MN2273/2011, UD2229/2011, WT910/2011

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                   CASE NO.

Employee        -           claimant                                                          MN2273/2011

                                                             UD2229/2011

                                               WT910/2011

against

Employer         -           respondent

under

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

UNFAIR DISMISSALS ACTS, 1977 TO 2007

ORGANISATION OF WORKING TIME ACT, 1997

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms O. Madden B.L.

Members:     Ms A. Gaule

                   Mr C. Ryan

heard this claim at Dublin on 10th April 2013

                         and 18th October 2013

Representation:

Claimant(s):     Ms. Christina Ryan BL instructed by Ó Riada, Solicitors, Liffey House,

                         Primrose Hill, Celbridge, Co Kildare

Respondent(s) : Richard Joyce, McDonnell & Co. Solicitors, Park Side House, Main Street

                           Castleknock, Dublin 15 on 10 April; 2013 and on 18 October 2013                     

The determination of the Tribunal was as follows:-

Preliminary Issue

The representative for the respondent outlined to the Tribunal that the claimant walked out of the job. A conversation took place between the respondent and the claimant in which the respondent confirmed that the claimant’s job was still available.   The respondent maintained that E’s Take Away Limited was the employer and not EL in a personal capacity. The claimant did not receive payslips or a contract of employment. EL would have made the claimant aware that her sister was now in business and it is a different company and person.   The claimant was given a P45 on the 1^st May 2011. The respondent stated that the company is now the claimant’s employer.   E’s Take Away Limited was the name of the employer on the P45.

Counsel for the claimant outlined to the Tribunal that the claimant was dismissed from his employment on the 27^th May 2011.   The claimant was told to find a new job and he did not receive communication from the respondent.   The claimant did not resign. When the claimant commenced work in 2009 GP was the employer, the claimant was paid in cash and received payslips. GP left the business and EL came in and sought a bank loan.   At a certain point between March to May the claimant was paid and he did not receive payslips.      

The claimant’s employment continued and there was no reference to TUPE.     EL in her personal capacity was the employer and was in ownership.   There was a gap whereby no one employed the claimant.     The claimant asked GP if she was leaving the business and he was never told that she was no longer the employer.   The company was registered and nothing ever happened.    

POR, solicitor in evidence told the Tribunal that he dealt with the claimant. The T1A was signed by the claimant in November 2011.   He lodged the claim personally in the Employment Appeals Tribunal on the 25^th November 2011. The following week he was anxious to ensure that the TIA form was received.   It was his belief the claim was lodged on the 25th November 2011.   He could not be sure of the time and it could have been 5.45p.m.   He tried to give it to a member of staff but there was no one in the building at the time.  He received instructions from the claimant late.  

The Tribunal requested that the witness forward the Tribunal the e mail he sent to the Tribunal.   This was received by the Tribunal on the 16^th April 2013 and according to the correspondence the claim was e- mailed to the Tribunal on the 26thNovember 2011 at 20.28.

Respondent’s Case

The respondent EL told the Tribunal that she spoke to the claimant about taking over the business in 2009.   She asked her brother but he was in financial difficulty.     She worked with the claimant and he told her she should take over the business which she did on 7 March 2009. She told the claimant she was going to open it as a company and she kept the shop open.     In Spring 2011 the claimant had fallen out with another employee and there was no communication between the claimant and V.   She had four employees, the claimant V, H and S.   The claimant had a falling out with S and the matter was resolved.   On Tuesday the claimant was not in work and on Wednesday H came in and she could not talk to V.   On Wednesday 25 May 2011 she was in work and H and V would not talk to each other and this was very difficult for her. The next day the claimant came to work. She mentioned to the claimant that there was a problem with H and V.   She was in work on the 27th May 2011. She told the claimant that she wanted to chat about the previous days. The claimant shouted and told her that he did not like the way she ran the business.   The claimant took off his jacket and left.   The claimant told her that he wanted his P45 and he sent a text a couple of days later requesting his P45.   Her telephone fell into a chip pan and she could not provide evidence of the text. She went to her solicitor and the claimant was informed  that his job was still there if he wanted it.  When the claimant was employed initially he worked in the takeaway. She told him she could not give him payslips as it was taking time to form a company.     The company was established on the 16 May 2011. When she returned from Italy she received a certificate of incorporation in relation to the company and she did not write to the claimant to inform him. The claimant did not receive a contract of employment.  She posted the claimant his P45 to his apartment and she was not sure of the date on the P45. She could have waited a while to get the P45 from her accountant.

Her solicitor told the claimant that his job was still there. She previously had a good relationship with the claimant   She has another business now and someone else has the takeaway.

In cross examination she stated when the claimant reported for work on the 27 May 2011 she was in work and the premises opened at 12noon.   She finished at 4p.m. and went to the post office before the claimant came in. The claimant put on his uniform. She told him that she wanted a quick word about what happened the previous day. The claimant put his hand up and she thought that the claimant would apologise. She received a text from him that he was going to a solicitor. All she wanted to do was establish what had happened the previous day with the employee he fought with.

After this the claimant contacted her brother and complained about her.   She did not contact the claimant as he had walked out. She did not ask the claimant to confirm his resignation in writing. She went to her solicitor and her solicitor wrote a letter to the claimant to indicate that that he was not dismissed.   She did not try and resolve differences due to the manner in which the claimant behaved on the 27 May 2011.   She did not know what had happened on the three days that she was absent from work. She spoke to the claimant on the 27 May 2011 both in Italian and Irish. She had no reason to let the claimant go.

GP told the Tribunal that the claimant telephoned him the day after he left the respondent. The claimant told him that he could not work with his sister.   He offered the claimant a job in Mulhuddart and he said it was too far away and he declined the offer.   The claimant worked with him previously and the claimant has a temper. The claimant was never a manager in the chipper and he had another member of staff as manager.

V told the Tribunal that on 27 May 2011 the claimant left the respondent premises and she did not hear EL shout at him.   After he left the claimant came back shouting in front of customers in English and Italian and he said a bad word in Italian. The claimant was going to leave but he came back and it was serious.  The claimant told her that she was stupid.   She worked with the claimant for a few months. At the start she had a good working relationship with him and then it changed.   She did not know if the claimant was dismissed or if he walked out.    

Claimant’s Case

The claimant told the Tribunal that he was hired by GP and commenced employment in June 2009.   When he started he received no contract of employment, no terms and conditions, and no grievance or disciplinary.   He received a couple of payslips and a P60. He paid bills, did the roster and wages.   In 2011 he became aware that GP had financial difficulties. They spoke regarding taking over the business.   H and V were working there in 2011.

GP told him that he was going to take over the business and they did not have a discussion about this. In March 2011 EL took over the takeaway and there was no meeting or consultation to advise him of this.   She told the claimant that she obtained approval from the bank for a loan.

When EL was not on the premises he would have more responsibility and this was agreed verbally.   He asked V to clean and she raised an issue with EL. He was away on the 23 and 24 May 2011. National fish day was on the 25 May 2011.     He returned to work on the 26 May 2011. His shift started at 4pm and he commenced work.   Then he asked how the fish day went.   EL told him that she had issues with two employees V and H. He told her that he understood there could be issues if something occurred between the girls.   EL told him that there was no communication with the two girls and she told him that she did not have a good day. If the two girls were not talking the problem was with them and not EL. He finished off the shift and he had no further conversation with EL.  

He returned to work on Friday 27 May 2011.   He was doing the same job again in the potato room. EL was not on the premises and she then came in the back door. The claimant was working and she pointed her finger at him and told him to get another job.   He responded “are you serious”. She said yes you find yourself another job and he took off his apron.   She told him that she owed him three days’ pay.

He had a partner, child and a mortgage and they depended on his salary.   That year his partner was not working and he had to have his weekly wages.   He took it that he was dismissed. He did not resign from his job.   After 27 May 2011 EL never contacted him.      He was shocked, he did not think about the money, he was upset about what EL said to him and he walked out and that was it.   He never indicated to EL he was resigning. He did not have a heated discussion with the claimant the day before. EL was upset about what had happened and then EL was upset with him.

EL did not blame him for S and G not getting on.   He was not the type of person to shout.     He asked V to do cleaning, she refused and that surprised him.   V swore at him and he left it like that and he did not want to get upset. He had to work and he obtained alternative employment in July of this year.

In cross examination when put to him by the respondent that his job was there for him he replied “why didn’t you come back to me”.  He did not have a problem with V.

Determination

Having heard all the evidence in this case the Tribunal are of the unanimous view that the claimant resigned from his job.   In his direct evidence he stated that he was upset and walked out of his job.   The claim under the Unfair Dismissals Acts 1977 to 1977 fails. As he resigned from his position he is not entitled to notice under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 and the claim fails.   The claim under the Organisation

of Working Time Act 1997 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)