The Workplace Relations Commission has found that a welder who repeatedly threatened to quit as a “tactic” to get a pay jump had “some degree of responsibility” when he was unfairly sacked .
Natoli Ludchenko was awarded €19,500 in compensation by the tribunal as his complaint under the Unfair Dismissal Act 1977 against Harp Renewables Ltd of Johnstown was upheld, in a decision published this morning.
The company had denied the dismissals, saying Mr Ludchenko had resigned.
Giving evidence through an interpreter, Mr Ludchenko said he had been “disappointed” at work because preparatory work which he said should have been done by a colleague had been left undone on 23 November 2021.
He said when he went to complain there was no response from his supervisor, Kevin Quirke.
“The work I had to do that no one else could do, I showed up. I did what I could and I left. I wasn’t in a position where I could talk to anyone, my pain was so bad ,” They said.
He said he had been ill for two days and was unable to go to work, but tried to return on 26 November.
On that date, he said Mr Quirke told him: “You don’t work here any more. You have no right to be here. You resign.
“I believe I was fired and I was fired illegally by Mr. Kevin. (I am) without a deep understanding (of) what really happened,” he said.
The company’s managing director Joe Cowley asked the complainant in cross-examination, “whether or not you told Kevin Quinlan that you are resigning.”
“I have not resigned nor had any such intention. If I had said a word that would have meant something… I did not intend to quit, nor would I be working with a lawyer or applying for social welfare.’
“Have you repeated to me on any other occasion that you will resign,” Mr Cowley said.
Ludchenko replied, “Yes, I can confirm that affairs existed and did happen, but as we can both confirm it was nothing more than a joke.”
Mr Quinlan said in his evidence that he was “absolutely convinced” that Mr Ludchenko had said he was resigning over a work dispute.
He said he asked the complainant: “Have you played the veena?” And the response was: “Yeah I ended up in the harp.”
“You said he was really angry – was he angry?” asked assistant officer Roger McGrath.
“Angry” would be a little off; Angry, disappointed is what I describe,” Mr Quinlan said.
“I take it he expressed similar views before?” the judge asked.
“Not for me, no,” said the witness.
“Do you know if he said it to anyone else?”
“My understanding is that he has,” said Mr. Quinlan.
“Did you tell him to put it in writing?” the judge asked.
“Unfortunately, no,” said Mr. Quinlan.
In his evidence, Sean Lynch, a former aide to Mr Ludchenko, said the complainant told him he was resigning at a Christmas celebration a year before the controversy.
“He told me he was handing in his notice,” Mr Lynch said.
“Anatoly constantly threatened to leave the company and constantly pressed for more money. We made the assumption that he had left at this stage. We tried to contact him to see if he was coming back – he Never answered the call,” Mr Cowley said.
“My family was in Ukraine at the time and they are there now,” Mr. Ludchenko. “It’s affected our whole family and they can’t trust me that much right now. There’s a war going on in Ukraine and it’s more challenging.
His lawyer said it was inconsistent that a person in that position would resign without moving to another position, adding that his client’s new job paid less.
Mr. McGrath wrote in his decision that it was clear that Mr. Ludchenko said something that was “interpreted as resignation” by the company.
He said the employer had a duty to confirm the resignation in a “clear and unambiguous manner”, such as asking the worker to confirm it in writing, and that Harp Renewables had “failed” in this regard.
“Therefore, I find that this was not a resignation, but a dismissal, and in the circumstances, an unfair dismissal,” he wrote.
“Notwithstanding the above, it is not proper to use threat of resignation as a tool to get increment. I accept that threat of resignation has been used by the complainant as a tactic to achieve this objective in the past. was used. In this case the threat backfired. Some degree of responsibility for the outcome of the conversation rests with the complainant,” Mr. McGrath wrote.
He ordered the company to pay Mr. Ludchenko five months’ salary, €19,500, as compensation.