Complainant

Respondent

Parties

Florin  Florescu

Shammaelectronics Ltd

Representatives

Self-represented

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-00062224-001

14/03/2024

The Complainant was employed by the Respondent from 2021 until 24 February 2024. Dismissal is in dispute.

Oral Testimony of the Complainant

The Complainant was employed as an electronic technician. He worked in the workshop at the back of the store fixing phones, laptops, and electronic devices. On 24 February 2024 he asked Mr Brennan to complete a job for a customer. When Mr Brennan did not do this, the Complainant got upset and went back into the workshop. He was alone there when the owner, Mr Khalid, came in. Mr Khalid asked the Complainant why he had that conversation with Mr Brennan. The Complainant said to Mr Khalid that “every time I ask someone for something, no one listens to me”. Mr Khalid responded: “OK then I don’t need you in the shop anymore”. The Complainant responded: “OK, I’ll leave, let me pack my stuff”. Mr Khalid responded: “no don’t take anything”. He asked the Complainant for the shop mobile phone which the Complainant had borrowed. The Complainant went to his car. Mr Khalid followed him and asked for the keys of the store, which the Complainant gave to him.  

The Complainant confirmed to the hearing that he did not attend for work the next day he was scheduled to be in. No one looked for him either. He understood from what Mr Khalid said to him, and the fact that Mr Khalid had asked for the phone and the keys of the store, that he had been dismissed. The Complainant has still not received his personal items back from the Respondent.

The Complainant took the hearing through his efforts to mitigate his loss since his dismissal.

The Complainant declined the invitation to cross-examine both witnesses for the Respondent. In closing, the Complainant submitted: “I have personal issues. I was angry because everyone was telling me what to do and how to do my job and telling me how long it would take but I was the technician. The TV was only on in the background. I wasn’t aggressive and I had already opened the PlayStation to fix it. The argument was not over the PlayStation but the firestick, so I was pissed with him and my friend was onto me and that’s why I was putting pressure on Niall. He told me he didn’t need me in the shop anymore and he never said I couldn’t leave. I didn’t mean to say later that “I left”. Mr Brennan could have contacted me.”

The Complainant confirmed to the hearing that at no time did he ask for his job back, and that when he met with Mr Khalid in the service station, he told him he was starting his own business and he needed his personal tools from the shop. He was “only joking about breaking the shop with the hammer. They were just angry words. He didn’t ask me if I was coming back. He had plenty of opportunity. I didn’t resign”.

Oral Testimony of Mr Brennan

Mr Brennan is the manager of the store. He outlined that the Complainant, Mr Khalid, and he were friends who came together to form a business in 2019. The Complainant was an employee of the business since 2021.

The Complainant is prone to outbursts. Other staff members are afraid to ask him to do anything. If something is to be done Mr Brennan has to ask the Complainant to do it as he will not take instruction from more junior members of staff. The Complainant dictates what will be done, how it will be done and how long it will take. Every time Mr Brennan addressed his conduct the usual response he got from the Complainant was: “I’m being abused and I’m not respected”. Mr Brennan would then have to contact the owner to come into speak with the Complainant. The Complainant had a difficulty with everyone else less qualified telling him what to do.

On 24 February 2024, Mr Brennan contacted Mr Khalid to come into the store to speak with the Complainant. Mr Brennan was “getting it from a customer” about how long it was taking to fix a PlayStation. The Complainant had the PlayStation in the workshop and it should have been fixed at this stage. The Complainant came out into the store and asked Mr Brennan had he taken care of firesticks for him. These firesticks belonged to “his customers”. The Complainant often did odd nixers. Mr Brennan outlined that the Complainant should not be doing them but he had an idea they were going on. Mr Brennan was extremely busy with customers and repairing laptops that the Complainant should have been doing and he simply did not have the time to get to repair the firesticks. Mr Brennan said to the Complainant that he was busy and if he wanted them that badly he should do them himself instead of watching TV in the workshop. The Complainant returned to the workshop. Mr Khalid went into the workshop to speak to the Complainant. Shortly after, Mr Brennan saw the Complainant come out of the workshop and walk through the store. He had his bag on his shoulder. Mr Brennan said he did not hear what was discussed between the Complainant and Mr Khalid while they were in the workshop. Mr Brennan said that the Complainant was “prone to leaving and has done it several times previously” and that “he would always return”.

Three days later Mr Brennan sent text messages to the Complainant including: “are you still alive?”, and then “are you not talking to me?”. When he got no response, he asked another staff member to contact him. This time the message sent was: “are you on holidays?” These messages were opened to the hearing. The Complainant responded to his work colleague saying: “I left”. The staff member responded: “Oh sorry to hear”. The Complainant responded: “Don’t be I’m not [laughing emoji]”.

The phone in the Complainant’s possession, which he was asked to return, was a customer phone which he was fixing. This is the reason he was asked to leave it in the workshop on 24 February 2024.

Oral Testimony of Mr Khalid

Mr Khalid submitted that he went to the workshop where the Complainant was working. The Complainant was watching TV. He asked the Complainant to finish work on the PlayStation. The Complainant opened a PlayStation that had recently come in for repair but it was not the one that had come in the week previous which Mr Brennan had asked the Complainant to fix first. Mr Khalid asked him to fix the PlayStation that Mr Brennan had asked him to do. The Complainant responded no, he would not, because Mr Brennan has not fixed the firesticks for him. The Complainant became aggressive and cursed. Mr Khalid responded: “I don’t need a worker like you in this shop”. The Complainant got up to leave and Mr Khalid asked him where he was going. The Complainant responded: “you said you don’t need me in the shop”. Mr Khalid corrected him by saying: “no, I said I don’t need a worker like you. You can’t leave you have a job to do”. Mr Khalid submitted that the Complainant had personal issues (details were given in evidence) and that he owed him a significant amount of money and he did not want the Complainant to leave as he had no other way of recovering the money other than through gradual salary deductions. Mr Khalid told the hearing of the occasions he had lent money to the Complainant and why, and that he had treated him as a family member for years, including getting him a doctor, lending him his car etc. He asked the Complainant for the shop keys as he “could not trust him with them”.

Mr Khalid submitted that he waited two weeks before contacting the Complainant. It was normal for the Complainant to leave and then come back. The Complainant told Mr Khalid: “I’m not coming back, I’m gone”. A couple of days later the Complainant contacted Mr Khalid and asked to meet with him at a service station. Mr Khalid met with the Complainant as requested. The Complainant was very agitated. The Complainant told Mr Khalid that he had a hammer and he wanted to go to the shop and smash it. The Complainant said to Mr Khalid: “I can’t get social because you didn’t dismiss me”. Mr Khalid asked was the Complainant coming back, to which the Complainant responded: “no” and he said he wanted Mr Khalid to cease his job so he could get social welfare. Mr Khalid agreed to this and they shook hands as he did not want the Complainant back at the shop. Mr Khalid then gave an instruction to his accountant to end the Complainant’s employment. Mr Khalid gave evidence concerning threatening incidents which occurred thereafter and the involvement of the Gardaí in relation to these concerns.

Relevant Law

Section 1(a) of the Unfair Dismissals Acts 1977 – 2015 (“the Acts”)  defines dismissal as including “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 .  . . .”

There must be a dismissal as defined by s 1 of the Acts before a Complainant can obtain redress under the Acts. Where the fact of dismissal is in dispute, it is for the Complainant to show that a dismissal occurred (Walsh v Sweeney, UD 751/1991). If that burden is discharged, the burden of proof then shifts to the Respondent to show that the dismissal was carried out fairly.

Section 6(1) of the Acts provides that the dismissal of an employee shall be deemed to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(7) of the Acts provides that in determining if a dismissal is an unfair dismissal, regard may be had to the: (a) reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) extent (if any) of the compliance or failure to comply by the employer with a disciplinary procedure or with the provisions of any code of practice.

Section 7(1) of the Acts provides:

“Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement . . .  or

(b) re-engagement . . . or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances . . . . ”

Findings

Dismissal is in dispute in this case. I find the Complainant has not discharged the burden on him to show that a dismissal occurred on 24 February 2024 for the following reasons. I find it was unreasonable for the Complainant to construe the words said by Mr Khalid on 24 February 2024 as a dismissal. I prefer the evidence of the Respondent that the Complainant’s conduct was volatile and that he was prone to doing as he pleased, including leaving his workplace for days and returning when it suited him. I accept the evidence of Mr Brennan that he assumed the Complainant would return within days as he had done many times previously. I am satisfied that, on 24 February 2024, following the verbal exchange between the Complainant and Mr Khalid, the Complainant intended to resign that day when he walked out of the premises. I accept the evidence of Mr Khalid that he did not request the company accountant to cease the Complainant’s employment for several weeks after 24 February 2024 and only when the Complainant confirmed he was not returning as he intended to start his own business.  

I find the Complainant resigned his employment on 24 February 2024. This complaint under the Unfair Dismissal Acts, 1977-2015 is not well-founded.

I decide this complaint under the Unfair Dismissal Acts, 1977-2015 is not well-founded.

Dismissal in dispute.