Courts

Car salesman on unauthorised sun holiday ran into company director in bar, WRC hears

‘He knew where I was ... because I had a tan’, Gary Maloney told Workplace Relations Commission in complaint under Unfair Dismissals Act

'We were just left in a lurch,' said sales director David Griffin, who said the salesman simply failed to turn up for work without any communication. Photograph: Colin Keegan/Collins

Fri Sep 8 2023 - 18:34

A used-car salesman went absent without leave for a sun holiday to Portugal only to run into a company director at a bar, the Workplace Relations Commission has been told.

In a complaint under the Unfair Dismissals Act 1977, Gary Maloney has accused Bill Griffin Motors Ltd of summarily sacking him within five minutes of his return to work on Monday, October 17th, 2022, when he claims he was told to surrender his laptop and leave the premises.

“I didn’t get a yes, I didn’t get a no,” he said of his request for annual leave for the week of October 10th that year the previous July – adding that the company’s sales director told him: “Ah, it should be okay.”

The sales director said he never approved the leave request as he wanted his full sales team at work while he and another director were to attend a family wedding.

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“We were just left in a lurch,” said sales director David Griffin, who said the salesman simply failed to turn up for work without any communication.

“We’d a lot of customers trying to ring Gary. We got a lot of complaints, and one large cancelled sale, a €60,000 [Volvo] XC90 that Gary had sold,” Mr Griffin said.

He said multiple attempts were made to contact Mr Maloney by phone and post that week to no avail – communications Mr Maloney denied receiving.

Mr Maloney had left behind 20 bookings for car sales and a “huge amount of leads” behind, Mr Griffin said.

Mr Maloney had travelled to Albufeira on Portugal’s Algarve coast – where the Griffin family wedding was set to take place later that week.

In evidence, Robert Griffin, another director who had travelled for the family wedding said Mr Maloney approached him at a bar and asked: “Uh, is Dave here?” – miming what the firm’s barrister later described as a “hiding” gesture.

“He [knew] he shouldn’t have been there, he should have been in work,” the witness said of the salesman’s disposition.

The tribunal heard that Mr Maloney then took a selfie with the director and sent it to a colleague, who then sent it around the sales office in Dublin, where it made its way to David Griffin, who arrived to Albufeira the following day.

“I saw him in a restaurant, but that could have been Thursday or Friday. I just stayed away; no point bringing a HR issue on a family holiday – a wedding,” David Griffin said.

When the complainant returned to the dealership the following Monday, the tribunal was told Mr Maloney was challenged by another employee of the firm, David Fleming.

Mr Fleming started by asking him: “Where the f**k were you last week?” Mr Maloney said in evidence.

“Number one, well, he knew where I was, I was away in the sun because I had a tan. Number two, I was aware that the person I’d sent the photo to had circulated it to all the other staff,” he said.

“I was told to go home. I was told to leave the laptop on the premises and that Dave was going to be home on the Tuesday and he would contact me,” Mr Maloney said.

The complainant added that Mr Fleming further stated: “If he [Dave] does come and offer your job back it’s either you or me.”

In his evidence, Mr Fleming said: “I asked: ‘Where were you.’ Obviously we knew because of the picture. He shrugged his shoulders. He said he had to go.”

“Was I a bit angry? Yes. Was I screaming and shouting? No,” the witness continued, adding that he then said the sales director would be back the following day to deal with it.

“[He] turned around and shrugged his shoulders, handed back the laptop and said: ‘Don’t worry about it, I’m done, make sure I’m paid.’ He handed the laptop back, with both hands: ‘I’m owed a few quid, make sure they pay’ – those sort of words,” Mr Fleming said.

Mr Maloney’s evidence was that his exact words to Mr Fleming were: “Am I done?”

“There was a question mark. It was a question,” he said.

Mr Fleming denied he had the authority to dismiss Mr Maloney as he was only a “senior sales executive” – though the complainant’s side argued the dealership’s website referred to him as a “senior sales manager”.

“We say he was dismissed rather than resigned,” Eoin O’Connor BL, appearing for the complainant instructed by Richard Bowman Solicitors, said in a legal submission.

As there had been neither an allegation put to his client, nor any investigation carried out, the manner of his client’s dismissal was unfair, Mr O’Connor argued.

Hugh O’Donnell BL, appearing for Bill Griffin Motors, said Mr Maloney had come in on the Monday “to hand in his resignation orally” and had not been dismissed, with his final pay only being sent at the end of the month.

The complainant gave oral evidence that he had started looking for work after it was confirmed to him by the Revenue Commissioners at the end of October that his employment with Bill Griffin Motors was at an end, adding that he had eventually taken a job with a former employer paying a salary of €30,000 in February 2023.

Mr O’Donnell argued his client was entitled to see documentary evidence of daily efforts to seek employment and cross-examine the complainant on them.

Adjudicating office Davnet O’Driscoll gave two weeks for further submissions on Mr Maloney’s efforts to mitigate his losses, with the complainant undertaking to submit correspondence in respect of job applications.

She gave leave to the respondent side to seek a further hearing to allow for the complainant to be cross-examined on his mitigation efforts, but added that the employer side could also respond in writing, and adjourned the matter.

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