FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : FAMILY MARKET - AND - DAVID MORRIS DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Marie Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer's Decision No.ADJ-00001356.
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 9(1) of the Unfair Dismissals Act, 1977 to 2015. A Labour Court hearing took place on 29th November, 2017. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mr Darwesh Karim trading as Family Market against an Adjudication Officer decision ADJ-00001356 in a complaint by Mr David Morris former employee, pursuant to the Unfair Dismissals Act 1977 to 2015 (the Act) in a claim that he was unfairly dismissed by his employer.
The Respondent stated that he was not present at the Adjudication hearing as he was not notified of the hearing. The Adjudication Officer awarded the Complainant €5,000 euro compensation to be paid within 4 weeks.
In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Mr Morris is referred to as the complainant and Family Market is referred to as the Respondent.
Background
The Complainant was employed by the Respondent between 18th April 2014 and 4thDecember 2015 when his employment terminated. He presented a complaint to the Workplace Relations Commission on the 5thJanuary 2016. His complaint is that the Respondent has contravened the Act by dismissing him without any process following a dispute at the end of his shift on the 4thDecember 2015. The Respondent's position is that he did not sack the Complainant, the Complainant stormed out of the store then looked for his P45. Dismissal is clearly in dispute in this case therefore it falls to the Complainant to show that a dismissal took place.
Complainant’s case
The Complainant told the Court in evidence that on the 4thDecember2015, he was mopping the floor just before his shift ended. The Respondent instead of closing the shop let more customers into the shop. The Complainant indicated that his shift was over and that he was heading home The Respondent told him to wait till the customers were finished and re-mop the floor. The Complainant indicated he was leaving as his shift was over. It was his evidence that this was met by a barrage of verbal abuse and threats to cut his hours if he did not wait and mop the floor. His next shift was the following Wednesday it was his intention to turn up for that shift but before Wednesday possibly on the Monday or Tuesday he got a text saying he was sacked. He no longer has the text as the phone he received the text on is broken. In relation to the wording of the text he thought it said” I can’t work with you any more” initially he indicated that he responded by text saying “are you letting me go” but then changed his evidence to “are you sacking me” and that he got a response saying yes. He didn’t follow up any further other than when he met the Respondent on the street to ask for his P45, cheque and a letter saying he was not working there anymore. As far as he could remember that was in and around the 11thof December 2015.
Respondent’s case
The Respondent in his evidence to the Court denied that the Complainant had been sacked and denied that he had sent a text to that effect. It was his evidence that he does not engage with staff by text message but does send emails.
The Respondent told the Court that he felt the Complainant was being unreasonable in not staying to finish the mopping and that there was an exchange of words. The Respondent had allowed the Complainant time off earlier in the day to meet up with his brother and therefore could not understand why the Complainant would not stay on to finish the mopping. He did not sack the Complainant. The Complainant walked out of the shop uttering expletives. The Respondent had expected him to turn up for his next scheduled shift the following Wednesday but that did not happen. They both lived locally and when their paths had crossed prior to the Wednesday the Complainant had requested his P45, his cheque and a letter for social welfare. The Respondent was aware that the Complainant was looking to do a course and it is his belief that was why he left his employment. The Respondent would have no problem taking him back on in one of his businesses.
The applicable law
Section 1 of the Act defines dismissal in the following manner
1. “dismissal”, in relation to an employee, means—
(a) 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,
(b)……
Section 6(1) states
“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”
Issue for the Court
As dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act.
Discussion
The Complainant’s case is that he was dismissed by the Respondent by text three or four days after there had been a disagreement between them about mopping the floor at the end of his shift. Unfortunately, the phone that contained the text message is broken so he could not produce the actual text or a printout out of it. In his evidence, he was unsure as to the actual wording of the texts he received and sent but was sure it meant he was sacked. The Respondent in evidence indicated that he did not send a text message. The Complainant was not dismissed, that his job was available to him and that even now he would be prepared to give him a job in one of his businesses.
Taking into account all the circumstances of this case the Court prefers the evidence of the Respondent in relation to the incident on the 4thDecember 2015 and what followed.
The Court cannot see how as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as defined by the Act.
Determination
Having carefully considered the submissions both written and oral and the evidence given at the hearing the Court cannot find that the Complainant’s employment came to an end by way of dismissal.
The Court determines that the Complainant’s complaint is not well founded. The appeal is upheld. The decision of the Adjudication Officer is set aside
The Court so determines.
Signed on behalf of the Labour Court
Louise O'Donnell
15th December 2017______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.