ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028490
Parties:
| Complainant | Respondent |
Parties | Michael Connolly | Coldwinter Garden Centre Ltd |
Representatives | N/A | Susan Jones BL instructed by Jones Magee Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00036586-001 | 09/06/2020 |
Date of Adjudication Hearing: 21/01/2022
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021 and the parties agreed to proceed in the knowledge that decisions issuing from the WRC would disclose their identities.
This case was heard in conjunction with ADJ 28316 given that there was a significant overlap in evidence between the two cases.
The Complainant and one witness on his behalf as well as three witnesses for the Respondent gave relevant evidence at the hearing. All five witnesses made affirmations.
Background:
The Complainant commenced employment with the Respondent as a Garden Centre Salesman on 7th April 2018 and was paid a salary of €622 per week. He stated that he was dismissed from his employment in May 2020. The dismissal is disputed by the Respondent. |
Summary of Complainant’s Case:
The Complainant stated that on 22nd May 2020 at approximately 6:00pm in a phone call with his son, the Complainant in ADJ 28316, Mr F, an employee of the Respondent, informed his son that he was sacking him with immediate effect. The Complainant asked his son if he had asked Mr F if the owner knew about it and he said he did. The Complainant asserted that it was not Mr F’s decision to make and only the owner had the power to dismiss a member of staff.
Both the Complainant and his son decided to go into the Respondent’s premises and discuss why his son had been dismissed without following the procedures set down in law for dismissing an employee. The Complainant stated that he was there as his son’s witness, so he stood back. After Mr F had finished serving a customer, his son approached the cash desk and asked Mr F if they could talk about the situation, but Mr F immediately became angry and confrontational. Specifically, he came out from behind the counter saying, 'I said yesterday what I had to say and that was that.’
When the Complainant informed him that he wanted to talk to him about his son he instructed him to “stay out of this’ and added that ‘it’s none of your f***ing business’ and started shouting in front of staff and customers to get off the premises. The Complainant stated that he said no more because he was afraid that they would be physically assaulted. The Complainant added that he understood when he was informed by Mr F to “get off the premises” that he was dismissed from his employment. He also stated that he contacted the owner via text message on 28th May outlining his displeasure with the situation but highlighted that he did not respond.
The Complainant also stated that it was only he and his son who were put on temporary layoff as a result of the Covid restrictions and all other staff were kept, and a new staff member added. |
Summary of Respondent’s Case:
The Respondent stated that the Complainant had not been dismissed from his employment and denied that he had been told to get off the premises on 23rd May 2020. It was also asserted by the Respondent that the Complainant was happy to remain on lay off and did not request a return to work when the Covid restrictions were eased. |
Findings and Conclusions:
The Law Section 1 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows: (1) In this Act—
Analysis Dismissal as a fact is in dispute and therefore it is for the Complainant to establish that a dismissal in line with the definition set out under the Act occurred.
The Complainant stated in the first instance that the owner of the Respondent did not ask him to come back to work despite the Complainant having called him when the announcement was made by the government surrounding the lifting of restrictions in May 2020. The owner however said the Complainant did not discuss a return to work for himself in that phone call and only spoke about his son, who ultimately returned on 19th May. The owner therefore understood from this that the Complainant was happy to remain on temporary lay- off. While there was a dispute between the parties surrounding the content of this conversation, it was notable that there was no evidence presented by the Complainant to suggest that he had raised any concerns in writing surrounding the failure of the Respondent to bring him back to work when the restrictions lifted. Moreover, and crucially in my view, there was no reference whatsoever to the Respondent’s alleged failure to allow him to resume his employment in a text message that he sent to the owner on 28 May 2020. The Complainant also stated that he considered himself to be dismissed when Mr F told him to get off the premises during a verbal altercation on May 23rd surrounding the alleged dismissal of his son on May 22nd. While I note in the first instance that this was disputed by Mr F, I also noted the Complainant’s repeated assertions that Mr F did not have the authority to dismiss anyone and cannot therefore understand why he believed that Mr F could have dismissed him. Furthermore, while the Complainant did accept that the owner had the authority to dismiss him, he never made the owner aware that he had been dismissed as there is no reference whatsoever to his alleged dismissal by Mr F in the text message sent by the Complainant to the owner on 28th May 2020. In light of the foregoing, I find that no dismissal took place |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
I find that the Complainant was not unfairly dismissed for the reasons set out above. |
Dated: 14-02-2022
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Key Words:
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