Complainant

Respondent

Parties

Niall  Reville

E. Dunphy Ltd

Representatives

Andrew Walsh BL

Thomas Murran, Solicitor

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-00047277-001

22/11/2021

The Complainant contends that he was unfairly dismissed for driving too fast into the Respondent’s workplace yard.  The Respondent disputes that there was a dismissal.

The Complainant gave sworn evidence as follows:  He stated that he worked for the Respondent for in or around 3 years.  He started in 2018 as a Delivery Driver, delivering Fruit & Veg and Mr ED was his main manager.  They had no problems until the incident in question.  The Complainant stated that on 8th July 2021, he drove into the yard and Mr ED came up to him while he was in the van, wouldn’t let him out of it and stood in front of the door of the van and shouted at him to leave his jacket and go home.  He was dismissed.   He said he received no notice, no written terms of employment, no grievance procedures and no written warnings.

In cross examination, the Complainant agreed that he had often had a loan of a van from the Respondent.  He agreed that he was trying to set up a business for sun beds for home use.  

The Respondent Mr ED gave sworn evidence as follows: He stated that the Complainant worked for him as a Van Driver.  He had no issues with him until around the time of the incident.  The Complainant had as far as Mr ED knew, started a sun bed business and he started borrowing vans from him, and from then his attitude to ED and to customers changed. On the day in question, ED was working under a vehicle, heard a noise of a vehicle being driven in at speed.  He came out to see it was the Complainant.  There was a dispute between them and the Complainant told ED where to stick his job.  ED said the Complainant resigned his job, he was not dismissed.  A few weeks after, a Transport truck came into the yard trying to deliver a consignment of sun beds.  ED had to send them back.  In cross examination, ED agreed that he had not written to the Complainant post the incident but as far as he was concerned the Complainant had left his job.    

There was much evidence in this case around the Complainant setting up a business for sun beds.  The matter before me for decision is whether the Complainant was dismissed from his job and if so, whether that dismissal was unfair.

There was a conflict of evidence from the parties as to whether the Complainant said you can “stick your job” or whether the Respondent said “leave your jacket and go home.”   I note there was no follow up correspondence from either party following the altercation in the yard.  If it was the case that the Complainant did resign his employment in the heat of the moment, it would have been incumbent on the Respondent as the employer to follow up and confirm with the Complainant as to whether he had actually tendered his resignation or whether he wished to re-consider.    If it was the case that the Respondent did tell the Complainant, “leave your jacket and go” meaning he was dismissed, then the dismissal was without any due process, disciplinary procedures or investigation into the employee’s conduct.

Having heard the evidence, I find that the Complainant was dismissed in circumstances where there was no follow up to the incident, and no process put in place to deal with the altercation between the parties.  The onus in this case was on the Respondent to draw matters to a close by invoking procedures, or confirming that the Complainant had resigned.  I find, in the circumstances that the Complainant was unfairly dismissed.  In relation to remedy, I find that re-employment or re-instatement are not suitable in the situation where the employment relationship has clearly broken down.  I note the Complainant’s vague evidence about mitigation of loss.  I find he has also contributed 50% to the situation.  I find therefore compensation of €3,200 is appropriate.