ADJUDICATION OFFICER DECISION
A Painting & Decorating Contractor
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, andfollowing 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.
The Complainant, a painter/foreman, worked for the Respondent, a painting and decorating contractor, for approximately 2.5 years before his employment terminated in or around April 2018.
The Complainant submitted his complaint for unfair dismissal, under Section 8 of the Unfair Dismissal 1977, to the Workplace Relations Commission on 27 April 2018.
The case was initially scheduled for hearing on 12 September 2018. The Respondent failed to attend on the day as he was out of the country on leave. However, given that the Respondent had previously sought an adjournment due to his absence on leave and, on the basis, that he had already submitted a written response to the Complainant’s complaint, I granted the requested adjournment.
The rescheduled hearing took place on 8 November 2018, with both the Complainant and the Respondent in attendance.
Summary of Complainant’s Case:
According to the Complainant’s evidence, he had been having ongoing issues with the Respondent in relation to late payment of wages. According to Complainant, unlike most of his colleagues, payment of his wages was frequently delayed.
With regard to his specific complaint, the Complainant stated that, on the day of his alleged dismissal, he had an argument with one of his colleagues. He further stated that, when the Respondent arrived, he told him (the Complainant) to “leave if he wasn’t happy”. According to the Complainant, he then left the site in order to avoid an argument.
The Complainant stated that he has not worked for the Respondent since that day. According to the Complainant, he is still owed outstanding wages and holiday pay. The Complainant also stated that he has still not received his P45.
Summary of Respondent’s Case:
The Respondent contends that the Complainant was never dismissed. In addition, the Respondent stated that he has not received any resignation letter from the Complainant.
At the Oral Hearing, the Respondent give detailed evidence in relation to an argument that had arisen between the Complainant and one of his colleagues on a work site. According to the Respondent, the issue arose in relation to a machine which the Complainant’s colleague refused to start because he (the colleague) claimed it was leaking oil. The Respondent stated that, as he went to inspect the machine, he requested the Complainant to calm down. The Respondent further stated that at this point the Complainant got into his van and left.
According to the Respondent’s evidence, he tried to contact the Complainant on numerous occasions since then and sent him frequent texts. However, the Respondent stated that the Complainant failed to make contact with him.
The Respondent confirmed that the Complainant has not been issued with his P45, because, as far as he (the Respondent) is concerned, the Complainant never left his employment. In support of this, the Respondent stated that the Complainant was issued with his 2018 P60 in December 2018.
In conclusion, the Respondent stated that on the day the Complainant left the site they were working on, he took with him a considerable consignment of paint, the property of the Respondent, which has never been returned. In addition, the Respondent also stated that when he left, the Complainant took a security FOB for a government site they were working on at the time. According to the Respondent’s evidence, the Complainant’s failure to return the FOB has created a serious problem with the government agency, including potential loss of contracts.
In addition to the evidence presented by the Complainant and Respondent, I also heard evidence, on the day, from a witness, who was present on the day the Complainant left the site. The witness’ evidence corroborated that of the Respondent submission in relation to the altercation between the Complainant and his colleague.
In addition, the witness stated that he could not recall any conversation between the Complainant and the Respondent on the day in question.
Findings and Conclusions:
The Complainant submitted a claim for unfair dismissal under the Unfair Dismissal of Act, 1977. In order to successfully prosecute a claim for unfair dismissal it is necessary, in the first place, to establish that a dismissal has taken place.
The aforementioned Act defines “dismissal” of an employee as follows:
“(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) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or
(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;”
Having carefully considered all the evidence adduced in this case, I find no evidence to support the contention that a dismissal in line with subsection (a) above has taken place. With regard to subsection (b) above, I note that the Complainant has not submitted a claim for constructive dismissal. In addition, I find that subsection (c) does not apply in this case either.
Consequently, taking of the above into consideration, I find that the Complainant has failed to establish that a dismissal has taken place and, as a result, his claim for unfair dismissal is not well founded.
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.
Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s claim of unfair dismissal is not well founded and is, therefore, rejected.
Dated: August 21st 2019
Workplace Relations Commission Adjudication Officer: