Complainant

Respondent

Parties

Cyril Murray

JJ Fleming & Co Ltd

Representatives

 The Society of the Irish Motor Industry

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-00043004-001

10/03/2021

The complainant submits that he was dismissed without fair procedures.  The respondent submits that the complainant resigned his position.

The complainant submits that he commenced employment on 02/01/2020 as a service manager and that he was unfairly dismissed without fair procedures and that he was bullied by the director Mr Pat Fleming.

The complainant was put on covid leave in 2020 and returned on 15 February 2021 having spoken to Mr Pat Fleming with regard to completing warranties that had not been claimed for owing to covid-19 shutdown.  The complainant was trained in how to complete these warranties. 

On 15th February 2021 the complainant started working on the warranties and Mr Pat Fleming phoned him at 11 am and the complainant explained that he was going through the paperwork to complete the warranties.  The complainant went for lunch at 1:15 and Mr Pat Fleming phoned him at 1:18 enquiring again about the warranties and seemed unhappy that the complainant was having lunch.  The complainant submitted that he had been having issues with logging on to get the warranties.  Later that evening around 4pm Mr Pat Fleming came into the room and started to shout at the complainant asking why there were not more warranties completed.  The complainant submitted that he stood up and said he did not deserve to be spoken to in the manner in which Mr Pat Fleming was speaking to him.  Mr Pat Fleming said he “will do what he fucking wanted to as he was the boss” and told the complainant to “fuck off” and said “bring the fucking van back in the morning”.  The complainant said he took this to mean that he was dismissed and he told Mr Pat Fleming that the respondent had to give him notice and he left the premises.

On 19 February 2021 the complainant received a phone call from Mr Pat Fleming who told the complainant that the complainant had walked out and that the respondent had a witness.  The complainant said that the respondent had said to him that the complainant’s head was not in the game during his time with the respondent.

With regards to mitigation of loss, the complainant said he is not currently working and that he had applied for approximately 6 jobs and that he wanted a job that would facilitate remote working.  He said that he was aware that there is a labour shortage.

Under cross examination the complainant submitted that he receives €208 from government payments and that he is hoping to upskill and that he wishes to get a job where he can work remotely owing to child custody reasons.  He said that he received a contract but no handbook or grievance procedure from the respondent.

The respondent submitted that they are 49 years in business with 21 employees and that the complainant had previously worked with them as an apprentice and more recently as a service manager earning €894.23.  He was placed on covid-19 lay off in March 2019 and availed of Pandemic Unemployment payment (PUP).  The complainant had received a contract and a grievance procedure was available for him through the handbook which is available to all staff.

On 11th February 2021 the respondent requested the complainant attend work to deal with warranties as the complainant was the only person trained in the warranties.  It was unclear what time the complainant attended work on the 15th February but the respondent was aware that the complainant was on site around 11am.  The respondent expected the complainant to have completed about 100 warranties when the respondent checked on him at 4pm.  He was shocked to hear that the complainant had only completed four warrants.  The respondent would have expected that if there were any technical difficulties that the complainant would have made the respondent aware of this during the day.  The complainant became agitated and said that he was leaving and that he was “out of there”.  Mr Pat Fleming queried if the complainant was resigning and reminded him that he had company property including the van.  It was denied that the respondent dismissed the complainant.  It was denied that intimidating language was used or that there was any bullying.  At no time did the complainant raise concerns through the company’s grievance procedure.

It was submitted that for a constructive dismissal case the burden of proof is with the complainant and that the complainant had failed to meet that burden.  It was submitted that there was no breach in terms of employment and that the respondent acted reasonably and that the complainant had not.  It was not denied that there was tension between the parties but one instance of tension is not sufficient to meet the threshold of constructive dismissal.

Case law cited included Western Excavating (ECC) Ltd v Sharp, Berber v Dunnes Stores, Conway v Ulster Bank Ltd, Ryan Cannon & Kirk Accounting Services Ltd v Violeta Kneite, Beatty v Bayside Supermarkets UD142/1987, Kaydee Cosmetics v Elizabeth Blake.

Evidence of Mr Pat Fleming was that on 15th Feb 2021 he went to get a tax book from the office where the complainant was located around 4pm and asked the complainant how he was getting on and was shocked that the complainant had completed so few warranties.  He denied that he approached the complainant’s desk and submitted that the complainant did not want to be seen at work and that the complainant came out from behind the desk and said he was “out of there” and walked out of the office.  The respondent asked the complainant if he was leaving and reminded the complainant that he had the respondent’s van.

Under cross examination Mr Pat Fleming said that it was the complainant who had been trained in the warranties and yet without training Mr Pat Fleming and Mr Denis Fleming had been able to figure out how to complete the warranties and completed 10 of them.  He said that the complainant never told him that there were difficulties logging on.  He said that he left it a week before he contacted the complainant again and that he terminated him on the revenue system on 19th February 2021.

Evidence of Mr Denis Fleming was that he was in an adjoining office and had a clear view of the complainant’s office.  He said that he recalled Mr Pat Fleming’s words to the complainant that “you’ve only done fucking four”.  He said that the complainant said he would not be spoken to in that way and that he was leaving.  He submitted that he would not regard Mr Pat Fleming as a bully and that he would use the ‘f’ word regularly in his speech but as a colloquialism.

Under cross examination Mr Denis Fleming said that he was not familiar with how to do the warranties and did not recall any issues with logging on.  He said that after the complainant left, Mr Pat Fleming and himself processed about 10 warranties and that it was just a matter of entering the number.  Mr Denis Fleming said that the complainant went up very close to the respondent threatening.

The complainant submits that he was dismissed, and the respondent submits that the complainant resigned his position. 

Section 1 of the Act defines dismissal in the following manner

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

As dismissal as a fact is in dispute, it is for the Complainant to establish that a dismissal occurred. If that is established, it is then for the Respondent to demonstrate that in the circumstances of this case, dismissal was fair as there were substantial grounds justifying dismissal.

It was not in dispute that the complainant was tasked with completing warranties on the day and that the respondent was unhappy with the quantity of warranties completed.  It was not in dispute that there was a heated exchange.  It was not in dispute that Mr Pat Fleming used the ‘f’ word on numerous occasions and that the complainant also did and I note from the witness for the respondent Mr Denis Fleming that Mr Pat Fleming uses the ‘f’ word regularly in his speech.  It was not in dispute that the complainant left the premises, and that the respondent terminated the complainant from payroll on the 19th February 2021.  A follow up call was made a week later to the complainant whereby the respondent looked for the company van to be returned. 

With inappropriate language used by both parties in a heated exchange, the question arises was it reasonable for the complainant to assume his employment had been terminated by the words and actions of the respondent or was it reasonable for the respondent to assume that the complainant had resigned by his words and actions.  In all the circumstances I find it more credible that the respondent terminated the employment of the complainant and that it was not a resignation and that the respondent made no effort to reconsider his decision to dismiss.  Having established that there was a dismissal, I will next look to establish whether such a dismissal was fair.

Section 6 of the Unfair Dismissals Act, 1977 provides:

6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which 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 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 any statute or instrument made under statute.

(6) In determining for the purposes of this Act whether the dismissal of an 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.

Having heard the evidence and submissions of both parties, I find it would have been expected, in all the circumstances, that the respondent would have suggested that both parties cool off and discuss the matters on another occasion.  This did not happen and I find it was reasonable for the complainant to assume that his employment was terminated.  The respondent made no effort to contact the complainant following this heated exchange to reconsider his decision and no effort to apply fair procedures to the dismissal and I find that the dismissal was unfair.

I have decided that reinstatement or re-engagement of the Complainant is not a practical option in this case and that compensation is the appropriate redress in this case.  With regards to efforts to mitigate his loss, the complainant provided limited proof of efforts to mitigate his loss.  The complainant has clearly not met the standard set out by the Tribunal in Sheehan v Continental Administration Co Ltd (UD 858/1999) in that a “claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."

Taking all this into account I award the complainant compensation of 3 weeks salary being an amount of €2,700.

I find that the dismissal was unfair and the complaint succeeds and taking note all the circumstances of this case referred to above and limited efforts to mitigate his loss I order the Respondent to pay the Complainant the total sum of 3 weeks salary being €2,700 for the unfair dismissal.

Unfair dismissal, mitigate loss