A truck driver who said he went home from his place of work due to the intimidating conduct of a co-worker that included name-calling and threats to kill has been unsuccessful in a complaint of constructive dismissal against his former employer.
James Muldoon told the Workplace Relations Commission that the co-worker called him names and threatened to kill him, so he told his employer, Michael Flynn, managing director of Caromik Limited, that he was going home until the matter was resolved.
However, Mr Flynn gave evidence that Mr Muldoon said: "I'm out of here. I’m done", and he did not tell his employer that he would be back to work.
Mr Muldoon was seeking adjudication by the Workplace Relations Commission under the Unfair Dismissals Act, 1977, and the Minimum Notice & Terms of Employment Act, 1973.
Caromik Limited is a plant and machinery hire business.
Mr Muldoon started working with them as a truck driver in November 2015, and his employment ended on December 2, 2021, when he left his place of employment due to his concerns about the conduct of another employee.
Mr Muldoon said that a new driver, AB, joined the company in March 2021. He said AB treated him with aggression and disrespect, with the first instance of this behaviour occurring in September 2021, in the presence of Mr Flynn.
Mr Muldoon said that AB shouted at him, threatened to kill him, called him names, vandalised property and talked about him disparagingly to other employees.
He said that he made a verbal complaint to Mr Flynn at the time, but the intimidating conduct of AB continued and escalated in November 2021, when he was shouted at and abused in the yard in the presence of other workers.
Mr Muldoon said that he told Mr Flynn that he felt threatened and that the way he was treated by AB would result in him leaving his job, but he said that Mr Flynn's response was that he should stay out of AB's way.
He said nothing was done about AB's conduct and the final incident occurred on December 2, 2021, when he alleged that AB drove at him at speed as he was driving his car into the yard.
He said that he phoned Mr Flynn and told him that he could not work while being threatened, and he said that he told Mr Flynn that he would be going home after he completed the task he was working on.
The following day, Mr Muldoon noticed that there was extra money in his bank account with his weekly wages.
When he phoned to enquire about this, he said that he was told that money was his outstanding holiday pay which was transferred to his bank account because he left.
He then received what he described as "an irate call" from Mr Flynn asking him why he phoned the office.
When the complainant said that he wanted to know why he got his holiday money, he said that Mr Flynn replied: "You left, what more do you want?"
Mr Muldoon said that they discussed how he was being treated by AB, but he said that Mr Flynn suggested that he was somehow at fault for how he was being treated and nothing was resolved.
"I didn't walk out, I didn’t quit, I didn’t give notice of any intention to leave. To my mind, I would still be working if the issues with (AB) had been resolved or if I had been given fair treatment," said Mr Muldoon.
He said that he did not leave his job of his own choice, but that he was "pushed out".
Giving evidence at the hearing, Mr Muldoon said: "I didn’t jack in the job, I went home."
He said he did not make a formal complaint about AB, as he could not make a complaint about an employee who is not "on the books". He said that AB "wasn’t legally there."
His wife, Patricia Muldoon, told the hearing that she and Caroline Flynn, wife of Michael Flynn, were friends and Mrs Muldoon said that Mrs Flynn told her that her husband was very stressed about what was going on with the lads in the yard, describing it as "a playground".
Mr Flynn gave evidence that, in his mind, the behaviour of AB was not bullying, but that it was "argy bargy" among the lads in the yard. He said that no one ever made a complaint about bullying.
Mr Flynn said that on December 2, 2021, he phoned the complainant, who said, "I'm out of here. I'm done." He said that Mr Muldoon did not say he would be back.
After hearing the case, Workplace Relations Commission Adjudication Officer Catherine Byrne concluded that Mr Muldoon "resigned in temper".
"If the complainant had intended to return to work on condition that AB's conduct was addressed, he could have written to his employer to let him know that this was his position," she said.
The WRC concluded that the complainant was not dismissed but that he resigned from his job. The adjudicator decided that the complaint of constructive dismissal was not well founded.
