Complainant

Respondent

Parties

Kleiton  Da Costa Felipe

Jabar Mohamad t/a Gardiner St. Drycleaners

Representatives

Self-represented

 No appearance at the hearing.

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-00045275-001

20/07/2021

The complainant was employed as a shop assistant by the respondent in a dry-cleaning business.  He commenced employment on 13 March 2017.  He worked 20 hours per week, Wednesday to Saturday, at a rate of €15 per hour.  The complainant claims he was unfairly dismissed on 18 July 2021.  He submitted a complaint to the Workplace Relations Commission on 20 July 2021.

The respondent did not attend the hearing.  In a written submission, received by email, it states that the complainant left his employment in the middle of his working hours on 18 July 2021.

The complainant submitted a complaint of unfair dismissal.  On the complaint form he states that there was no reason given for his dismissal.  In the narrative the complainant states that “On Sunday 18/07 following a small talk the owner told me, “If you are not happy you can leave” and to avoid that talk turning into a serious argument I decided to leave before his shift finished.”

It is the complainant’s position that the owner dismissed him without a warning or the minimum notice period.

The complainant gave evidence on oath.

The complainant stated that he had been working for the dry-cleaning business since 2017. 

Customers were given a collection docket when they left their items into the shop for cleaning.  If a customer did not have the collection docket when they came in to collect their items there was an extra charge of €2.  On Sunday 18 July the complainant was dealing with a customer who wanted to collect two items but had just one docket with them.  It was easy to find the two items and did not take very long.  The complainant stated that he asked the owner if he should charge that customer the extra €2.  The complainant stated that the owner was rude and shouted at him saying he should pay more attention to the shop.

The complainant explained that he had asked about the extra charge as the regulations were not always applied.  After the customer left the talk continued.  The complainant stated that he had some arguments with the owner previously, but he always returned to work for his next shift.  The complainant stated that during the talk the owner told him, “If you want to leave, leave”.  So, to avoid a fight the complainant left without finishing his shift.

The complainant stated that before he left the owner told him that he would stop his money.

In reply to questions from the Adjudicator the complainant stated that the respondent had paid him up to and including the last day he worked. 

The complainant stated that he did not receive notice of his dismissal.  He stated he sent an email to the owner but did not receive a reply.  He then sent a WhatsApp message two days later.  He asked for payment for two weeks’ notice as he didn’t want to go legal.  The owner replied that he had left work. 

It is the complainant’s position that he was unfairly dismissed. 

In reply to a question from the Adjudicator the complainant stated that he got a job two weeks’ later as a shop assistant in a grocery store.  The hourly rate was €10.20 working 40 hours per week.

The respondent did not attend the hearing.

The respondent sent two written submissions to the WRC by email dated 20 August and 09 September 2021. 

From the written submission I note that it is the respondent’s position that the complainant left his employment during his working hours on Sunday 18 July 2021.  It is submitted that there was an exchange of words about the handling of extra charges following which the complainant left immediately.  The respondent in his submission states that he told the complainant that if he left, he would stop his payment. 

The respondent in his written submission states that he did not have any contact from the complainant until three days later.  The respondent replied that the complainant had told him he wanted to leave and so he had offered the job to someone who had worked for him in the past.  The complainant then texted claiming he was due two weeks’ notice as he had been dismissed.

It is the respondent’s position that the complainant was not dismissed.

CA-00045275-001

Complaint submitted pursuant to Section 8 of the Unfair Dismissals Act, 1977.

There was no appearance by or on behalf of the respondent at the hearing.  The complainant’s evidence, given on oath, was therefore uncontested.  The complainant’s evidence is that he was unfairly dismissed by the respondent.

Legislation

The Act at section 6 (1) provides the following concerning unfair dismissal:

Unfair dismissal. 6.— (1) 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.

The dismissal of an employee is by this section deemed to be unfair unless there are substantial grounds justifying the dismissal.  It is therefore usually for the relevant employer to set out substantial reasons why the dismissal of an employee might be justified.  In this case the respondent employer did not attend the hearing.  In the absence of sworn testimony from the respondent I must accept the sworn testimony of the complainant concerning the circumstances of the termination of his employment.

The Act at section 1 defines dismissal 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.

Evidence

The complainant in his evidence stated that he had asked a question of the owner about an additional charge of €2 for a customer who did not have a ticket for a particular item they wish to collect.  The complainant explained that he had asked this question because, although he knew it was a general rule to make such a charge, that rule was not consistently applied and because it had not taken long to locate the item.  The complainant stated that the owner shouted at him and was rude.  After the customer left the talk between the complainant and the owner continued.  The complainant stated that the owner said to him “if you want to leave, leave”.  The complainant stated that he wanted to avoid a fight, so he left the premises before the end of his shift having been told to leave by the respondent.

The complainant stated that the owner told him he would stop his money.  In the respondent’s written submission, the owner states that he told the complainant the if he left, he would stop his payment.  The complainant contacted the respondent two days after this disagreement to check if the respondent was going to pay him.  Normally the complainant would not be due back in work until Wednesday, so this exchange was before his normal return to work day.  The respondent replied, by WhatsApp message, that he had stopped the complainant’s payment to the bank, stopped his payslip and instructed his accountant to stop payment for ever.  In a further message the respondent stated that he had given the job to someone else.

Finding

I have carefully considered the sworn testimony of the complainant together with the copies of the WhatsApp messages he supplied after the hearing.  I am satisfied that the complainant believed he was dismissed from his employment by the respondent during his Sunday shift.  The dismissal was confirmed in the exchange of WhatsApp messages two days later when the respondent informed the complainant that he had instructed his accountant to stop payment for ever and that he had given the job to someone else.

The complainant was a credible witness and gave sworn testimony of the circumstances of the termination of his employment.  The legislation provides that the dismissal of an employee is deemed, for the purposes of the Unfair Dismissals Act, to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal.  The respondent did not attend the hearing to provide evidence of any substantial grounds to justify the dismissal.

The complainant provided copies of WhatsApp messages exchanged with the respondent.  The respondent confirmed by message that he had stopped payment to the complainant, had issued an instruction to his accountant to end payment for ever and had replaced the complainant with another employee.  Given that the complainant had worked for the respondent for over four years’ the respondent’s hasty action, within two days, to cut off all contact with the complainant and appoint a new employee to the post confirms the respondent’s intention to dismiss the complainant.  I am satisfied that the respondent terminated the complainant’s contract of employment without notice.

I find the complainant was dismissed from his employment by the respondent and that dismissal was an unfair dismissal.  The complainant is entitled to redress for his unfair dismissal.

Redress

The complainant was diligent in seeking other employment and obtained another job two weeks’ later.  In his new employment the complainant worked a 40-hour week but at the lower rate of €10.20per hour.  After three months with his new employer the complainant was promoted to the post of supervisor.  The complainant provided copies of his payslips from the respondent and from his new employment.  The complainant does not seek reinstatement or re-employment, having found alternative employment.  I find that compensation is therefore the appropriate form of redress.

The complainant’s suffered a complete loss of income for two weeks and then a loss due to the lower hourly rate until he was promoted three months later.  The Act provides the following at section 7 (c) (i) concerning compensation:

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

The complainant was unfairly dismissed.  Having regard to all the circumstances, I decide that it is just and equitable to award the complainant compensation in the amount of €1,848 being the full loss of income for two weeks and the loss arising from the lower hourly rate for three months until his promotion in his new employment.

CA-00045275-001

Complaint submitted pursuant to Section 8 of the Unfair Dismissals Act, 1977.

The respondent did not attend the hearing and was not represented at the hearing.  Having carefully considered the evidence presented by the complainant I decide that the complainant was unfairly dismissed. 

The complainant does not seek reinstatement or re-employment, having found alternative employment.  I find that compensation is therefore the appropriate form of redress.  The complainant suffered a financial loss arising from his unfair dismissal.  Therefor, I award the complainant compensation in the amount of €1,848 being the full loss of income for two weeks’ and the loss arising from the lower hourly rate for three months until his promotion in his new employment. (This award is made gross and is subject to any statutory deductions that may lawfully apply.)

Dismissal

Unfair dismissal

No attendance by the respondent