ADJ-00028550

Complainant

Respondent

Parties

Roberto  Vallescas

CQZP Limited t/a Maxol

Representatives

  Self

Maeve Cox BL instructed by  Powderly 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-00036666-001

15/06/2020

The complainant was employed as a store attendant with the respondent company.  He commenced employment on 10 October 2017.  His contractual hours of work were 40 hours per week.  Due to the restrictions arising from the Covid-19 pandemic his working hours had been reduced to 30 hours per week.  He was paid €10.50 per hour.  The complainant left his shift on 17 May 2020, following an exchange with his supervisor.  He claims he was unfairly dismissed on 18 May 2020.  He submitted a complaint to the Workplace Relations Commission on 15 June 2020.

The respondent asserts the complainant was not dismissed but rather abandoned his position.  Further, the complainant refused to engage with the employer to return to work or attend meetings with a view to returning to his employment.

Submission

The complainant set out in his first submission, dated 21 September 2020, the sequence of events of 17 and 18 May 2020 and provided copies of correspondence with the respondent.

The complainant attended work on Sunday 17 May 2020.  He was due to work a shift from 2pm to 9 pm that day.  He states his supervisor confronted him and accused him of not doing his work on the previous shift.  He became upset and left, telling her if she was not happy with his work he would leave.

The complainant states he was offended and frustrated when he decided to leave that day.  His frustration was rooted back in an incident in January 2020 when he alleges another staff member posted pictures of the store shelves on Facebook implying that the night shift had not stocked the shelves.  The complainant asserts the Store Manager was aware of this incident, but it was tolerated and not addressed.  There was a second posting on Facebook in February 2020.  Again, the management did not intervene.  This was the background that caused frustration when the supervisor made the accusation of not doing his work. 

The complainant states the store has CCTV cameras and it could be verified that he did his work, but no attempt was made to do so.  Instead, the false accusations among employees were tolerated.

The complainant states that after he left work there was a missed call from Mr Sherry.  The complainant states that he was unable to call Mr Sherry back as he was distressed and not sure what to do.  He decided to talk to Mr Sherry the next day.

The next day, Monday 18 May 2020, the complainant was preparing to go to work when he checked his e-mail.  He had received a pay slip notification.  His pay slip included his holiday pay.  The complainant states he thought, that was it, this was his last pay slip.

The complainant then telephoned Mr Sherry to ask if he was to come to work.  He states that Mr Sherry told him it was over.  He asked, “do I come to work?” and the reply was “No, goodbye Bobby”.

The complainant contends he was unfairly dismissed over the phone on 18 May 2020 without due process.  He states he was not aware of the charges or grounds of dismissal or why Mr Sherry told him not to come to work anymore.

Documents Submitted

The complainant provided a copy of the Revenue printout showing that the respondent had reported his employment as ‘Ceased’, dated 17 May 2020.

The complainant provided copies of letters sent to the respondent dated, 21 May, 02 June, 15 June, 17 June and 23 June 2020.  The complainant made a formal complaint concerning his dismissal in the letter of 21 May 2020.

The complainant provided copies of letters received from the respondent dated, 27 May, 15 June and 19 June 2020.  The complainant states he was invited to a meeting on 02 June with Mr Sherry but none of his queries had been answered.  So, he wrote again requesting information and documents.  In the letter dated, 15 June 2020, the respondent told him he was operating on the misunderstanding that his employment was not terminated but that he had abandoned his work.

The complainant states that Mr Sherry’s statement that he was not terminated did not match the fact that he got his final pay slip from the company and his employment was reported on Revenue as ‘Ceased’.  The complainant states that in the letter of 19 June he received a copy of his contract, which he had requested, and the respondent suggested dates to meet with Mr Sherry.  The complainant states he did not understand why the change on 19 June, to decide to discuss the matter when he had been told not to come to work on 18 May 2020.

Supplemental Submissions

In the submission dated 22 July 2020 the complainant confirms the statements set out in the original submission.

In the submission dated 25 August 2020, the complainant states he had every intention of going back to work on 18 May 2020.  However, when he phoned Mr Sherry to call his attention to what he saw online in his payslip he was told not to come to work anymore.

The complainant attached a copy of his payslip which included payment for holidays.  He confirmed that he received his payslip online on 18 May 2020 and that his actual payment was received on 20 May 2020. 

The complainant repeated his earlier statements.  He contends the did not abandon his employment but rather was unfairly dismissed on 18 May 2020.

Redress

The complainant seeks compensation for his unfair dismissal.  In his evidence the complainant stated he was unemployed from May to August 2020 and was in receipt of job seekers benefit.  He found employment in August at a rate of €11.20 per hour.  The complainant stated he first applied for a job a month after his employment with the respondent ended.  He stated he was working on this case, seeking justice, during the first month of unemployment.  He stated he made 3 or 4 job applications. The complainant stated he was seeking justice; it was not about money.

Submission

The respondent employer is a service station incorporating a shop in its premises.  The complainant commenced employment on 10 October 2017.  He was working 30 hours per week as a sales assistant.  His duties included serving customers, stocking shelves etc.  His weekly wages were approximately €300 net.

The respondent contends the complainant abandoned his position with the employer and refused to engage with the employer to return to work or attend any meetings with a view to returning to his employment.

The business operated as a 24-hour garage before the pandemic.  In 2020, due to the pandemic, there were restrictions and a reduction in business, so the garage closed at 11pm.  This meant that it was important for the staff on late shift to perform their assigned tasks so that the shop could start seamlessly the following morning.

The complainant worked the late shift on 16 May 2020.  The following morning the shop was not stocked properly, and it appeared that he had not carried out his duties in this respect.  Shortly after the complainant arrived for his shift at 2pm on 17 May 2020 the supervisor requested to speak with him privately.  The supervisor pointed out that the shelves had not been properly stocked the previous evening.  The respondent asserts that the complainant told the supervisor to look at the CCTV and laughed at her.  His attituded was dismissive.  When the supervisor asked him to stop laughing at her he replied, “fuck you” and walked out the back door.  He told the supervisor he was going home.

The supervisor contacted Mr Sherry to inform him what had occurred.  Mr Sherry telephoned the complainant but there was no answer, so he left a voicemail message.  The complainant did not return the telephone call that day.  Mr Sherry understood the complainant to have abandoned his post.

Mr Sherry had to cover the complainant’s shift on 17 May 2020.  He also had to arrange cover for the following day as he was unable to confirm if the complainant intended returning to work,

The complainant telephoned Mr Sherry at approximately 2.45pm the following day, 18 May 2020.  The complainant asked if he should come in for his shift.  Mr Sherry informed the complainant that because he had not heard from him and given what had happened the previous day, he had arranged for someone else to work his shift.  At no stage did Mr Sherry terminate the complainant’s employment.  The complainant was not dismissed.

There was no further contact from the complainant until 21 May 2020.  The complainant sent a letter stating he was dismissed following the incident “where I was accused of not doing my job and not given a chance to explain myself during that time instead I was humiliated and bullied”.  The complainant also sought certain documents.

Mr Sherry wrote to the complainant on 27 May 2020 inviting him to a meeting on 02 June 2020 to discuss the situation.  The complainant sent Mr Sherry a text message on 01 June 2020 stating he could not make the meeting and that he would send a further letter.  The complainant sent another letter, dated 02 June 2020, in which he referred to ‘wrongful dismissal’.  He again sought documents, including a termination letter.  The respondent asserts there was no dismissal and so the documents request did not exist.

Mr Sherry wrote to the complainant on 15 June 2020.  He repeated that he understood the complainant had abandoned his position on 17 May 2020.  However, he confirmed that his job remained available and requested that he contact him in order to schedule a return to work and to arrange a meeting to discuss the incident of 17 May 2020.  Mr Sherry asked for confirmation by 19 June 2020 that the complainant intended to continue in his role. 

Mr Sherry’s letter of 15 June 2020 crossed with a letter from the complainant of the same date.  There was a further letter from the complainant dated, 17 June 2020, which contained some new complaints about social media posts.  Mr Sherry wrote to the complainant again on 19 June 2020.  He again stated the complainant’s employment was not terminated and confirmed the company would address any grievances he wished to raise.  The company was anxious to investigate and resolve all issues fairly and comprehensively.  The complainant was advised that her could be accompanied at a meeting, if he wished.  The letter enclosed a copy of the complainant’s contract of employment, as requested by the complainant.

By letter dated 23 June 2020 the complainant advised the matter was now with the WRC and he preferred to discuss the issue with them.

The complainant’s allegations in his submission about earlier incidents of bullying was not supported by documents, as reference by the complainant.  There was a previous issue concerning the complainant having failed to perform certain duties.  This had been addressed appropriately at the time by Mr Sherry and the HR Manager.  A second incident occurred where the complainant became aggressive with a co-worker, allegedly owing to a comment made on a private staff Facebook page about shelves not being stocked correctly.  The HR Manager met with the complainant to discuss and resolve this issue.

It is correct that the complainant’s employment is recorded on Revenue as having ceased on 17 May 2020, being the last date, the complainant came to work. 

The respondent contends there was no dismissal and as such the complaint is fundamentally misconceived.

Legal Submission

The respondent refers to the definition of dismissal as contained in the Act.  The respondent submits the complainant was not dismissed.  The act of dismissal is a prerequisite for the application of the legislation. 

The employer made every effort to accommodate the employee and encouraged him to attend a meeting to schedule a return to work.  The respondent asserts that the complainant walked out during his rostered shift and refused to attend a meeting or confirm his intention to return to work.  In such circumstances the conclusion can only be that the employee has abandoned his position.

Redress

The respondent repeats its position that there was no dismissal.  Without prejudice to same, section 7 of the Act, as amended, provides the types of redress that may be awarded in cases of unfair dismissal.  The respondent refers to section 7 (2) concerning the issued to be considered in determining compensation.  The respondent contends the complainant has failed to demonstrate any losses and/or failed to mitigate his losses, if any.  If the complainant did incur a financial loss as a result of his decision to abandon his post, same is not attributable to any act, omission or conduct by or on behalf of the employer.  Rather, any such loss was solely attributable to the actions and conduct of the employee and/or his failure to adopt measures, to mitigate any alleged loss.  Further and without prejudice to the above, this situation arose as a direct result of the conduct of the employee.

Supplemental Submission

The respondent made this submission to provide documents showing when the payslip and payment of wages were provided to the complainant in May 2020.  The respondent provided copies of bank statements, payslips for the complainant and a copy of the staff rota.

The respondent asserts that the working week runs from Monday to Sunday.  The relevant week ended on Sunday 17 May 2020.  Payments leave the respondent’s bank account on a Wednesday each week.  The bank statement shows a debit in respect of wages in the sum of €564.26.  This corresponds with the pay slip for the complainant for the week ended 17 May 2020, showing a payment of €564.26.

The respondent asserts the complainant’s wages were calculated and his payslip processed and e-mailed to him on Monday 18 May 2020, as it was every Monday.  His wages were transferred to his bank account on Wednesday 20 May, as it was every week for all employees.

The respondent’s position is that the complainant was not dismissed and is not entitled to any relief.

CA-00036666-001

Complaint submitted under section 8 oof the Unfair Dismissals Act, 1977.

The complainant claims he was unfairly dismissed by the respondent on 18 May 2020.  The respondent denies the complainant was dismissed and asserts that he abandoned his post on 17 May 2020.

The complainant acknowledged that after a short meeting with his supervisor on 17 May 2020 he left his place of work.  The parties agree that shortly after the complainant attended for his shift that day his supervisor spoke with him about the stocking of shelves the previous night. 

The complainant in his submission stated that his frustration about being accused of not performing his tasks was because of two earlier incidents when another worker posted photographs on Facebook implying that work on stocking shelves was left undone.

While the complainant may have felt frustrated it was neither a responsible nor reasonable act to leave work on that day.  The complainant acknowledged that Mr Sherry tried to phone him soon after he left work.  However, it is his position that he was distressed and unsure of what to do.  He decided to talk to Mr Sherry the next day. 

On Monday 18 May 2020 the complainant was due on shift at 2pm.  In his submission he states he checked his e-mail before he left for work and saw his payslip had been sent to him.  The pay slip showed payment for the week ending 17 May and payment for holidays.  The complainant telephoned Mr Sherry.  That telephone call was the first conversation between the complainant and Mr Sherry since the complainant had left work the previous day.

The complainant in his submission alleged that during that telephone call he was told not to come to work.  He alleged Mr Sherry said, “that’s it, it’s over” and “no, goodbye Bobby”.  The respondent in its submission alleged the complainant was told that because they had not heard from him and because of what happened the previous day Mr Sherry had arranged for someone to work his shift.

I have considered carefully the submissions and reviewed the documents provided by both parties and two issues arise out of the events of 18 May 2020.  First, the complainant received his payslip by e-mail before the telephone conversation took place with Mr Sherry.  That meant that the payroll for the week ended 17 May 2020 had already been processed.  I am satisfied that it was the normal procedure to process the weekly payroll on Monday.  However, what is extraordinary is that the complainant’s holiday pay was included in that payroll.

There was a conflict between the parties at the first hearing as to whether the complainant was actually paid on that day.  Based on the documents provided with the supplemental submissions and the complainant’s admission in his submission of 25 August 2020, I am satisfied that the payment was not transferred to the complainant’s bank account until Wednesday 20 May 2020.  I am satisfied that the processing and payment of wages for the week ended 17 May 2020, took place on the usual days. 

The only explanation for the inclusion of holiday pay in the complainant’s wages on 20 May 2020 was that the respondent had formed the view the complainant had abandoned his position.  This view was formed before any discussion took place between the complainant and Mr Sherry. 

The complainant had worked for the respondent since 2017.  It would be reasonable for Mr Sherry to be annoyed at an employee walking out on his shift.  It would be reasonable for an employer in such circumstances to investigate what had happened and based on the outcome of such investigation perhaps invoke a disciplinary process.  Mr Sherry did place a phone call and leave a voicemail for the complainant on 17 May 2020.  The complainant did not return the call until the following day.  There was no reference by either party to an investigation having been mentioned during the phone call of 18 May 2020.  The first time that Mr Sherry invited the complainant to a meeting was in his letter of 27 May 2020, after he had received a letter of complaint from the complainant.

The respondent did not conduct any investigation before processing a payment for holidays on 18 May 2020.  The explanation that the respondent assumed the complainant had abandoned his position was only made in the letter from Mr Sherry dated, 15 June 2020.

The only time an employer is entitled to pay an employee for holidays is on termination of employment, as provided under section 23 of the Organisation of Working Time Act

Compensation on cesser of employment. 23.—

(1) (a) Where—

 (i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave

I am satisfied that the respondent acted unreasonably in not investigating the events of 17 May 2020 before he processed the complainant’s outstanding holiday pay on 18 May 2020.  I find the respondent intended to terminate the complainant’s employment when he processed the pay for the outstanding holidays.  As the respondent had not conducted any investigation of the events of 17 May 2020 and had not given the complainant the opportunity to present an explanation for his actions when he processed the holiday pay, I find the complainant was unfairly dismissed.

Redress

The complainant has claimed redress of compensation.  Section 7 (1) (c) of the Act provides the following:

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks 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

Section 7(2) provides:

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

The maximum compensation, as set out above, is 104 weeks remuneration.  The complainant was unemployed from 17 May 2020 until 11 August 2020.  He had been working 30 hours per week at 10.50 per hour.  He was not in receipt of any other financial benefits.  When the complainant obtained a new job, he was paid at the rate of 11.20 per hour.  Given that the complainant had over two years’ service he had acquired redundancy rights in the event of a redundancy arising.  I calculate he maximum compensation that is just and equitable to be €5,040 approximately 16 weeks wages.  However, the legislation, as set out above, requires me to examine the conduct of the employer and employee and the measures adopted by the employee to mitigate the loss.

The complainant’s action of leaving work on 17 May 2020 was unreasonable and was a significant contributing factor in his dismissal.  The respondent did not make any attempt to investigate the events of 17 May 2020 or resolve the issue before he processed the holiday pay.  However, between 27 May and 19 June 2020 the respondent may several attempts to engage with the complainant, including stating that his job remained available for him.  The complainant rejected all the respondent’s attempts to meet to resolve all the issues.  I am satisfied that the respondent made genuine attempts to engage with the complainant to resolve the issues.  I am satisfied the complainant did not act reasonably in rejecting the respondent’s invitation to engage to resolve the issues.

The complainant in his evidence stated that he made no attempt to find other employment for the first month after his dismissal, as he was concentrating on preparing this case.  The legislation requires the employee to mitigate their loss and the complainant did not do so in the first month after dismissal.  The complainant did succeed in obtaining a new job in August 2020.

I am satisfied that the complainant was unfairly dismissed.  I am satisfied that the complainant’s action of 17 May 2020 was a significant contributing factor in his dismissal.  I am satisfied that the respondent made several efforts to engage with the complainant to resolve the issues between 27 May and 19 June 2020 and all such efforts were rejected by the complainant.  I am satisfied, on the complainant’s own evidence, that he did not try to mitigate his loss in the first month after his dismissal.  Having regard to all the circumstances I find the complainant was 70% responsible for the loss he suffered by his unfair dismissal.  Having regard to all the circumstances I find it is just and equitable to award the complainant compensation of €1,500.

CA-00036666-001

Complaint submitted under section 8 oof the Unfair Dismissals Act, 1977.

I have considered carefully the submissions and evidence and I am satisfied that the respondent acted unreasonably in not investigating the events of 17 May 2020 before he processed the complainant’s outstanding holiday pay on 18 May 2020.  I find the respondent intended to terminate the complainant’s employment when he processed the payment for the outstanding holidays.  As the respondent had not conducted any investigation of the events of 17 May 2020 and had not given the complainant the opportunity to present an explanation for his actions when he processed the holiday pay, I find the complainant was unfairly dismissed.

I am satisfied that the complainant’s action of 17 May 2020 was a significant contributing factor in his dismissal.  I am satisfied that the respondent made several efforts to engage with the complainant to resolve the issues between 27 May and 19 June 2020 and all such efforts were rejected by the complainant.  I am satisfied, based on the complainant’s own evidence, that he did not try to mitigate his loss in the first month after his dismissal.  Having regard to all the circumstances I find the complainant was 70% responsible for the loss he suffered by his unfair dismissal.  Having regard to all the circumstances I find it is just and equitable to award the complainant compensation of €1,500.

Unfair Dismissal

Mitigation of Loss