Complainant

Respondent

Parties

James Muldoon

Caromik Limited

Representatives

Self-represented 

Peninsula Business Services

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00048868-001

25/02/2022

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

CA-00048868-002

25/02/2022

The respondent is a plant and machinery hire business and the complainant started working with them as a truck driver in November 2015.  In 2017, he was promoted to the role of yard manager.  He earned €634 gross per week.  His employment ended on December 2nd 2021, when he left his place of employment due to his concerns about conduct of another employee.  The complainant’s case is that he told the managing director, Mr Flynn, that he was going home until the matter was dealt with.  Mr Flynn’s position is that the complainant left work on December 2nd and that he resigned.

As the fact of dismissal is in dispute, it is the responsibility of the complainant, in the first instance, to establish that, as a matter of probability, his employment was terminated by his former employer.

On the complaint form he submitted to the WRC, the complainant said that a new driver joined the company in March 2021.  For convenience, I will refer to this employee as “AB.”  AB treated the complainant with aggression and disrespect, with the first instance of this behaviour occurring in September 2021, in the presence of the managing director, Mr Flynn.  The complainant said that AB shouted at him, threatened to kill him, called him names, vandalised property and talked about him disparagingly to other employees.  The complainant said that he made a verbal complaint to Mr Flynn at the time.  The complainant said that the intimidating conduct of AB continued and escalated in November 2021, when he was shouted at and abused in the yard in the presence of other workers.  The complainant said that he told Mr Flynn that he felt threatened and that the way he was treated by AB would result in him leaving his job.  On his complaint form, the complainant said that Mr Flynn’s response was that he should stay out AB’s way.  Nothing was done about AB’s conduct and the final incident occurred on December 2nd 2021 when he drove at the complainant at speed as he was driving his car into the yard.  The complainant said that he phoned Mr Flynn and told him that he couldn’t work while being threatened.  Again, Mr Flynn’s response was that the two men should stay out of each other’s way.  The complainant said that he told Mr Flynn that he would be going home after he completed the task he was working on.  He said that he left the yard at 10.30am.

The following day, the complainant noticed that there was extra money in his bank account with his weekly wages.  When he phoned Mrs Flynn to enquire about this, the complainant said that she told him that money was his outstanding holiday pay which was transferred to his bank account because he left.  The complainant said that he explained to Mrs Flynn that he left work, and not his employment.  When he explained to Mrs Flynn why he had left, the complainant said that she told him that he should have made a formal complaint.  He then received what he described as “an irate call” from Mr Flynn asking him why he phoned the office.  When the complainant said that he wanted to know why he got his holiday money, he said that Mr Flynn replied, “you left, what more do you want?”

The complainant went to meet Mr Flynn on Saturday, December 4th.  The complainant said that they discussed how he was being treated by AB, but he said that Mr Flynn suggested that he was somehow at fault for how he was being treated and nothing was resolved.

Referring to the events of Thursday, December 2nd, the complainant said, “I didn’t walk out, I didn’t quit, I didn’t give notice of any intention to leave.  To my mind, I would still be working if the issues with (AB) had been resolved or if I had been given fair treatment.”  It is the complainant’s case that he did not leave his job of his own choice, but that he was “pushed out.”

Evidence of the Complainant

The complainant said that AB joined the company in March 2021 and, when he started, Mr Flynn told him to talk to the complainant about anything to do with the trucks.  The complainant said that AB told him that he only deals with the man that pays him.  When the truck he was driving broke down, the complainant said that AB left a message in the dust on the body.  He said that AB called him names, playing to an audience of other employees in the yard.  He said that AB threatened to kill him.  The complainant said that this went on during March, April and May 2021.  He said that when he saw AB in the yard, he didn’t get out of his truck until he had gone.

In November 2021, just before he went on holidays, the complainant said that AB shoved into him with his elbow against the side of a truck.  He said that he returned from holidays on December 2nd and AB drove a truck at his car at high speed.  When he phoned Mr Flynn about this latest incident, the complainant said that Mr Flynn’s response was, “I don’t know why two grown men can’t stay out of each other’s way.”  He said that Mr Flynn gave him instructions for his next job and he told him that he would be going home when he had that job done.

The complainant then gave evidence about finding his holiday pay in his bank account the next day and speaking to Mr Flynn on the phone around 10.45.  He said that he met Mr Flynn in the yard on Saturday, December 4th.  He said that Mr Flynn told him that the problems were his fault.  He referred to a truck that the complainant had been asked to install a diesel monitor on.  The complainant said that Mr Flynn told the driver that the complainant had fitted the monitor.  He told the complainant that drivers were leaving because of him.

Cross-examining of the Complainant

Ms De Groot suggested to the complainant that no one told him he was dismissed.  He replied that he told Mr Flynn that he was going home until he resolved the problem with AB.  He said, “I didn’t jack in the job, I went home.”

Asked why he didn’t make a formal complaint about AB, he said that he couldn’t make a complaint about an employee who is not “on the books.”  He said that AB “wasn’t legally there.”

When he had the meeting with Mr Flynn on Saturday, December 4th, Mr Flynn didn’t ask him to re-consider.

Asked about a post on Facebook in which he advertised his availability as a heavy machine driver, the complainant said that he got an offer of a job on December 16th and he started on January 4th.

In response to questions from me, the complainant said that he put the post on Facebook when he was sitting in the yard on December 2nd.  He said that he did it out of temper.  He said that he phoned his wife and she told him to come home.

Evidence of Patricia Muldoon

Mrs Muldoon said that she and Caroline Flynn were friends and that they had a conversation over coffee on November 1st.  Mrs Muldoon said that Mrs Flynn told her that her husband was very stressed about what was going on with the lads in the yard, describing it as “a playground.”   

In a submission provided to the WRC in advance of the hearing, Ms De Groot said that the complainant returned from holidays on Thursday, December 2nd and had an altercation with a member of staff in the yard.  He told the managing director Mr Flynn in no uncertain terms that he wasn’t interested in working for him any longer and he left the yard around 8.45am.  At 9.04am, he posted an ad on Facebook, seeking employment as a driver of heavy machinery.  A copy of the Facebook post was included in the respondent’s book of documents at the hearing.  Mr Flynn told his wife that the complainant had resigned and she processed his holiday pay with his final week’s wages.

The following day, the complainant phoned Mrs Flynn and asked her about the money in his account and she informed him that his holiday pay had been processed with his final wages due to his resignation.  The complainant informed Mrs Flynn that he was owed money for stone he had paid for on behalf of the company and he told her that he would collect his belongings from the yard the following day. 

At 10.45, Mr Flynn phoned the complainant and told him that they could have a conversation when he came to the yard on Saturday.  When they met, Mr Flynn asked the complainant to re-consider his resignation, saying, “is this it James?”  The complainant replied that he was finished with Mr Flynn and that he was deleting his number from his phone.  Mr Flynn paid the complainant €475 for the stone he had paid for and another €1,500 as a gesture of goodwill.

Mr Flynn was aware that the complainant and AB didn’t get on; however, Mr Flynn received reports from other employees that the complainant was an intimidating presence and not AB.  Mr Flynn investigated the complainant’s claims three months before he resigned and he concluded that there were conflicting personalities, but not bullying in the yard.

In her submission, Ms De Groot said that the respondent did not take action on foot of the complainant’s outburst on December 2nd, until his request for work was posted on Facebook and he failed to come to work on Friday, December 3rd.  The complainant was firm in his decision not to come back to work when he met Mr Flynn in the yard the next day.

In the summer of 2020, the complainant had taken similar action, when he walked off the site and stated that he would only come back to work if Mr Flynn gave him a bonus.  It is the respondent’s case that this was a repeat of the same behaviour.  Ms De Groot submitted that the complainant resigned from his job, was asked to re-consider and is now alleging that he was both dismissed and constructively dismissed.  In failing to identify whether he left his employment by choice or was terminated by his employer, Ms De Groot argued that the complainant has failed to discharge the burden of proof required to show that he was constructively dismissed.  As he submitted his resignation verbally to the respondent, Ms De Groot submitted that the complainant has not identified how he was unfairly dismissed.

Evidence of the Managing Director, Michael Flynn

Mr Flynn said that he set up the company in 2015 and that the complainant had been working with him since then.  He said that they were good friends.  Mr Flynn said that, in his mind, the behaviour of AB wasn’t bullying, but that it was “argy bargy” among the lads in the yard.  He said that no one ever made a complaint about bullying.

Mr Flynn said that the complainant told him the AB was talking about him.  He said that he spoke to AB but that he was satisfied that there was nothing going on.

On December 2nd 2021, Mr Flynn said that he phoned the complainant, who said, “I’m out of here.  I’m done.”  He didn’t say he’d be back.  Mr Flynn said that he told his wife that “James is after jacking.”  Mr Flynn said that he knew that the complainant had paid for stone in Roadstone and he phoned him on Friday, December 3rd and he asked him what he owed him.  They agreed to meet in the yard the next day.   When he met him in the yard on Saturday, Mr Flynn said that he asked the complainant, “Is that it?” and that he replied, “Yes.”  The complainant took his belongings.  Mr Flynn said that he paid the complainant what he owed him for the stone and he gave him €1,500. 

Mr Flynn said that the situation ended very badly and not as he wanted things to end.  He said that AB has been a friend of his for 25 years.

Evidence of Caroline Flynn

Mrs Flynn said that the company started out with herself and her husband and three drivers.  The complainant had worked with them since they started the business in 2015.  Mrs Flynn said that her husband phoned her on Thursday, December 2nd and told her that the complainant “jacked in the job.”  Mrs Flynn said that she does the wages every Friday and the complainant wasn’t in work.  She paid the complainant his outstanding holiday money and he phoned to ask her what the money was for.  Mrs Flynn said that the complainant told her that AB had said that he was going to kill him.  She asked the complainant why he didn’t tell her or her husband what had been going on.  Mrs Flynn said that the complainant was not dismissed.

Was the Complainant Dismissed?

A definition of “dismissal” is set out at section 1 of the Unfair Dismissals Act.  Dismissal is defined as the termination by the employer of the employee’s contract or, the termination by the employee of his contract.  At section 22.13 of “Redmond on Dismissal Law,” by Dr Desmond Ryan, (© Bloomsbury 2017), Dr Ryan refers to the general understanding of dismissal:

“In general a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt dismissal was intended or that it may be reasonably inferred.”

In this case, communication regarding the termination of the complainant’s employment was far from unequivocal and the task of interpreting what both parties intended was a challenge.  This is my understanding of the facts:

§  The complainant left work on Thursday December 2nd shortly after his start time.  In a short phone call, he told his employer that he was not prepared to stay if a colleague’s behaviour was not addressed.

§  At 9.16am, he posted an ad on Facebook, “Man available for immediate start in January.  Digger, dozer, dumper.  Full clean C license all cards up to date.  DM your offers only.”

§  The complainant did not attend work on Friday, December 3rd.  When he received his wages, he phoned the office to ask Mrs Flynn what the additional money was for.  He was owed money for stone that he had paid for in Roadstone.  In his evidence, he said that Mrs Flynn explained that he was paid his holiday money because he had left.  He said that he asked Mrs Flynn if she knew about “the bullying” and that she replied that he should have made a complaint.

§  At 10.45am on Friday, Mr Flynn phoned the complainant and it seems that the conversation was heated.  The complainant told Mr Flynn that he expected him to “deal with the problem at source.”   The two agreed to meet in the yard the next day.

§  When they met on Saturday, December 4th, Mr Flynn paid the complainant €475 for stone he had purchased for the business and €1,500 as a gesture of goodwill.

§  The complainant said that he accepted an offer of a new job on December 16th and he started on January 4th.

§  On January 31st, he addressed an email “To Caromik” and advised his former employer that it was intention to submit a complaint to the WRC.  Concluding a detailed outline of his reasons for making a complaint, he said, “This exact email will be forwarded to my WRC representative on February 8th as a formal notice to proceed with action should a suitable and adequate solution not be reached.”

§  These complaints, under the Unfair Dismissals Act and the Minimum Notice Act were submitted to the WRC on February 16th 2022.

Based on these facts, I have concluded that the complainant left his job on December 2nd 2021, after he was confronted with what he considered to be aggressive behaviour of a work colleague.  There is no evidence that he told Mr Flynn that he would return if the conduct of the other man was dealt with and it is my view that he resigned in temper.

If the complainant had intended to return to work on condition that AB’s conduct was addressed, he could have written to his employer to let him know that this was his position.  I note from his email of January 31st 2022 that the complainant is capable and articulate in writing and, if had been serious about his intention to return, it is my view that he would have committed this to writing shortly after December 2nd.

When he discovered that he had been paid more than his normal net weekly pay of €600, the complainant phoned Mrs Flynn.  He was informed that the additional money was his holiday pay.  In his evidence, he did not say that he told Mrs Flynn that he didn’t intend to leave, but he said that he asked her if she knew about the conduct of AB.  He did not ask Mrs Flynn to reinstate him on the payroll.

When the complainant met Mr Flynn on Saturday, December 4th, he accepted from him the money he was owed for stone and, a payment of €1,500, which Mr Flynn gave him as a gesture of goodwill.  If the complainant had not intended to resign, it is my view that he would have rejected this gesture and he would have told Mr Flynn that he would be back at work on Monday.  Instead, he collected his belongings and left.

There is no evidence of any communication, verbal or in writing, that the complainant was dismissed.  While it seems to me that Mr Flynn may have decided that the complainant’s departure was an expedient solution to a problem that he was either not capable of or not prepared to resolve, I find that he did not dismiss the complainant.

Was the Complainant Constructively Dismissed?

As I have concluded that the complainant was not dismissed, and that he resigned, I must now consider if he was constructively dismissed.  The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract without giving prior notice of the termination to the employer…”

The burden of proof rests with the complainant to set out the facts that show that, because of the actions of his employer, he had no alternative but to resign.  Section 1 of the Act envisages two circumstances in which a resignation may be considered to be a constructive dismissal.  The first of these, referred to as “the contract test,” occurs when the employer’s conduct amounts to a repudiatory breach of the employee’s contract.  In such a circumstance, the employee would be entitled to resign his position.  In Western Excavating (ECC) Limited v Sharp[1], it was established that the test requires the employee to show that the employer is “guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract…”  If this can be established, “…then the employee is entitled to treat himself as discharged from any further performance.”

The second test, known as the “reasonableness test,” may be relied upon in combination with or as an alternative to the contract test.  This requires the employee to show that their employer acted so unreasonably that they could not be expected to tolerate it and they had to resign.  Reasonableness goes both ways and we know also that an employee is required to act reasonably, by using their employer’s grievance procedure to try to resolve the issues that are threatening to lead to resignation.

I accept the evidence of the complainant that he found it difficult to work with AB and I find that Mr Flynn’s response to his concerns was inadequate.  Mr Flynn had a long friendship with AB and he was also friends with the complainant for six years.  It seems to me that the relationship that must exist between an employer and an employee and the less formal relationship between friends became blurred and this made it difficult for Mr Flynn to exert authority over either man.  It was in this scenario that the complainant felt that he couldn’t stay.  It is my view that most men in similar circumstances would have made the same decision.

When he decided that he would have to leave, the complainant had an obligation to act reasonably and to communicate in unequivocal terms with Mr Flynn about the effect that AB’s conduct was having on him and the likelihood that it would lead to his resignation.  His explanation that he did not make a complaint because AB “wasn’t on the books” is not credible.  Again, I refer to the detailed email the complainant sent to Mr Flynn on January 31st 2022, in which he explained how he was affected by AB’s conduct.  This is the letter that he should have sent before he resigned and the fact that he did not do so is fatal to his claim that he was constructively dismissed.

CA-00048868-001:  Complaint under the Unfair Dismissals Act 1977

I have concluded that the complainant was not dismissed but that he resigned from his job on December 2nd 2022.  For the reasons I have set out above, I decide that his complaint of constructive dismissal is not well founded.

CA-00048868-002:  Complaint under the Minimum Notice and Terms of Employment Act 1973

As I have concluded that the complainant was not dismissed, I decide that he has no entitlement to notice and his complaint under the Minimum Notice and Terms of Employment Act is not well founded.

Dismissal in doubt, constructive dismissal