Case Number: ADJ-00006406. Workplace Relations Commission

• Docket Number: ADJ-00006406
• Date: 01 January 2018
• Court: Workplace Relations Commission
• Parties: A General Operative v Material Recovery Company

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00006406

Complaint:

ActDispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00008836-001 16/12/2016 Date of Adjudication Hearing: 12/09/2017 Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following 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.

Background:

The Complainant worked as a General Operative in a Segregated waste company since 2003. He had begun to experience some difficulties at work. In seeking to secure a confirmation of Saturday working, he had cause to contact the Managing Director of the company from which a disagreement ensued which culminated in his termination of employment. He submitted that the Dismissal had been Unfair and sought Re-instatement. The Respondent disputed the Dismissal and described the circumstances as voluntary termination of employment. The Complainant had not secured continuous work since dismissal.

Summary of Respondent’s Case:

The Respondent disputed that a dismissal had occurred as alleged. The Complainant commenced as a general operative worker with the Respondent on June 1, 2003. The Respondent outlined that the Complainant had been treated very well during his employment. The Claimant had issued Personal Injuries procedures following an On-site against the company in 2015. On 16 January ,2017, The Managing Director of the Company, Mr MD responded to the claim of unfair dismissal: 1 Dismissal was denied. The Complainant was treated better than any other employee on site. 2. Following a 5-day absence due in stress, the complainant was advised of the Company support services of Medical Doctor and Occupational Health services. He did not avail of these. 3.The Company had no issue with the parallel proceedings on Personal Injuries. That was a matter for the Insurer. 4. Mediation had been attempted in relation to the work environment on May 6, 2016 but the Complainant had not co-operated. Three follow up dates of 27 may, 8 June and 10 June 2016 were cancelled. 5 The Complainant called Mr MD on 24 June 2016 and signalled his intention to return to work the next day but that his Supervisor had stated that as the roster was complete, he wasn’t needed. The Complainant then screamed down the phone that he was “going to get “another employee, Mr A. When Mr MD tried to reason with him, the complainant told him that he wasn’t coming back to the job, that he was sick of it. On seeking clarification of the complainant’s intentions on whether he was resigning? he was informed in stark language that he was. Mr MD accepted his resignation and hung up. 6 Mr MD called the local Garda station and reported the incident of intention to do harm. 7. Mr MD stated that he had known the complainant all his life and had always looked out for him. It was never his intention that he would leave his position or be let go from his employment. Mediation was introduced to seek an amicable arrangement. Mr MD gave evidence on the day of hearing. He outlined that he operated a segregated waste company and employed 55 people, many of whom had been with him from the beginning. The Complainant had worked over various sites and had some difficulty with others but not with him. He had made a concerted effort to organise mediation with an external Mediator to “get things back to normal”. He felt things were dragging on and the complainant turned down three appointments. A room was booked at the local GAA Hall and the complainant did not turn up. He stated that he was aware of the pre-existing Personal Injuries claim from December 2015, but this had not caused an operational upset. He outlined that he was unaware of an Interpersonal difficulty between the complainant and Mr A, in advance of June 24. He understood that they had previously been friendly and travelled in the same car. He was subsequently aware that a meeting had been co-ordinated on site of all the lads in a bid to investigate difficulties. He recalled receiving phone call from the complainant around 4pm on 24 June, 2016.He informed him that he was ready to return to work. The Complainant had been required for safety training in the Friday. The Complainant started to give out about Mr A and began to threaten him over the phone. He told Mr MD that he could “stick his job……” Mr MD told the hearing that Mr A was 6ft in height and well built. He had provided cover while the complainant was on stress leave and remained in the respondent employment. During cross examination, Mr MD confirmed that the phone call was of 2.5-3 minutes in duration. He confirmed that issues had arisen with the complainant’s contract and the start date had not been sorted out. He had signed the contract on behalf of the company. He confirmed that he had sent the letter of acceptance of resignation on Friday, 24 June, 2016.In response to Counsels questions on whether this was a reasonable position to adopt on foot of a 13-year employment history? he responded by stating that he had not asked the complainant to resign that is why he did not call him back. He denied that he had been unreasonable as the complainant had roared down the phone. He was disappointed that mediation had not worked but had genuinely tried to resolve matters. Mr MD confirmed that the complainant’s resignation was the first resignation the company had received. In response to Counsels question on whether there was room back in the company for the Complainant, he confirmed that there was room. Evidence of Mr B (Foreman) Mr B confirmed that he had been the Complainants foreman. He had not received any complaints from him regarding Mr A, who was a casual worker working one day a week. He confirmed that he had been a witness to the call of June 24, 2016 and heard the complainant state that he would” sort Mr A” as he didn’t know who he was messing with. He confirmed that the complainant had stated “stick your job…….”. During cross examination, Mr B confirmed that he was aware that the complainant did not want to talk to Mr A in the work setting, but they didn’t work together. He did not have cause to raise this with Mr MD. He believed that it was up to themselves to sort it out. He didn’t want to take sides. He was aware that the complainant provoked Mr A by coming up to him singing. Mr A had not replaced the complainant. There were two temporary workers there. The Sick leave protocol dictated that employees call him when coming back to work. He did not know that the complainant was going to call Mr MD in relation to the roster. He didn’t have any involvement in the resignation. The phone call was of 3-4 minutes’ duration. The Respondents Solicitor raised issues on the shortfall in the Complainants efforts on establishing loss and mitigation. The Respondent accepted that the complainant had submitted his intention to leave his employment and subsequently withdrew it unilaterally. The Respondent accepted that a dismissal had occurred in the case.

Summary of Complainant’s Case:

Counsel for the complainant outlined that this was his first and only job in the workforce. There were some background issues in the complainant’s employment and he had outlined these difficulties and had sought to resolve them. He had a period of stress leave in April 2016. The Complainant gave evidence that he was 31 years old and worked for the Respondent as a General Operative. He had sustained a back Injury at work and had difficulties getting paid in November 2015.He had some instances of lateness due to the bad weather and received a written warning in a letter dated 28 March, 2016.He understood that he had accepted this. He had begun to experience difficulties with Mr A who was picking on him, insulting him and he informed Mr MD that he couldn’t work with him. There had been some changes at the company and he was hopeful of getting an increase in hours up to 48 but he was lucky to get 40 hrs. He was sick on stress leave during April 2016. He attended mediation on May 6, 2016, but did not discuss Mr A. He felt the mediation wasn’t going anywhere. He also felt that his Solicitors letter on the personal injury claim in May 2016 had resulted in a “coolness “towards him and things weren’t the same. He rang Mr B on Friday, 24 June to organise his return to work the next day. He was informed that there was no work for him as they weren’t aware when he was returning to work. He then rang Mr MD and asked him to explain. He mentioned that he was stressed out regarding the work environment and he couldn’t work with Mr A. The Complainant denied that he had given Mr MD to understand that he wasn’t coming back to work. He explained that he was frustrated with Mr A but had not indicated that he intended on going to his home to harm him. Mr MD stated that he was accepting his resignation. The call occurred on Bluetooth in his car and he described it as a heated conversation overhear by his partner. He confirmed that he had” lost the rag” on the call. He attended his GP the next day as he was “stressed out”. He did not inform Mr MD that he...