Complainant

Respondent

Anonymised Parties

A Worker

An Employer

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

CA-00055254-002

23/02/2023

The Complainant alleges he was unfair dismissed from his employment. The Respondent denies that he ever dismissed the Complainant.

The Complainant started work around the end of August and worked until he was dismissed in January 2022. The Complainant said that he was not late on the 27th December. He worked the full day. However, he did not work on the 28th. He did not call because he had a high fever, was delirious and slept until the 29th. The medical certificate handed in covers dates 29th December to 4th January. The Complainant accepted under cross examination that he did not call, text or email anyone on the 28th.

There were no issues with his performance up until the 4th January. He didn’t know he had to work on the 4th until that morning. By chance he checked the roster. He went into work, but he did have a  pre-arranged physio appointment that morning so he closed the shop and went to that. He didn’t tell anyone that he was going to close the store on the 4th of January so that he could go to physio and to the bank.  At 2pm Mr X came in and asked where he was that morning. He said that he was at physio because his chair at work had injured him. Then he said that he had an issue with one of the products that was being sold in the store. He told Mr. X that he had tried it and he had a bad reaction. He then did some research on the product and soon discovered that it was a substance that shouldn’t be sold in the shop. He should have been aware that he was selling it. When he spoke to Mr X about it on the 4th he fired him immediately. He then went to leave the store. He gave the keys to Mr D. He did not throw them. Under cross examination he admitted that he did “gently” throw the keys at him, and they ended up behind a cabinet. The Complainant denied he was very angry at the time. He also denied that the reason he was asked to go home was because he was so angry. He then got the keys back and went to get his belonging. He left and threw the keys over a small wall, and he went home. He did make contact with Mr. X later, in relation to him getting paid. He didn’t get paid for a number of months. He has been paid now.

3.34pm on the 6th January the Respondent sent a text “If you really feel it is a good idea for us to continue with your employment, then fine, I would need a written apology for your behaviour and we would issue a written warning for your absence”. The Respondent argues that the text is entirely inconsistent with the Complainant’s evidence that he was fired. The Complainant states that this text is taken out of context and makes no sense when you read the earlier texts. The Complainant stated that he felt he was the one that should be apologised to. He denies that the opportunity was open to him to come back to work. He was fired and he wasn’t coming back. Maybe if the Respondent apologised to him he might have thought about it but he did not apologise so he didn’t.

18.03pm 6th January  “ I worked longer than anybody in the business that week, You didn’t give me a day off, check the roster….” He denied when asked that he took the days off in January because he felt he deserved days off having worked longer than contracted to on Christmas week.

Mitigation:

The Complainant has applied for about 10 jobs on jobs.ie and has done one or two interviews. He has not secured employment yet. He is on social welfare.

The Respondent has 14 stores. 5 are CBD stores and the rest E cigarettes stores.

The Complainant was originally employed in the E cigarette store, but a position came up in another store, a CBD store, he was offered that position and he accepted the offer. He was that Store’s Supervisor.  There were no issues with the Complainant until after Christmas. He was then late on the 27th and 28th December when he was rostered on. He didn’t turn up to open the store on time. On the 28th he didn’t turn up at all. The Respondent tried to contact him, but he wasn’t answering his phone. Then on the 29th he sent in a sick certificate. He was due back on the 4th January. At 11.30 am Mr X tried to call the store and nobody was answering the phone. He went to see what was going on. The Complainant was there. He came back later as a customer was in the store. When he came back, he asked him where he was between 11.30 and 1pm. He said that he had gone to the bank and then to physio. He then asked about the previous two days the week before when he wasn’t at work. He got very agitated and threw the keys at Mr. X. He then asked for the keys back because he wanted to get his belongings. He went out back to get his things. He didn’t come back. Mr. X went to look for him. He had left but in doing so he left the storeroom door open. He also took the keys with him.  Mr X had to get the keys from another employee. Mr X, via text message asked him to bring the keys back. He did receive them, but he did not reply. The text messages when back and forth for about 60/70 messages. Finally, he said that he had thrown them over the public balcony in the shopping centre. The keys had to be retrieved from security, but it took a few days. In those messages he accused the Respondent of being a liar and made all sorts of very serious allegations.

4th January Mr X sent a message “I expect you to return your store keys today… As far as I am concerned I don’t think we can continue to work with you after what I have seen today” The Complainant, in his evidence today stated that he deemed that to be his dismissal. However, he wasn’t fired. He could have replied, he could have apologised. He didn’t.

Prior to getting the keys we had to arrange to have the locks changed. They were changed at the end of January.

The Complainant was not dismissed. He did get very upset on the day. MR X said that he would probably get a written warning about his behaviour but that he could return to work if he apologised. That is set out in the text message exchange.  

The Complainant had an issue with his chair. It was broken. Mr X. told him to go online and buy one and have it delivered to the store. He doesn’t think he actually did that.

The Complainant also takes issues with some products that were being sold in the store. However, he was part of the group who arranged the store products. He never mentioned anything about the products during his employment. The stores have to be registered with the HSE. The store is regularly inspected by the HSE. There has never been a problem with any product. The product the Complainant takes issues with was only sold in the store since December. The HSE did an inspection in March 2023. There was no issue with the product.   

The Respondent admits that he did withhold his final pay until they got the final invoice from the locksmith. The WRC advised that he should be paid so the Respondent did pay him on the 5th May.

The Complainant alleges that he was unfairly dismissed from the Respondent arising out of a conversation about the sale of unauthorised products. The Respondent states that on the 4th January he did ask the Complainant to go home because he was so angry he couldn’t have him in the store serving customers in that state. He was not dismissed but had he returned to work he would have received a warning for his unauthorised leave just after Christmas. He also was expected to apologise for his disrespectful behaviour. The Complainant stated that it was nothing to do with being absent but had everything to do with certain products the Respondent was selling that he should not have been selling and when he asked him about it the Respondent fired him. Firstly, I do not accept that the Respondent was selling unlawful or illegal products. The HSE carry out regular inspections and have never taken issue with what is being sold. Leading on from that, if the Respondent was not involved in illegal activity, he would have no reason to fire the Complainant when he brought it up. On the other hand, it would seem that the Complainant turned up for and left work whenever it suited him, and he didn’t take too kindly to the Respondent challenging him about that on the 4th January. It was that challenge that led to him storming off and throwing the keys away. He demonstrated some of that behaviour at the hearing today. The Complainant was extremely difficult and at times disrespectful to both me and the Respondent’s legal representative. He repeatedly refused to answer the questions he was asked and repeatedly criticised or belittled the Respondent’s representative questions telling her the questions were “ridiculous” “nonsense” and “stupid”. He made numerous unsubstantiated very serious allegations about the Respondent and his business and took every opportunity he could to tarnish the Respondent’s reputation. He did not produce any evidence, documentary or otherwise to corroborate any of the allegations. He insisted repeatedly that he was right and everyone else was wrong. He was not open to the possibility that he might not be right or might be mistaken.

The Complainant alleges that he has not been able to get employment since he lost his role. He said that went for one or two interviews but was not successful. He has been out of work now since January 2022. I do not accept that he has made any real efforts to get employment therefore has failed in his legal obligation to mitigate his loss.

In all of the circumstances I find that the Complainant was not dismissed from his employment. It was open to him to swallow his pride, apologise and return at any stage. He made the decision not to. Even if the Complainant genuinely believed that he had been dismissed Mr X gave him the opportunity to return and he didn’t take it.

The Complaint is not well founded. In the circumstances I am not going to make any recommendation.

The complaint is not well founded and accordingly fails.

Dismissal. Industrial relations.