mr Sullivan in his evidence to the Court stated that when people start with the company, they spend a few weeks in each area, so they get to know the business. The Complainant was always employed with the intention that he would drive to client sites and either carry out repairs on site or bring equipment back to the warehouse for repair. Mr Sullivan stated that he was at the meeting on the 15thOctober 2019 when the Complainant informed him that he had lost his licence. He asked Mr Callaghan to check out what work was available in the warehouse that they could get the Complainant to do. He received a report from Mr Callaghan saying that they needed trained people like the Complainant and that because they would still need to have some one who could do the off-site work, he felt that at that point in the time the most they could offer him was between 15 and 23 hours work a week. This review was done before they received the doctor’s note recommending light duties for four weeks. When they met with the Complainant on the 17thOctober 2019 they explained to him that as he was unable to drive the van which they felt was about 60% of his duties, at that time they would only have two or three days a week work for him. At that point in the meeting the Complainant got very aggressive. They tried to explain to him that more work could become available. He became upset threw down his company phone, his keys and his fuel card and left the meeting stating that he was out of here. Mr Sullivan confirmed that the next contact he had with the Complainant was on the 21stOctober 2019 when he rang him. It had been brought to Mr Sullivan’s attention that the Complainant had come into the warehouse and removed documents that were the property of the Respondent. He phoned the Respondent and asks him to return to the premises. Initially the Complainant was refusing to return the paperwork until he informed him that he would have to call the Gardai. The Complainant came back to the premises, and he met him at the front of the building. They went through a black bag of stuff and sorted out what belonged to the Complainant and what belonged to the Respondent. Under cross examination it was put to Mr Sullivan that he was not at the meeting on the 15thOctober. Mr O Sullivan confirmed that his evidence was that he was there. Mr O Sullivan accepted that he did not indicate when the Complainant might go back on full hours. They had only been informed two days earlier that he had lost his licence and they were trying to deal with the situation as best they could. He went on to state that he does not accept that the Complainant came back the next day to finish the meeting, he returned looking for money and for his belongings. Ms Sullivan accepted that he did not reach out to the Complainant until the phone call about the removals of the items. He believed the Complainant had resigned his position and that as an employer they did not need to do anything further. Mr Mc Sweeney submitted that the Complainant had known for a period of time before he returned to work that he had lost his licence for a year, but he did not share this information with the Respondent. When on the 15th ofOctober he shared this information, the Respondent reviewed the work they had to see what they could offer the Complainant in circumstances where he was not in a position to carry out the job he had been recruited for. At the meeting on the 17thOctober 2019 when the Respondent tried to discuss this with the Complainant, the Complainant walked out of the meeting. The Complainant’s own evidence was that he accepted that no words of termination were uttered by the Respondent at that meeting and that it was the Complainant who had terminated the meeting. The applicable Law
Issue for the Court Dismissal as a fact is in dispute and therefore it is for the Complainant to establish that a dismissal as defined by the Act occurred. Discussion The Complainant submits that he was dismissed by his employer on the 17thOctober 2019. However, his own evidence was that no words of termination were used at the meeting and that he had ended the meeting by walking out. The Complainant appears to be contending that the mere fact of the Respondent indicating that in circumstances where the Complainant had lost his driving licence (a requirement of his job) that they were only in a position to offer him 2/3 days a week work that, that in and of itself was them terminating his job. The Court does not accept that as a valid contention. The uncontested evidence before the Court was that the Complainant walked out of the meeting before it had ended. By doing that the Complainant denied the Respondent the opportunity to consider any valid concerns that the Complainant had. The Complainant did not dispute the evidence of Mr Sullivan that at the meeting he had returned his work phone, his fuel card and his keys, his evidence was that he could not remember when he had returned those items. The Court finds that on the balance of probabilities that the Complainant did hand back his company phone, keys and fuel card at that meeting and utter words that would entitle the Respondent to conclude that he had resigned his position. Determination Taking all the factors set out above into account the Court determines that no dismissal occurred on the 17thOctober 2019. The appeal fails. The Decision of the Adjudication Officer is upheld. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary. |
