A used-car salesman who ran into his bosses on a sun holiday when they said he “should have been in work” has won €12,500 for unfair dismissal after being fired on the spot when he got home.
The Workplace Relations Commission (WRC) made the award on foot of a complaint against Bill Griffin Motors Ltd by former employee Gary Maloney under the Unfair Dismissals Act 1977.
“I didn’t get a yes, I didn’t get a no,” Mr Maloney said of his July 2022 request for annual leave on the week of 10th October that same year – adding that the company’s sales director told him: “Ah, it should be okay.”
Mr Maloney told the WRC his partner had paid for a holiday on the dates and that it was non-refundable.
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The firm’s sales director, David Griffin, said he never approved the leave request as he wanted his full sales team at work that week because he and a fellow director, Robert Griffin, were due to attend a family wedding. He said that, without communicating, Mr Maloney didn’t turn up for work that week and left the company “in a lurch”.
“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.
Mr Maloney had travelled to the resort town of Albufeira on Portugal’s Algarve coast – where the Griffin family wedding was also set to take place later that week.
In evidence, Robert Griffin 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 in Albufeira the following day.
David Griffin said he had already been sent the selfie when he touched down in Portugal and found himself across a restaurant dining room from Mr Maloney later in the week.
“I just stayed away; no point bringing a HR issue on a family holiday – a wedding,” he 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*** 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”.
Mr Maloney denied receiving letters from the company in October 2022 putting it to him that he had been on an “unauthorised holiday, absent without leave” and “causing serious issue with customers and staff” which David Griffin said he had delivered by hand.
“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.
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.
In her decision on the case, adjudicating officer Davnet O’Driscoll accepted Mr Maloney’s evidence that he was “told to leave the premises and that the employer would be in contact” and noted that there was no evidence before her of any investigation or disciplinary process by the company.
“The respondent has failed to discharge the statutory burden. I find the dismissal of the complainant is unfair on both procedural and substantive grounds,” Ms O’Driscoll wrote.
Noting Mr Maloney’s financial losses of €19,026, she ordered the employer to pay him €12,500.
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