A garage owner who said his mechanic’s out-of-hours nixers were no problem until a disgruntled client arrived at the premises and produced a gun won’t have to pay out for lost earnings despite a ruling of unfair dismissal.
The Workplace Relations Commission (WRC) upheld Mark Hosey’s complaint under the Unfair Dismissals Act 1977 against Mark Johnson Motors but refused to order his former boss to pay any of the €8,650 losses sought by the worker.
Compensation was limited to eight weeks’ pay for other employment rights breaches.
The alleged death threat in August 2019 was cited in a dismissal letter two years later, when Mr Hosey was sacked following a dispute over payment for parts and materials ordered through the company for his freelance work, the tribunal heard.
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Mr Johnson said he “became suspicious” when he saw parts for a long-standing customer of his had been charged to the account, but that the customer told him he paid a €400 repair fee to Mr Hosey.
He described discovering 26 invoices “scrunched up” in a toolbox on his premises detailing parts paid for on his account with an automotive supplier between July 2018 and May 2021.
The employer said that when he challenged Mr Hosey about this in May 2021, the complainant denied charging the parts to the garage’s account.
He asked Mr Hosey to show he had paid for the items on the invoices, but that the mechanic replied that he “couldn’t prove he paid for every drop of oil” or “coolant, wipers and bulbs”, the garage owner said.
Then the complainant told the garage boss: “You’ve made up your mind,” handed over a set of car keys and walked away.
He said he “would never have charged €400 for this job”, putting the cost of labour at €100 and identifying a part listed in a May 2021 invoice for €25.50 plus VAT as the part installed.
Under cross-examination from the respondent’s barrister, Cathy McGrady BL, Mr Hosey admitted that he did not pay for parts as he had “a few issues that he is out of pocket for”.
Mr Johnson said he “couldn’t trust” the complainant, didn’t want him working in the garage, and asked him to hand over the keys of the car he was using.
“There were no issues with the complainant’s conduct until August 2019 when a customer of his nixer business came to the garage, took out a gun and threatened to kill him,” Ms McGrady said in a legal submission.
She said the garage had suffered a financial loss of €6,249 as a result of Mr Hosey’s conduct and that the complainant was “always aware of the allegations”.
“He did not explain why invoices for parts ordered for his jobs were charged to the business. He was given an opportunity to prove that he paid for the parts, but he did not do so,” Ms McGrady said.
Mr Hosey’s barrister, Fionnán Long BL, said the “nixer business” cited as cause in the dismissal letter had been agreed between the garage boss and his client – as was the practice of ordering parts – and that the gun incident had happened so long ago that it could not have been the operating cause”.
“Also, the complainant cannot be expected to be responsible for the conduct of a customer,” he added.
His client was “unaware” of the allegations against him and “was not given an opportunity to defend himself”, saying these “egregious procedural defects” rendered the dismissal unfair.
Counsel added that no statement of accounts had been shared by the garage owner and argued that the respondent side had not established that all the parts ordered were not paid for.
In her decision, adjudicating officer Catherine Byrne wrote that Mr Johnson could not use the gun incident to “bolster” the reasons for dismissing Mr Hosey after taking no action at the time.
However, she wrote that Mr Hosey did not dispute the conclusion reached by his employer on not paying for parts.
Ms Byrne ruled the dismissal unfair on procedural grounds, but wrote that the garage had “reasonable cause” to dismiss the complainant.
“Taking account of the extent to which the complainant’s loss of earnings was attributable to his own actions,” I make no award of compensation.
However, she ruled that the employer was in breach of the Terms of Employment (Information) Act 1994 in failing to provide a statement in writing of terms and conditions, and awarded the maximum of four weeks’ pay in compensation for a rights breach.
She added that as a result of her unfair dismissal ruling, it followed that the employer was in breach of the Minimum Notice and Terms of Employment Act 1973, and made a further order for weeks’ pay in lieu of notice.
The total orders against the garage amounted to €6,280.