Adjudication Reference:  ADJ-00045843

Parties:

Complaint:

Date of Adjudication Hearing:  14/11/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant contends that he was unfairly dismissed following an incident in the workplace yard.  The Respondent denies the Complainant was dismissed.  Dismissal is in dispute.

Sworn evidence was given by the Complainant and by Representatives of the Respondent.

Summary of Complainant’s Case:

The Complainant gave sworn evidence and was cross examined.  Summary as follows:

He stated that he was employed as a lorry driver from 7 January 2022 to 15 February 2023.                 On 15 February 2023, he returned to the yard, parked up, had the back door of the lorry open and was about to tip the load when another driver Mr A backed into the lorry and caused damage to the mudguard, underneath on passenger door side.  Mr A had been on his mobile phone and had not seen him.  After this, the Transport Manager Mr B came asked him why he was parking and tipping in that place which was the wrong place.  He told the Complainant to get the lorry repaired in one of the garages used by the company, and that after that he didn’t know if there was any work for him.  Later Manager/Owner, Mr C was abusive to him and told him to “f… off out of the yard”.   Then he got a text from Mr C’s wife looking for his log book.  There were a few texts back and forth then about final pay and holiday pay.  There was no meeting, investigation or any procedure in relation to the incident.  The Complainant considered himself to have been dismissed.  He got some work 3 weeks after with lower pay, and then a few months after with better pay.  He estimated his losses to be in or around €6,300.

Summary of Respondent’s Case:

The Respondent denies that the Complainant was dismissed.

Sworn evidence was given by Manager/Owner Mr C, summarised as follows:

The company employs some 15-20 employees, operating a quarry and landfill.  Regarding the collision, he stated that as far as Mr A was concerned, the fault lay with the Complainant.  However, Mr C’s attitude was that they just had to get on with it and that is what he said to the Complainant.  There was no question of a disciplinary or investigation.   The lorry had to be repaired and there were trucks going up and down the road any of whom could have given the Complainant a lift back to the yard after he left it in for repair.  Mr C wanted him to drive a dumper truck as an alternative but the Complainant refused saying “I’m driving no dumper truck”.   The Complainant became very abusive to him and told him to “f… off” and that he would close the company down.  In answer to a question from the representative of the Complainant, the witness agreed that there was no follow up after the incident and the Respondent presumed the Complainant had left the employment after a heated argument in which he was abusive to Mr C.

Sworn evidence was given by Transport Manager Mr B, summarised as follows:

He stated that he is the Transport Manager organising transport and drivers for the workloads each day.  He gave his account of the aftermath of the incident which took place on 15 February 2023.    He stated that he said to the Complainant why did you tip where you did.  The following morning he told the Complainant to bring the truck to be repaired.  He did not send the Complainant home.  He did not know at that stage what work was available.

Findings and Conclusions:

In this case, dismissal was in dispute.  There was irreconcilable conflict of evidence between the parties in relation to the circumstances which gave rise to the ending of the Complainant’s employment.   It was submitted by the Complainant that he was told in no uncertain terms to leave the employment and this was followed up by requests for his dockets or log book and texts regarding holiday pay.  The Respondent witnesses stated that there had been a collision, that there was no investigation and the Complainant reacted in a heated manner and walked out of his employment.  I note the evidence given by the Transport Manager that he did not know what work could be allocated to the Complainant (on the morning after the incident) and that led to a heated argument.  The Complainant himself stated in evidence that he said to the Transport Manager “You brought me in for a half an hour for no work?” He then went home.  The evidence of Mr C that he offered the Complainant dumper truck work was strongly refuted by the Complainant.

Whether the Complainant in this case resigned or was dismissed, it has long been established that in circumstances where an employee leaves the employment in the heat of the moment, the onus is on the employer to follow up.  There was no follow up in this case, either by way of an investigation into the incident, or contact with the Complainant to ascertain if he was resigning from his employment.   In the circumstances, and on the balance of probabilities, I find that the Complainant was unfairly dismissed. I find that the appropriate remedy is compensation as re-instatement or re-engagement are not appropriate in the circumstances where the employment relation has clearly broken down.  I uphold the complaint and award the Complainant the sum of €3,000 compensation.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Based on the evidence and the reasons cited, and, I have decided that the Complainant was unfairly dismissed.   I award the Complainant the sum of €3,000 compensation.

Dated:   17/01/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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