A warehouseman who claimed his boss fired him by grabbing him by the neck and shoving him out the door with the words “good luck” has won €15,000 for constructive dismissal.
Denying assault, verbal abuse and unfair dismissal before the Workplace Relations Commission (WRC) earlier this year, the man’s former employer took the position that he had not even raised his voice and that the worker’s claims were not substantiated by CCTV.
However, the tribunal concluded that there had been “at a minimum ... a heated argument” on the day and that the employer’s failure to take “positive action” to resolve the matter meant the worker was “justified” in claiming constructive dismissal.
Cornelis Van Tonder, a general operative employed to load and unload deliveries at the Brennan Furniture and Carpets Ltd from 2017 to 2020, told the tribunal that there had been an increase in business during the Covid-19 pandemic that meant he and another colleague were “required to do the work of four men”.
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When he complained, the company’s owner, Carl Brennan, drafted in two schoolboys to “help out”, he told the WRC.
The “increased pressure” led to errors, Mr Van Tonder told the tribunal, and over the weekend of Saturday July 4th, 2020, he and his colleague were unable to load all of the deliveries due to go out the following Monday, July 6th, 2020.
Mr Van Tonder’s evidence was that Mr Brennan confronted him that day about the failure to complete the order. The worker said he complained to his boss about the working conditions and “us[ing] children in the warehouse to do the work of adults”.
His case was that his boss then “grabbed him by the neck and shoved him out the door of the premises saying ‘good luck’,” the WRC recorded.
The position of the company was that Mr Brennan discovered by chance over the preceding weekend that the lorry had not been fully loaded and “asked the complainant to go outside and discuss it out of earshot” the following Monday.
“Carl Brennan at no time grabbed the complainant by the neck, pushed him against a wall or otherwise verbally or physically abused him,” the company’s solicitors submitted. The company’s case was that Mr Van Tonder “became aggressive and shouted” to the point that Mr Brennan had to ask him to go outside to be out of earshot of other staff.
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Mr Brennan “at no time” raised his voice, the solicitors told the tribunal. Exterior CCTV showed only a “brief verbal interaction ... with no touching or assault”, it was further submitted.
Mr Brennan stated in evidence that he thought Mr Van Tonder just needed time to “cool off” and would be back, as the worker had left and come back on a previous occasion.
The company denied dismissal.
McEntee & O’Doherty Solicitors, acting for Mr Van Tonder, submitted that there was no further contact from Mr Brennan, but that Mr Brennan’s sister had contacted their client in August 2020 looking for a resignation letter.
The company’s solicitors, Wilkie & Flanagan, submitted that the allegation of assault was “denied and unsupported by the CCTV footage” as well as the evidence of the owner and other staff present on the day.
Adjudicator Shay Henry noted there was a “difference in the evidence” about a physical interaction between the worker and his former employer – but that a “heated argument” was acknowledged as a “minimum”.
Although the company had “correctly” argued that there was an onus on a worker to exhaust internal grievance procedures to make out a case for constructive dismissal, there had been no written grievance process in place at the time, Mr Henry noted.
That put the onus back on the employer to take “positive action to remedy the situation” after Mr Van Tonder sent messages stating that he regarded the employment relationship to have ended, Mr Henry wrote.
“[The employer] should have contacted the complainant at that stage and said that he could return to work,” Mr Henry added. He found Mr Van Tonder was “justified in terminating the employment relationship based on constructive dismissal”.
Mr Henry awarded Mr Van Tonder €15,000 on foot of a €20,000 loss of earnings, applying a 25 per cent reduction – taking the view the complainant had contributed to his dismissal.
The tribunal also awarded €300 for an admitted breach of the Terms of Employment (Information) Act 1994 for the failure to provide the worker with a written statement of his employment terms.
According to the decision document published by the WRC, Mr Van Tonder’s statutory complaints under the Unfair Dismissals Act and the Terms of Employment (Information) Act were heard by the tribunal in April this year, more than three years after they were first lodged in January 2021.
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