Complainant

Respondent

Parties

Tomasz  Smuga

Portlaoise Stone Centre Ltd t/a  Portlaoise Stone Centre

Representatives

Joanna Kwiatkowska, Consultant

 Des Culliton, Consultant

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-00036017-001

06/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00036018-001

06/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00036019-001

06/05/2020

The Complainant gave his evidence on affirmation as did his wife, Martina Smuga.

Terry Swayne, Director gave evidence on affirmation for the Respondent as did Jenny Swayne, Office Manager, and Shauna Rafter, Office Administrator.

The Complainant referred the complaint for unfair dismissal, minimum notice and failure to provide a contract of employment on 6 May 2020.

The Respondent disputed the dismissal, submitting the Complainant resigned from his employment.

It was agreed the Complainant’s commenced employment on 16 January 2006. The Respondent disputed the Complainant’s end date of 16 December 2019, stating it was 14 December 2019.

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It was the Complainant's evidence that he had been employed by the Respondent since 16 January 2006 as a stonemason and had served in that role for nearly 14 years. From September 2019 onward, he was the only employee of the business. He stated that he had never previously experienced issues with the Respondent and described himself as punctual, hardworking, and trustworthy qualities he said were acknowledged by the Respondent on several occasions.

It was the Complainant's evidence that he regularly worked Saturdays to assist the Respondent with the workload, especially when working alone in the workshop. On 14 December 2019, after completing his work, he raised an issue regarding non-payment of wages. He stated that the Mr Swayne became aggressive, shouted at him, reproached him, and threw a purse at him. He decided to go home.

The Complainant further stated that on 16 December 2019, when he reported to the workplace at 8:00 a.m., he was told by the Mr Swayne that he no longer worked there and was refused entry to the premises. He was subsequently dismissed. A few weeks later, he received a letter from the Respondent alleging that the Complainant had terminated the employment himself. The Complainant disputes this version of events, asserting that he was dismissed without justification.

The Complainant’s wife gave evidence of her engagement with the Respondent and in particular Mr Swayne after her husband arrived home from work in a very upset state. It was her evidence that Mr Swayne was not aggressive towards her but could not explain what happened on 14 December 2019 but said he had the right to fire him as he was the employer. She added Mr Swayne told her that her husband was not allowed to return to the work premises where he abused Mr Swayne. Under cross examination, Ms Smuga said she asked for a letter stating her husband was dismissed but was not given that letter.

Financial Loss

It was the Complainant’s evidence that he worked up to 48 hours a week. He received a pay increase from 8 November 2019 and earned €528.24 gross per week.

The Complainant stated he did not work after December 2019 and was on Illness Benefit and subsequently, an Invalidity Pension.

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It was the Complainant’s evidence that he was not paid his minimum notice.

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It was the Complainant’s evidence that he did not receive a contract of employment.

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The Respondent disputed that the Complainant was unfairly dismissed or dismissed at all.

Mr Swayne’s evidence was that the Complainant commenced full-time employment with the Respondent in January 2006 as a General Operative. He was retained in employment, albeit on reduced hours, during the recession.

The Respondent stated that the Complainant’s employment was largely uneventful until 2018, when he became dissatisfied. The primary source of this dissatisfaction related to his rate of pay. However, the Respondent asserted that the Complainant was not in a position to increase his earnings as he was receiving Family Income Supplement (“FIS”) and wished to maintain his eligibility for that payment along with his medical card. The Complainant was given a pay increase in October 2019.

Describing the events of 14 December 2019, it was the Respondent’s evidence that the Complainant worked from 8:00 a.m. to 1:00 p.m which was the norm on a Saturday where he was paid cash for the hours. He described the Complainant has been in bad form.

 Upon returning from a job in Tipperary, Mr Swayne attempted to hand him his wage packet. At that point, the Complainant allegedly became agitated, used abusive language, and threw the wage packet back at Mr Swayne. He then walked off the job, leaving the company van behind which he would usually take home with him. The Respondent took this behaviour as a resignation from employment.

On the following Monday, 16 December 2019, the Complainant returned to the workplace at 8:00 a.m. where he met Mr Swaye. The Complainant was described as again being aggressive towards him so he walked away. The Complainant was shouting at Mr Swaye , saying he wanted his “papers” with Mr Swayne stating he walked away from him and did not engage. The Complainant left the premises at 8:15 a.m.

Mr Swayne ‘s evidence was that the Complainant returned at approximately 8:45 a.m. with his wife, Martina, who also worked as the office cleaner. Mr Swayne attempted to tell Mrs Smuga that her husband had been very aggressive, and he would not abuse him, as his employer. She apologised for the Complainant’s behaviour and explained that he had been working three jobs at the time. It was his evidence he had allowed the Complainant to leave at 5pm because he was told the Complainant was undertaking a course.

At that stage the Complainant left the key to the premises on the table. He subsequently returned to remove his equipment from the workplace.

It was the Respondent’s evidence that on 19 December 2019, the company received a registered letter from the Complainant containing a medical certificate from his GP, stating that he had sustained a back injury at work. Mr Swayne had been no indication of any injury when the Complainant left the premises around 2:15 p.m. on 16 December 2019. He did state that he became aware the Complainant attempted to lift the crane, which fell before eventually placing it in a friend’s van. The Respondent subsequently sent a letter dated 31 December 2019 to the Complainant outlining its version of events and denying any injury.

Mr Swayne denied in cross examination that the Complainant was limping on Saturday 14 December 2019 at work. He denied having knowledge of the Complainant having an operation on his back in Poland in 2011.

Ms Shauna Rafter, who worked as a Secretary for the Respondent, gave evidence that she was working on 14 December 2019. It was her evidence she saw the Complainant leaving the premises without his van. She accepted in cross examination that she did not see the interaction between the parties, but accepted Mr Swayne was upset upon his return to the office.

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On the basis the Complainant resigned from his employment, no notice payment was made by the Respondent.

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It was Mrs Swayne’s evidence that the Complainant was provided with a contract of employment which she administered. An unsigned copy was presented at the hearing. 

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Dismissal was in dispute and therefore, it must first be decided if the Complainant was dismissal or resigned from his employment in December 2019.

Section 1 of the Unfair Dismissals Act is defined as

“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) 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 the evidence of both parties, the main point at issue is the interpretation of the interaction on Saturday, 14 December 2019. Both parties agreed that the exchange between the Complainant and Mr Swayne was not of the standard expected in the workplace. It appears to have occurred without prior warning.

What does appear to be the case is that there was a build-up of frustration on the part of the Complainant, for reasons which may have related to pay, the fact that he was working in three jobs, or general miscommunication. This ultimately resulted in a breakdown in the relationship between the parties.

It is noted that the Complainant left the workplace on 14 December 2019 without the company van and was clearly unhappy at the time. This was supported by the evidence of Ms Rafter.

It is also undisputed that the Complainant returned to the workplace on the following Monday morning. Mr Swayne accepts that he did not engage with the Complainant at that point, as the Complainant was shouting at him. Mrs Smuga made unsuccessful attempts to resolve the issue between the parties. It was during this interaction that the Respondent first became aware that the Complainant had been working two other jobs while also employed by the Respondent. While this fact of itself cannot considered in light of a complaint of unfair dismissal, it is of note where it is clear the Complainant was frustrated by something bigger than the interaction on 14 December 2019.

The only documentary evidence relating to the termination of the employment relationship is the letter dated 31 December 2019, in which the Respondent denied dismissing the Complainant, stating that he had resigned, and raised concerns about his medical certificate. It is of particular note that at no point did the Complainant respond to that letter to clarify the situation at any stage.

This is an unfortunate situation, particularly given that the parties had worked together for many years, and that the relationship ended on such a negative note. However, on the balance of probabilities, it is found that the Complainant was not dismissed from his employment, but instead, through his actions and approach, resigned for his own reasons.

It is therefore found in favour of the Respondent on the preliminary issue. The Complainant has not satisfied the burden of proof that he was dismissed.

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In light of the above decision, I find the Complainant is not entitled to payment in lieu of minimum notice. I find the Minimum Notice and Terms of Employment Act 1973 was not contravened.

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A copy of a contract of employment was furnished at the hearing. While it is accepted it is unsigned, Section 3 (1) of Terms of Employment (Information) Act 1994 requires that the terms and conditions of employment be furnished only to the employee.

For this reason I find the complaint is not well founded.

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The Complainant was not dismissed; therefore, he was not unfairly dismissed.

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I find the Minimum Notice and Terms of Employment Act 1973 was not contravened.

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I find the complaint is not well founded.

Unfair dismissal