SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
PARKBORO DEVELOPMENTS LTD T/A PARK ENGINEERING
(REPRESENTED BY JAMES LAWLESS B.L.
INSTRUCTED BY COUGHLAN WHITE AND PARTNERS)
- AND -
(REPRESENTED BY PETER LEONARD B.L.
INSTRUCTED BY PC MOORE & CO)
1.Appeal Of Adjudication Officer Decision No(S) ADJ-00010407
Mr. Witkowski, ‘the Complainant’, worked for Parkboro Developments Ltd., ‘the Respondent’, for a period of 10 years up to 16 August 2017. He brought complaints to the Workplace Relations Commission, ‘WRC’, under the Redundancy Payments Act 1967 and the Unfair Dismissals Act 1977, stating that he had been dismissed on that date.
The Respondent failed to attend the WRC hearing. An Adjudication Officer, ‘AO’, decided that the claim under the Redundancy Payments Act was not well founded but that the dismissal was unfair, contrary to the Unfair Dismissals Act, ‘the Act’ and a sum of €5000 compensation was awarded.
The Respondent appealed the Decision under the Act to this Court and in so doing denies that any dismissal took place.
It is in dispute between the parties as to whether a separate claim of personal injury is related to the matter before this Court. That matter had concluded prior to the hearing of this Court.
At a case management conference prior to the hearing, the Complainant’s representative argued that the appeal by the Respondent allowed the Court to consider the claim made to the WRC under the Redundancy Payments Act. Legal submissions were invited from the parties and this matter was not pursued further.
The Complainant’s representative argued to the Court that, in determining compensation for an unfair dismissal, account should be taken of a complainant’s rights to minimum notice. At the request of the Court, a legal submission was provided by the Complainant’s representative on this matter. The Respondent did not provide a counter submission. The Court noted at the hearing of the appeal that minimum notice is provided for in a separate piece of legislation, the Minimum Notice and Terms of Employment Acts 1973-2005, that no reference to the need for consideration of minimum notice entitlements is set out in the Act that is the subject of this appeal and that the Court is obliged to assume that the Oireachtas intended, by virtue of separate legislation, that the matter of such notice be dealt with as an issue separate from any complaint of unfair dismissal. The Court noted further that no complaint had been made by the Complainant under the Minimum Notice legislation. This approach was accepted by the Complainant’s representative and was not pursued further.
As dismissal was in dispute, the Court noted that the initial burden of proof to establish that dismissal had occurred rested with the Complainant and as a result, unlike the generally adopted approach in cases under the Act, the Complainant’s representative was invited to put his case first.
Summary of Complainant arguments.
The Complainant was unfairly dismissed and the award of €5000 compensation does not adequately reflect his loss as he had 10 years continuous service with the Respondent. He was a General Operative whose duties included welding, steel painting, machine maintenance and the assembly of steel structures.
On 16 August 2017, the Complainant had reason to engage with Mr. Fergus Lawlor, the owner of the Respondent company. He drew attention to a shortage of certain material that he needed for the job in hand. To his shock, Mr. Lawlor shouted at him and told him to leave his work. He sought confirmation if this meant that he should go home and Mr. Lawlor confirmed that he should. He complied and left the premises.
Throughout his service, the Complainant had been a diligent and conscientious worker, often working through his lunch breaks. He believes that his employer’s change of attitude to him arose from a personal injuries action taken by him due to a workplace accident that resulted in the amputation of the top of one of his fingers. He believes that his employer only became aware of this claim in the summer of 2017, though it was submitted in 2015. Once the Respondent was aware, he started exerting pressure on the Complainant, making his work experience very uncomfortable.
As the Complainant represented himself at the WRC, he was not aware that he could have pursued a more substantial complaint of penalisation under the Safety Health and Welfare Act 2005.
It is an ironic twist that the fact that the AO found that the dismissal was summary in nature confined him to a lower level of compensation than the Complainant would have received if he had succeeded in his complaint under the Redundancy Payments Act. The AO found that, despite the Complainant having secured an alternative job within 14 weeks, he had not sufficiently attempted to mitigate his losses and he reduced his potential compensation by more than a third.
It is disputed that the Complainant resigned of his own volition and, bizarrely, even though the Respondent was not present at Adjudication, they argue that their version of the exchange of words was accepted by the Complainant at the WRC. They claim that the Respondent tried to re-engage the Complainant and that he had simply walked off the job. They make no reference to the personal injury. Crucially, despite claiming that the Complainant simply left the job, they claim that the Complainant ignored a legitimate instruction and that they were entitled to dismiss him.
The Court’s attention is drawn to case law in which the Court determined that the appropriate test is that of ‘reasonableness’ in determining if a dismissal is fair, (references provided).
This dismissal does not fall within any of the grounds in s.6(4) of the Act and the dismissal cannot be grounded on the employee’s conduct. It was a summary dismissal in the context of a minor workplace disagreement, there was an absence of fair procedures and there was no attempt to try to resolve difficulties. When the Complainant some days later tried to obtain a letter from the Respondent for social welfare purposes, the Respondent abruptly terminated the call.
Summary of Respondent submissions.
On 16 August 2017, Mr. Fergus Lawlor, owner of the Respondent, arrived back in his yard at about 16.10 hours when he was engaged by the Complainant, who advised of a problem. When Mr. Lawlor enquired regarding the problem, the Complainant pointed at flashing. When Mr. Lawlor enquired again, the Complainant walked to a folding machine. When a third enquiry was made, the Complainant said that there was not enough material. There was a discussion about the colour of material required and the length in metres needed, to which the Complainant replied to Mr. Lawlor that he could add it up himself. Mr. Lawlor asked the Complainant to do this and he replied ‘don’t shout at me’. The Complainant said ‘I go home’ followed by ‘will I go home?’ and Mr. Lawlor replied ‘do whatever you want Mario’.
The Complainant called his brother over and they both left the premises at about 16.30 hours. They approached a fellow worker, Mr. John Tynan,and asked for a lift home. He replied that he was staying until 17.30 hrs and asked why they were leaving? The Complainant replied ‘start early, go home early’. Another colleague, while on his way home after 17.30 came across the brothers still walking home and drove them to Portlaoise. During the journey, the Complainant said that Mr. Lawlor had shouted at him.
The following day, the Complainant contacted the office, spoke to Mr. Lawlor’s mother, Mrs. Una Lawlor, and told her that he would return if Mr. Lawlor apologised.
The day after that, the Complainant asked Mrs. Lawlor for his P45.
On 19 August, Mr. Lawlor contacted the Complainant’s brother and asked him to return to work. He also told him that the Complainant could return if he wished.
Another employee spoke to Mr. Lawlor the following day on behalf of the Complainant and he was told that there was a job for the Complainant and that he should return the following day.
On Monday 21 August neither brother reported for work. Mr. Paul O’ Connor, the Workshop Manager, made phone contact with the Complainant’s brother who told Mr. O’ Connor that he was taking alternative employment in the Czech Republic and that the Complainant would not be returning to work for the Respondent.
On Wednesday 23 August, Mr. Lawlor received a call from the Complainant who was seeking his help with a social welfare form by confirming that he had been dismissed. Mr. Lawlor refused this request as the Complainant had not been dismissed. The call became fractious and Mr. Lawlor terminated it.
In the exchange on 16 August, Mr. Lawlor made a reasonable request of the Complainant to calculate the amount of material required. His response was wholly unacceptable. He then walked off the job but he was not dismissed. Mr. Lawlor then made several attempts to get the Complainant to return to work, without success. The Complainant made no attempt to exhaust any internal processes, seeMcCormack v Dunnes Stores UD 1421/2008..
The Complainant cannot show that he qualifies under the Act as he cannot show that he was dismissed or that he sought, in any way, to appeal the decision. He left the employment and sought no reasons for the alleged dismissal. He refused then to engage with the Respondent in the subsequent days.
The Complainant did not utilise his right to request reasons for his dismissal within 14 days.
Without prejudice to the foregoing, the Complainant ignored a simple instruction and an employee can be disciplined or dismissed for refusing to comply with a reasonable and lawful order, seeBrewster v. Burke and the Minister for Labour (1985) 4JISLL 98followed inKellett v. Dublin Providers Ltd UD 728/1986.
It is incumbent on the Complainant to mitigate his losses, seeCoad v. Eurobase UD1138/2013.
The Complainant returned to work within weeks and his financial loss was limited. He failed to mitigate his loss in the period prior to securing that employment. Accordingly, if the issue of compensation is deemed to arise, the amount should be confined to 4 weeks’ losses.
Without prejudice to the foregoing, the Complainant contributed substantially to the events concerned and if he is deemed to have been dismissed, which is disputed, this must be taken into account, seeA Beauty Therapist v. Beauty Clinic ADJ-00011306, in which the AO noted that although the dismissal was unfair, the complainant had contributed 100% to the dismissal and no award was made.
The facts of this case do not meet the standards for an unfair dismissal. The claim that the Complainant left his employment because his employer ‘shouted at him’ would be more properly grounded in a claim of constructive dismissal, which was not pursued.
The Court’s attention is drawn to two cases that are very similar to the instant case, in which dismissals were found not to have occurred, these areCoalquay Leisure Limited t/a Gold Rush Casino v Lavinia Untea, UDD 1730andTom Maher v Eugene Walsh UD683/1983.
Mr. Mariusz Witkowski.
Mr. Witkowski is the Complainant.
The witness said that he was from Poland, he is married with four children and he has been in Ireland for 16 years. He worked for the Respondent for 10 years, he was a General Operative and worked 6 days most weeks.
The witness described how he had lost part of his finger in an industrial accident, while working for the Respondent.
The witness said that on 16 August 2017, Mr. Lawlor had arrived to the shed in late afternoon in bad humour. The witness told him that he did not have enough material. Time would be needed to count the metres required and the Complainant was busy. Mr. Lawlor got angry and told the Complainant ‘leave out’. The witness asked if he should go home and was told that he should even after he asked if Mr. Lawlor was sure. The witness and his brother left the premises.
The witness had use of the company van but he did not take it. He asked a colleague, Mr. John Tynan, for a lift but he said that he was staying until 5.30pm. Mr. Tynan asked why they were leaving and he said ‘arrive early, leave early’. His brother and himself then started to walk the 10 km to Portlaoise.
The following day the witness telephoned Mrs. Una Lawlor, Mr. Lawlor’s mother, and told her what had happened. She said that he should return to work. He said that he would do so if Mr. Lawlor apologised. Mr. Lawlor was the boss.
The witness said that he wanted to return but Mr. Lawlor never called him. He did call the brother of the witness and asked him to return but he never asked that the witness return.
The witness asked for his P45 as he had no choice because Mr. Lawlor never called him.
The witness asked around his compatriots and friends and checked the internet for possible employment. After 14 weeks he got a job in Dublin on better pay and is still in that job.
In cross examination, it was put to the witness that Mr. Lawlor would say that he had to ask 3 times what the problem was on 16 August before he got an answer. The witness said that he had to ask Mr. Lawlor not to shout at him and that Mr. Lawlor then said ‘leave’.
It was put to the witness that he had said earlier that Mr. Lawlor had told him ‘leave out’. He was asked if he was sure about what he was claiming had been said? The witness said that maybe he had explained this wrong when saying ‘leave out’.
The witness agreed that he had not disclosed any details of the row to Mr. Tynan. He was just seeking a lift. Normally he would use the van but he had been told to leave, so he could not.
The witness agreed that he worked hard. He agreed that he had some other rows with Mr. Lawlor but they were settled the next day. On one occasion, Mr. Lawlor had called him a ‘fxxxxxg moron’ and he did not return to work for a few days until Mr. Lawlor called him.
The witness confirmed that he did not return to work on the day following the incident on 16 August 2017. He called Mrs. Lawlor, the mother of Mr. Lawlor. She asked him to return. He said that he would do so if Mr. Lawlor apologised and asked him to come back. Mrs. Lawlor said nothing in response. Mr. Lawlor asked the brother of the witness to return. He did not ask the witness to return. He did not tell the witness’s brother that he wanted the witness to return. Mr. O’ Connor had also asked his brother to return. The witness sought his P45.
It was put to the witness that he had been given extensive training by the Respondent. He agreed. He said that he did not use this training in his current role.
The witness was asked about the conversation with Mr. Lawlor regarding the social welfare form, in which Mr. Lawlor confirmed to him that he had not been sacked. The witness replied by asking, if that was the case, why had Mr. Lawlor told him to leave and then not contact him? It was put to him that Mrs. Lawlor and Mr. O’ Connor had both asked that he return. The witness stated that Mr. Lawlor was the boss and had not called him.
In relation to mitigation of losses, the witness confirmed that he got the first job that he applied for, 14 weeks after he left the Respondent’s employment. He said that he asked around about opportunities in the meantime.
In response to questions from the Court, the witness said that he had not seen at the time the social welfare form completed by the Respondent that stated he left the employment voluntarily. He also outlined how he needed to travel to Dublin to work and that he did so by means of a car share arrangement.
When asked why he believed that being asked to leave meant that he was being dismissed rather than just being asked to leave the premises, the witness said that he had asked ‘are you sure?’ and it had been confirmed.
Mr. Fergus Lawlor.
Mr. Lawlor is the owner of the Respondent company.
The witness said that the Respondent company fabricated steel and erected buildings.
The witness said that his mother, Mrs. Una Lawlor, is a Director in the company, along with his father and himself, that she works in the shop, takes orders and that she would give these to the Complainant. The company employs 12 people.
The witness said that when the Complainant started to work for the company he was a General Operative but that the company gave him extensive training and he rose to be a highly skilled worker. The Complainant was an excellent worker and had never been replaced to the same standard.
The witness said that on 16 August 2017 he had returned from a trip to Wexford after 4 pm. The Complainant had called him over and said ‘problem’, without specifying what was the problem. The Complainant had accused the witness of shouting at him. The witness had said jokingly that he thought the Complainant was deaf as he had spoken to him three times before he got an answer. The Complainant had said ‘I go home’ and the witness said that he should do ‘whatever you want’. The witness said that he could not make the Complainant stay. He denied that he had told him to leave.
The witness said that the Complainant had walked out previously following a row with the father of the witness but that he returned the following day. There were very few problems with the Complainant as he was a very good worker.
The witness said that his mother had told him about her conversation with the Complainant but that he saw no reason why he would need to apologise to the Complainant. He subsequently met the brother of the Complainant and had asked about them both returning. The brother had said that he would think about it but that he doubted the Complainant would return. The witness had offered that the Complainant could work elsewhere in the company and not have to work with the witness. He had also told another employee who approached on behalf of the Complainant that he was welcome to return. Mr. O’ Connor had called the brother of the Complainant, at the request of the witness, to say that the Complainant could return.
The witness said that he had spoken to the brother rather than the Complainant as the latter was ‘a little hot-headed’ even though the Complainant had better English.
The witness had refused the request regarding the social welfare form as he had not fired the Complainant and he told him so.
The witness said that he wanted the Complainant to return.
In cross examination, the witness said that his mother, father and himself were Directors of the company despite the fact that his mother was not referenced as such on the headed notepaper. He said that his mother ran the shop, inter-acted with customers and gave dockets to the Complainant every day. Asked if she would direct the Complainant, the witness said that she would. When it was put to him that the Complainant would say that the witness was the boss, the witness said that he was the overall boss but that the Complainant would have taken as much instruction from his mother as he would have from the witness.
The witness confirmed that the Complainant often worked on Saturdays but rarely on Sundays. He worked about 45 hours per week. He was paid the same hourly rate for Saturdays but the company paid the tax on those earnings rather than the Complainant.
The Complainant had use of the van as he sometimes came to work at 7 am.
It was put to the witness that he paid the Complainant very little above the minimum wage and got great value from him, to which he replied that the Complainant was satisfied with his wage and that he was given 9 weeks’ holidays per year.
When asked if he shouted at the Complainant, the witness said that he had walked 10 to 12 metres away from him, so he needed to raise his voice. The Complainant had said ‘you shouted at me’ and said ‘I go home’, to which the witness had replied that he could do whatever he wanted. He had only figured out what the problem was after the Complainant had left.
It was put to the witness that it was not logical that a loyal, hardworking employee of 10 years’ standing, who worked 6 days per week, would storm off just because his employer asked ‘what is the problem?’ and it was put to him that he had told the Complainant to ‘leave’ or ‘leave, out’. The witness denied this.
The witness confirmed that the Complainant did not take the company van but could not say why he had not.
It was put to the witness that he could have rectified the situation. He said that he had tried but it was put to him that he had not, that he did not address the situation and that the Complainant had been left to walk the 10km to Portlaoise.
When then asked what duty he had to the Complainant, the witness said that he had let him ‘cool off’.
With regard to the conversation between the Complainant and his mother, the witness said that he had no reason to apologise. He wanted the Complainant to return and had spoken to his brother to tell him so. It was then put to him the he had focused on the brother rather than the Complainant, to which he replied that there had been no argument or issue with the brother.
The witness said that the Complainant had never told his mother that he was being forced to leave.
It was put to the witness that he had deliberately not engaged with the Complainant, to which he replied that he had done nothing wrong and that the Complainant had walked out ‘out of the blue’.
It was put to the witness that the Complainant needed social welfare to survive but that the witness had become ‘pure thick’ in his response, to which the witness replied to say that there was a job there for the Complainant.
In questions from the Court, the witness was asked why he responded to the Complainant by telling him that he could leave if he wished rather than telling him to go back to his work, to which the witness replied to say that the Complainant was being aggressive and there was no point in him being there.
The witness said that he did not understand from the subsequent conversation between the Complainant and his mother that the Complainant believed himself to have been fired.
The witness stated that the company now has a grievance procedure but did not at the time.
Mrs. Una Lawlor.
Mrs. Lawlor said that she is a Director of the company, she sells fixtures in the shop and takes orders, which she would give to the Complainant. She would have interacted with him 6 or 7 times a day. She was not present on 16 August 2017.
The witness took a call from the Complainant the following day. She asked him to come back. He had walked out before after some row with the witness’s husband and she assumed that if she asked him to return, he would do so. He said that he would return if her son apologised.
There was no cross examination.
In questions from the Court, the witness said that she did not know any details of what had occurred when she spoke to the Complainant, she knew only that he had walked out.
When asked under what authority she had asked the Complainant to return, the witness said that she knew from talking to other workers that the Complainant had not been told that he was dismissed.
The witness had not suggested to her son that he apologise as that was ‘up to him’.
Mr. John Tynan.
Mr. Tynan is a Fabricator/Welder with the Respondent.
The witness described how on the day in question, the Complainant had approached him to enquire about a lift home at about 4.30pm but that he had said that he was working until 5.30pm. The Complainant seemed a bit agitated.
It was not unusual for the Complainant to leave early as he sometimes came in early in the mornings.
The Complainant had not mentioned being sacked.
In cross examination, the witness said that he was 22 years with the Respondent. He said that he got on well with the Complainant.
In response to questions from the Court, the witness said that he sometimes gave lifts home to the Complainant.
The witness said that he had not had any conversation with Mr. Lawlor about the events on the day. Mr. Lawlor was the boss and they did not have the type of relationship that would mean such conversations were suitable.
Mr. Paul O’ Connor
Mr. O’ Connor is the Floor Manager for the Respondent. He had only been with the company a few months on the day when the incident in question had occurred. He was not over the relevant area at the time.
On the following Monday, he noticed that orders were backing up, customers were calling and there was no sign of the two brothers. Mr. Lawlor told him that he had been expecting them in work.
The witness was told by some of the other employees that the Complainant had walked out. He got the number of the Complainant’s brother and called him. He was told that the brother was leaving for the Czech Republic and that the Complainant would not be returning to the Respondent. He had asked about both.
In cross examination, the witness described his conversation with Mrs. Lawlor that morning. She had customers and the orders were piling up. He took the initiative to make a call. He had no awareness of what the row was about or any request for an apology.
The witness had not asked to speak to the Complainant but denied that he had focused only on his brother’s return.
In response to questions from the Court, the witness said that he had reported back to Mrs. Lawlor, who just told him to speak to her son.
On re-direct, the witness clarified that he was the sole manager in the company, apart from the Directors.
The relevant law.
Unfair Dismissals Act.
“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;
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.
(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) the conduct of the employee,
(c) the redundancy of the employee, and
(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.
Redress for unfair dismissal.
7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:
(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
(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 undersection 17of this Act) as is just and equitable having regard to all the circumstances, or
(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,
and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.
(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.
(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—
(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,
(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,
(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,
(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) ofsection 14of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,
(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and
(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.
(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—
(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or
(b) under the Income Tax Acts arising by reason of the dismissal,
shall be disregarded.
Notice to employees of procedure for, and grounds of, dismissal.
14.—(1) An employer shall, not later than 28 days after he enters into a contract of employment with an employee, give to the employee a notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee.
(2) Where there is an alteration in the procedure referred to in subsection (1) of this section, the employer concerned shall, within 28 days after the alteration takes effect, give to any employee concerned a notice in writing setting out the procedure as so altered.
(3) The reference in subsection (1) of this section to a procedure is a reference to a procedure that has been agreed upon by or on behalf of the employer concerned and by the employee concerned or a trade union or an excepted body within the meaning of theTrade Union Act, 1941, representing him or has been established by the custom and practice of the employment concerned, and the references in subsection (2) of this section to an alteration in the said procedure are references to an alteration that has been agreed upon by the employer concerned or a person representing him and by the employee concerned or a trade union, or an excepted body, within the meaning aforesaid, representing him.
(4) Where an employee is dismissed, the employer shall, if so requested, furnish to the employee within 14 days of the request, particulars in writing of the principal grounds for dismissal, but, in determining for the purposes of this Act whether, in accordance with the provisions of this Act, the dismissal was an unfair dismissal, there may be taken into account any other grounds which, subject to the provisions of this Act and having regard to all the circumstances, are substantial grounds justifying the dismissal.
In the ordinary course, as a dismissal is deemed to be unfair unless shown to be otherwise, the burden of proof rests with an employer. However, where dismissal is in dispute, the initial burden rests with a complainant to establish facts from which the Court can determine that a dismissal has occurred. The bulk of argumentation in the instant case centres on the question as to whether or not the Complainant was dismissed. If the Court determines that he was not dismissed, no other issues arise for consideration, so this is the first matter to which the Court must turn its attention.
There can be no absolute rules about is, or is not, a dismissal and to a very large extent each case in which this point is argued requires to be determined on its own facts. Therefore, it is, perhaps, not entirely surprising that cases with some similarities regarding the facts can result in different outcomes. In the case ofConnemara Marbles Ltd. v. Anne Marie Lally UDD2028, this Court noted in a case where dismissal was in dispute, following an intense verbal argument between the parties;
It goes without saying that, in such circumstances, it would have been better if both parties had paused and taken stock. The circumstances, in which neither was prepared to do so, led inevitably to a strong and angry exchange of words. It was in that state of anger that Ms. Keating dismissed the Complainant. She may or may not have said that the Complainant was ‘fired’. The dispute about that word is irrelevant. Ms. Keating accepted in evidence, to her credit, that a director telling an employee to leave and not to come back would be interpreted by most employees as having the meaning that they were being dismissed.
By contrast, the Respondent drew the Court’s attention to a case from 1983 ofTom Maher v. Eugene Walsh UD683/1983, in which an employer had told an employee to ‘fxxk back to where you were’ and the worker had replied ‘fair enough, I’ll do that’. The Employment Appeals Tribunal concluded that just because an employer speaks sharply to an employee is not sufficient reason for the employee to walk away and assume that he has been dismissed.
The contrast between these cases highlights the absolute necessity for the Court to examine the detailed facts of every such case in order to form an opinion as to whether or not there was a dismissal as no two cases in such situations are identical.
For the sake of completeness, the Court refers to the case ofCoalquay Leisure Ltd. t/a Gold Rush Casino v Lavinia Untea UDD1730, which was also brought to attention by the Respondent. This Court concluded in that case that the Complainant had resigned in temper when her employer refused to pay her for a shift that she had not worked. In light of the facts of that case, the Court is satisfied that the outcome has no direct relevance to the facts of the instant case. There was no suggestion in that case of the Complainant being asked to leave by the Respondent.
On the facts of the instant case, the Court’s task is made all the more difficult as plausible arguments have been made by both parties for the interpretation of events being advanced by them. Equally, from the evidence given it is certainly possible that both Mr. Lawlor and the Complainant genuinely believe that they are correct in their view of events, though they are mutually exclusive. In Mr. Lawlor’s case he believes that the Complainant walked away following a row and that there was a good chance that he would return. The Complainant believes that he was dismissed.
However, despite the plausibility of arguments and despite even the possibility of the genuine beliefs, the Court has to apply logic to the facts and has to arrive at a determination on the balance of probabilities, based on an assessment of those facts, however difficult it is to do so.
There is disagreement between the parties as to whether the Complainant was told ‘leave’ or even ‘leave out’ by Mr. Lawlor. Rather than try to form an opinion on this, the Court turned its attention firstly to the facts on which there is no disagreement.
It is accepted by Mr. Lawlor that he raised his voice. It is accepted by both parties that the Complainant told Mr. Lawlor not to shout at him and that he asked if he should go home; that Mr. Lawlor told him to do whatever he wanted; that the Complainant checked this response by asking if he was sure and that Mr. Lawlor re-affirmed his statement. What is not agreed between the parties is the meaning of this exchange.
The Court is obliged to note that, whatever the cause of the row or the nature of the words exchanged, an employer would normally be expected to respond to suggestions of an employee leaving the workplace after such an exchange by directing him/her back to their work rather than suggesting to them that the employer was, at best, indifferent as to whether they stayed or left.
To try to make some more sense of this exchange, it is necessary for the Court to look at some other factors surrounding it.
The Complainant’s submission suggests that this exchange was related to his claim for a personal injury that arose from an industrial accident while he worked for the Respondent. No evidence was put to the Court that could substantiate this allegation.
Subsequent to the argument, the Complainant and his brother set off on a 10km walk home, rather than take the company van. This supports the view that the Complainant believed that he had been dismissed. However, beliefs do not amount to proof, in and of themselves.
The Respondent argues that there were five attempts in subsequent days to ‘reach out’ to the Complainant.
It is argued that Mrs. Lawlor asked the Complainant to return the following day. However, the Court is obliged to note a few significant matters relating to this call. Crucially, it was the Complainant who made the call, not the Respondent. Indeed, at no stage either then or in subsequent days did the Respondent make any attempt to speak directly to the Complainant, something that would be expected if he wanted to offer re-assurance regarding the Complainant’s continued employment. He must have known that the Complainant had set off on a lengthy trek home following their argument rather than take the van and it seems inconceivable to the Court that he would not have been alerted to the seriousness of the Complainant’s view of the situation by this extraordinary turn of events.
Furthermore, in the course of the conversation with Mrs. Lawlor, it was the Complainant who indicated a wish to return. He did so on a conditional basis but, equally, if the Respondent really did want the Complainant to return, the fact that he had suggested a wish, even a conditional wish, to do so would lead to an inevitable conclusion that Mr. Lawlor had then an opportunity to pick up the telephone and speak to the Complainant, even if just to clarify the situation. The Court does not consider that the conditionality of the Complainant’s indication of a wish to return could not have been overcome by a discussion between two grown ups. That the Respondent did not grasp this potential olive branch does not support the view being advanced by him that he had not dismissed the Complainant.
Finally, with respect to that conversation, the Court has no doubt about Mrs. Lawlor’s sincerity in requesting the Complainant to return. However, it has been accepted by all witnesses that her son was ‘the boss’. It was both reasonable and necessary for the Complainant to seek that any indication regarding his possible return would come from Mr. Lawlor.
The second ‘reach out’ argued by the Respondent was the conversation between Mr. Lawlor and the Complainant’s brother. Mr. Lawlor says that he urged the brother to return and that the Complainant could also do so, if he wished. The Complainant says that his brother advised him only that Mr. Lawlor wanted his brother to return. While it is unfortunate that the brother is abroad and did not give evidence, even if Mr. Lawlor’s version of the conversation is accurate, it does not address the questions as to why he did not call the Complainant, clarify that he had not been dismissed and ask him directly to return? If there is doubt about a dismissal, there is some considerable onus on an employer to clarify the situation.
The next alleged ‘reach out’ concerns another employee, who did not give evidence and whose alleged actions amount only to inadmissible hearsay.
The fourth alleged ‘reach out’ was that of Mr. O’ Connor. There is some variation between his evidence and that of Mr. Lawlor as to who initiated this contact with the Complainant’s brother. Mr. Lawlor says that Mr. O’ Connor did so at his behest, while Mr. O’ Connor recalls having done so at his own initiative. Very little turns on this discrepancy and the Court has to allow for the lapse in time. However, even if Mr. Lawlor is correct in his recollection, this contact was with the Complainant’s brother via an intermediary rather than any contact directly by Mr. Lawlor to the Complainant to advise him that he had not been dismissed and that his job was still there. Mr. O’ Connor struck the Court as a truthful witness, so there is no reason to disbelieve him when he says that he told the Complainant’s brother that the Complainant could return if he so wished. This, quite simply, cannot be regarded as anything remotely as useful or significant as the simple task of the Respondent picking up the telephone and giving that re-assurance to the Complainant. Even if Mr. O’ Connor’s message was conveyed, as he claims to have put it, to the Complainant, the latter was entitled to regard it with some scepticism, given the failure of Mr. Lawlor to give the same simple message directly.
The last, and arguably the most significant, exchange, was the telephone conversation between Mr. Lawlor and the Complainant. Again, the initiative for the call came from the Complainant, not from Mr. Lawlor. The conversation took place against the backdrop of the failure of the Complainant to re-appear the previous Monday. While, on the face of it, the discussion seems clear cut in that both parties agree that Mr. Lawlor refused to agree to sign a social welfare form to confirm that the Complainant had been dismissed and that he told the Complainant his job was still available, the context was the necessity, as the Complainant saw it, to get the form signed in order to qualify for social welfare payments. The Complainant’s representative put it to Mr. Lawlor in cross examination that, in refusing to assist in the completion of the form, he was, in the graphic term used, just being ‘pure thick’ in light of what had gone on in previous days. In that light, considering all that had transpired from the moment of the argument itself through to this discussion, it is difficult to say with any certainty that this characterisation could be discounted.
Taking all of the above factors into account, the Court is satisfied that the Complainant believed that he had been dismissed. It may equally be the case that Mr. Lawlor wished him to return but he was too proud and/or stubborn to make contact with the Complainant to tell him so. None of the so called ‘reach outs’ came near the sort of assurances that a person believing themselves to have been dismissed would be entitled to expect from an employer who was seriously of the view that the relationship needed repair. The fact that the Respondent allowed the Complainant to leave his workplace to walk 10 km home rather than to direct him back to his work, would lead any reasonable person to the belief that they had been dismissed. It was up to the employer to take immediate and comprehensive steps to assure the Complainant otherwise. Unfortunately, rather than do so, the Respondent sought to evade the responsibility, while still, apparently, hoping for reasons related to the business, that the Complainant would re-appear in the workplace without the Respondent having to address the circumstances in which the Complainant had been dismissed.
In the only direct conversation between the Complainant and the owner of the Respondent, it is eminently possible to view the conversation not in the positive way in which the Respondent has sought to portray it but, rather, in the way in which the Complainant perceived it i.e. that the Respondent was just being awkward at the Complainant’s expense because of what had transpired.
The Respondent remains somewhat indignant about the consequences for the business due to the departure of such a valued employee but has never acknowledged that the Complainant asked if he should go home and was twice told to do whatever he liked and that it was a reasonable interpretation of this exchange for the Complainant to conclude that he was dismissed. The Respondent never subsequently initiated direct contact with him to re-assure him that he had not been dismissed until the Complainant sought the assistance of his then former employer with a social welfare application, at which point such assistance was refused.
The Court determines that the Complainant was dismissed on 16 August 2017 for the reasons set out above.
In the alternative, the Respondent argues that the Complainant refused a legitimate instruction and that this gave grounds for dismissal. While this matter was not argued in any depth, the Court is required to consider it. In doing so, the Court is required to apply the test of reasonableness. This was described best as follows;
“The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.”British Leyland UK ltd v Swift IRLR 91, at page 93.
This test has been applied consistently in Irish law, most notably inBank of Ireland v Reilly IEHC 241in which agreement was expressed with the approach taken by Judge Linnane of the Circuit Court inAllied Irish Banks v Purcell 23 ELR.
In the circumstances of the instant case, the Court asks itself simply was there anything in the behaviour of the Complainant that warranted a summary dismissal? It is not necessary to prolong any consideration of that question as the Court heard nothing on the facts of the case that would lead it to the view that the Complainant’s behaviour on the day would warrant dismissal by a reasonable employer. A sharp exchange of words in a workplace does not usually provide a basis for the sundering of an employment relationship. Obviously, in certain instances it may do so but a relatively trivial disagreement of the sort described does not come anywhere near justifying dismissal in the instant case, in the view of the Court. Indeed, the only aspect of this exchange that elevates it above what might be termed normal run of the mill workplace disagreements is the fact that the Respondent failed to direct the Complainant back to his work and, instead, led him to believe that he was being dismissed.
The Court having determined that a dismissal occurred notes that the burden of proof to establish the fairness of the dismissal rests with the Respondent. On the facts of the case, as outlined above, the Court is satisfied that this burden has not been met and that the dismissal is unfair.
Having so determined, the Court is obliged to consider the question of redress. It is quite evident that neither party favours re-instatement or re-engagement and the Court is satisfied that neither would be suitable in the instant case.
In determining compensation, the Court is confined to awards that reflect financial loss due to the dismissal. In so doing, the Court may take account of future loss, which can often be reflected in the loss of employment protections such as, for instance, less favourable future rights under Minimum Notice legislation with a new employer and to that extent, the argument made by the Complainant’s representative, while misconceived as set out above, has some validity, albeit not in the manner argued. Furthermore, the absence of procedures, as per s.14 of the Act, see above, is a factor to be taken into account.
On the other hand, the Court must take account of any contribution by the employee into the dismissal, actual financial loss and attempts to mitigate same.
The actual financial loss is calculated at €544.17 per week for the 14 weeks until the Complainant secured another job. No documentary evidence was provided to the Court of job applications in that period and some deduction from the amount of loss is necessary, as a consequence.
Taking all of the above factors into account, the Court determines that the Respondent should pay a sum of €5400, approximately 10 weeks’ pay, to the Complainant in compensation for the unfair dismissal.
The Decision of the Adjudication Officer is varied.
Enquiries concerning this Determination should be addressed to Sinead O'Connor, Court Secretary.