A welder who repeatedly threatened to quit as a “tactic” to get a bump in pay had “some level of responsibility” when he was unfairly sacked, the Workplace Relations Commission has found.
Anatoliy Ludchenko was awarded €19,500 in compensation by the tribunal after it upheld his complaint under the Unfair Dismissals Act 1977 against Harp Renewables Ltd, of Johnstown, Co Meath, in a decision published on Monday. .
The company had denied dismissal, maintaining that Mr Ludchenko had resigned.
Giving evidence through an interpreter, Mr Ludchenko said he had become “frustrated” at work because preparatory work that he said was supposed to be carried out by a colleague was left undone on November 23rd, 2021.
He said got no response from his supervisor, Kevin Quirke, when he went to complain.
“The work I had to do no one else could do, I showed up. I completed what I could and I left. I was not in a state where I could talk to anyone my pain was so bad,” he said.
He said he was ill for two days and unable to attend work, but tried to go back on 26th November.
On that date, he said Mr Quirke told him: “You do not work here any more. You have no right to be here. You did resign.”
“I believe that I was fired and that I was fired unlawfully by Mr Kevin. [I am] without a deep understanding [of] what has actually happened,” he added.
“Did you or did you not tell Kevin Quinlan that you were resigning,” the company’s managing director Joe Cowley asked the complainant in cross-examination.
“I did not resign nor had any intention to. If I said a word that might have been interpreted to some understanding ... I didn’t intend to leave, nor would I be working with a lawyer or applying for social welfare,” he said.
“Did you on any other occasion reiterate to me that you would resign,” Mr Cowley said.
“Yes I can confirm that the cases were present and did happen, but as we can both confirm it was nothing more than a joke,” Mr Ludchenko replied.
Mr Quinlan said in his evidence he was “absolutely sure” Mr Ludchenko had said he was resigning in a row over work.
He said he asked the complainant: “Are you finished in Harp?” and the response was: “Yes I am finished in Harp.”
“You said he was really annoyed – was he angry?” asked adjudicating officer Roger McGrath.
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“‘Angry’ would be a bit far; annoyed, frustrated is what I’d describe,” Mr Quinlan said.
“I think he’d expressed similar ideas before?” the adjudicator asked.
“Not to me, no,” the witness said.
“Do you know if he’s said it to anyone else?”
“My understanding is he has,” Mr Quinlan said.
“Did you ask him to put it in writing?” the adjudicator asked.
“Unfortunately, no,” Mr Quinlan said.
A former colleague of Mr Ludchenko’s, Seán Lynch, said in his evidence that the complainant told him he was resigning at a Christmas event the year before the dispute.
“He told me he was handing in his notice,” Mr Lynch said.
“Anatoliy constantly threatened to leave the company and constantly pushed for more money. We made the assumption he had left at this stage. We tried to contact him to see was he coming back – he never answered the calls,” Mr Cowley said.
“My family at the time was in Ukraine and they are there now,” Mr Ludchenko. “It has hit our whole family and right now they can’t rely on me as much. There is war in Ukraine and it’s more challenging,” he said.
His solicitor said it was inconsistent that a man in that situation would resign without another position to go to, adding that his client’s new work paid less.
Mr McGrath wrote in his decision that it was clear that Mr Ludchenko said something that was “interpreted as a resignation” by the company.
He said it was the employer’s duty to confirm a resignation in a “clear and unambiguous way”, such as by asking the worker to confirm it in writing, and that Harp Renewables had “failed” in this regard.
“Therefore, I find this was not a resignation, but a dismissal, and in the circumstances, an unfair dismissal,” he wrote.
“Notwithstanding the above, it is not reasonable to use the threat of resignation as a tool to get pay increases. I accept that the threat of resignation had been used by the complainant as a tactic to achieve this aim in the past. In this instance the threat backfired. Some level of responsibility for the outcome of the interaction lies with the complainant,” Mr McGrath wrote.
He ordered the company to pay Mr Ludchenko five months’ pay, €19,500, in compensation.
