SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
A & T DRAIN SERVICES LTD DRAIN DOCTOR
(REPRESENTED BY FERRYS SOLICITORS)
- AND -
(REPRESENTED BY SINNOTT SOLICITORS)
Chairman: Mr Hayes
Employer Member: Ms Connolly
Worker Member: Mr McCarthy
1. Appeal of an Adjudication Officer's Decision No(s)ADJ-2315 CA 3112-1
2. This is an appeal under section 8(a) of the Unfair Dismissals Act by A&T Drain Services Ltd (the Appellant) against a decision of the adjudication officer ref no ADJ-00002315 issued on 24 January 2017. The Appellant filed the appeal with the Labour Court on 3 March 2017. The case came on for hearing before the Labour Court on 25 July 2017.The following is the Determination of the Court:
The Appellant operates a plumbing company that specialises in drain clearance. It employs a number of drain technicians who undertake drain clearance work. It also employs a number of plumbers whose duties are primarily skills and trade based but who support other staff on an occasional as needs basis.
Mr Brian Duggan (the Complainant) was employed by the Appellant as a plumber between 4 January 2010 and 8 January 2016. He was paid €670 basic pay per week and in addition normally worked 5 hours overtime each week for which he received premium pay of 1.5 times his basic hourly rate.
On Friday 8 January 2016 he was notified by email that he had been assigned a urinal cleaning job the following Monday 11 January. He pulled into the Appellant’s yard around five pm on 8 January to return a jack hammer he had in his possession before he went home for the weekend.
He approached John Dempsey the Operations Director, told him he was a plumber and enquired why he had been assigned urinal cleaning duties for Monday a job which he considered should be properly assigned to a drain technician and not a plumber.
The interaction between the two led to the impugned dismissal in this case.
The Complainant states that Mr Dempsey dismissed him while Mr Dempsey states that he simply told him to park up the van and hand in the keys.
The Complainant submitted a complaint alleging unfair dismissal to the Workplace Relations Commission on 9 March 2016. The Adjudication Officer conducted an adjudication hearing into the complaint on 25 July 2016. He issued the following decision on 24 January 2017
- I have considered the submissions of both parties. As to whether a dismissal or a resignation took place I am faced with a conflict of evidence. What I can detect for the evidence presented is that an acrimonious discussion took place between the Claimant and his supervisor on 8 January 2016. I accept that the MD contacted the Claimant the next day and arranged to meet him. At this meeting the MD tried to persuade the Claimant to return to work. He declined to do so.
Therefore, I have decided that on the balance of probability that the Claimant formed the opinion that he was dismissed. However, this did not take place in a cool, calm and collected situation. Therefore I believe that the Claimant contributed to this situation.
I find the claim of dismissal and notice well founded in part and award the sum of €10,000.00 in compensation for lack of fair procedure
Position of the Parties
The Complainant states that he is employed as a plumber and that he is normally assigned plumbing work, but that he undertook Drain Technician work when required. . He submits that his van is equipped with the tools necessary to support Plumbing work. He submits that Drain Technicians are employed to undertake the work of drain clearance including urinal cleaning and are provided with vans equipped with the tools to undertake that work. He submits that on Friday 8 January 2016 he was notified by email that he had been assigned urinal cleaning duties the following Monday. He says that he returned to the yard that evening with a jack hammer he had been allocated and that he no longer needed. He submits that he approached Mr John Dempsey, the Operations Director, to ask why he had been assigned drain technician work for the following Monday. He says that Mr Dempsey told him to check with Mark in the office as he assigns work. He, Mr Dempsey, went on to say that there was no plumbing work available for Monday. He says that in response he asked should he start looking for another job. He says that Mr Dempsey then said “that’s it, give me the keys of the van”.
He says that he had been assigned the van and had it available to him 365 days of the year. He says that he travelled to and from work in the van and carried a considerable amount of personal tools in it. He says that when he was told by Mr Dempsey to “give me the keys of the van” that in his view amounted to a dismissal.
He says that he had no way of getting home and as he had a considerable volume of tools in the van he required to make arrangements to be collected by his brother. He says that, while waiting on his brother to arrive, he set about taking his tools out of the van. He says that Mr Dempsey told another person to watch what he was taking and ensure he did not take any company property. He says the only issue that arose related to a €2 tube of glue. Other than that he says his brother arrived and provided him with transport home.
He says that Mr Dempsey addressed his brother in a hostile manner when he was in the yard and an exchange between them took place that influenced his decision not to return to work when invited to do so the following day and again the following Monday and by the Managing Director on the following Tuesday. He says that the relationship had broken down and he felt he could not accept the offer of re-employment.
The Respondent’s Case
Mr John Dempsey says that he was in the yard on Friday the 8 January 2015 having collected a cherry picker for a job that had come in. He says that Mr Duggan came into the yard and approached him in an aggressive manner. He says he asked him why he had been assigned urinal cleaning work on Monday 11thJanuary. He says he told him he knew nothing about it and to go to the office to check with Mark Griffin who assigned jobs for the Respondent. He said Mr Duggan then said that he was a qualified plumber and that there was lots of plumbing work available. He says that Mr Duggan then asked him if he should start looking for another job. He says that he then said to Mr Duggan “if you don’t want to do the work park up the van and give me the keys”.
He said he did not know what was happening on Monday and he needed the keys to have the van and tools available to ensure that the assigned job could be carried out. He said he then walked away from Mr Duggan and went into the office.
He said that when Mr Duggan started taking his tools out of the van he told another employee to keep an eye on what he was taking to ensure he only took what was his.
He said that when Mr Duggan’s brother arrived there was an exchange between them and that it was hostile.
He said that he sent Mr Duggan a txt message on Saturday the 9ththat was not replied to. He said he tried again on Monday to contact him and that the Managing Director contacted and met him on Tuesday 12thJanuary. He said that Mr Duggan did not return to work.
He said he did not dismiss Mr Duggan.
Findings of the Court
The question the Court must decide is whether what transpired between Mr Duggan and Mr Dempsey in the yard on Friday 8 January 2016 amounted to a dismissal. If it did then the dismissal was unfair unless it was justified in all the circumstances of the case. However as Mr Dempsey says he did not dismiss Mr Duggan a finding of dismissal by the Court is inevitably a finding of unfair dismissal.
It is common case that Mr Duggan had the use of the company van on a 24/7 hour 365 day a year basis. It is also common case that he carried a significant number of personal and company tools in the van and that he travelled to and from work and between jobs in it. Accordingly the Court finds that the van was synonymous with his employment in the Respondent Company. In simple terms to be deprived of the van meant that he could not do his job.
In these circumstances when Mr Dempsey told Mr Duggan to hand over the keys of the van and made no arrangements for him to make his way home with his tools amounts in the Court’s view to a decision to deprive him of his capacity to continue in his employment. Taking the van was in effect a proxy for taking his employment from him.
Mr Dempsey says he did not intend to dismiss him.
The Court does not accept that proposition. Had he not intended to dismiss him he would have made arrangements for him to transport his tools and himself home or to public transport to enable him to make his way home. However he chose not to do this and had no conversation with him in this regard.
He says he needed the van to ensure that the assigned Monday job could be performed. However this is not consistent with his other evidence to the Court. In that evidence he said that he had no knowledge of the assigned job whatsoever. In those circumstances it is not credible that he could decide that Mr Duggan’s van was required to undertake it without checking the details with Mr Mark Griffin. He told the Court that he did not do so but nevertheless told the Complainant to park up the van and hand over the keys.
The Court also finds that his evidence is not credible in that he could equally have instructed Mr Duggan to report to the yard on Monday and have made a decision on the assignment of the van in light of the circumstances then prevailing. However he did not do this. Instead he chose to take the van from the Complainant some 60 hours before the impugned job.
The Court also notes that Mr Dempsey made contemporaneous notes of the conversation he had with Mr Duggan shortly after it ended. Those notes contain a brief summary of the dialogue that took place in the yard between them on the 8thJanuary. The final note says “give me the keys”.
Mr Duggan says that he told the Complainant Mr Duggan “if you don’t want to do the work park up the van and give me the keys”.
This conditional comment is not reflected in the contemporaneous note of the conversation Mr Duggan made on the day. It simply records the instruction to “give me the keys”.
The Court finds this is consistent with the evidence of Mr Duggan but not consistent with Mr Dempsey’s own evidence. Mr Dempsey states that this was a shorthand note and not a full account of what happened.
The Court finds that it is unlikely that Mr Dempsey went to the trouble of recording the conversation that took place but omitted a critical part of the final exchange.
The Court accordingly prefers Mr Duggan’s evidence and finds Mr Dempsey’s evidence unreliable and undependable.
Mr Dempsey also told the Court that he was not excited during the conversation but acted in a cool rational and clear minded manner.
On this basis the Court finds that Mr Dempsey was fully aware of the import of his decision to instruct Mr Duggan to hand over the keys of the van and that it amounted to a decision to dismiss him from his employment forthwith.
On this basis the Court finds that Mr Dempsey dismissed Mr Duggan.
In accordance with section 6 of the Act the dismissal is unfair and the Court so determines.
The Court notes that the Complainant states that he has found great difficulty finding work since his dismissal and that he has undertaken a number of courses to upgrade his skills in an attempt to increase his capacity to gain employment. It further notes that he has also started the process of investigating the possibility of starting his own business as an alternative way of providing himself with paid employment.
The Court was presented with no evidence of any job applications made by the Complainant nor of any contact with the employment finding services of the state.
To that extent the Court finds that the Complainant has not produced evidence of a determined effort to find work and this factor was taken into consideration by the Court in deciding on the appropriate remedy in this case.
The Respondent told the Court that it would be willing to re-engage the Complainant but that compensation was the preferred mode of redress.
Taking all matters into consideration including the Complainant’s gross weekly pay and his rather weak efforts to mitigate his loss, the Court finds that the maximum award of two times his gross annual pay is not appropriate in this case. The Court finds that the sum of €15,000 is appropriate compensation in all the circumstances of this case.
The Court determines that the respondent dismissed the Complainant, that the dismissal is unfair and orders the Respondent to pay the Complainant compensation in the sum of €15,000.
The Court so determines.
Signed on behalf of the Labour Court
28th July, 2017______________________
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.