EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE -claimant UD1028/2012
Against
EMPLOYER -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary B. L.
Members: Mr F. Moloney
Mr. J. Dorney
heard this claim at Dublin on 27th November 2013
Representation:
_______________
Claimant: Mr. David Boughton B.L. instructed by,
Keans, Solicitors, 2 Upper Pembroke Street, Dublin 2
Respondent: Byrne Wallace, Solicitors, 2 Grand Canal Square, Dublin 2
Dismissal is in dispute in this case.
Claimant’s Case
The claimant worked as a head chef for the respondent, a bar/restaurant. He has extensive experience in this position. On commencement of employment the claimant signed a contract but never received a copy of same. The claimant never received any grievance or disciplinary procedures. The claimant’s employment was reasonably smooth until the incident that led to his dismissal in March 2012. (He had been suspended for ringing in sick the previous New Year’s Eve.)
The claimant was working Saturday the 10th of March 2012. That evening he attended a family party and consumed some alcohol. At the end of the evening the claimant was attacked by a person who left him with a broken nose and a large open cut above his eye. The claimant was concerned about attending work the following morning so did not go to hospital. The claimant thought that the respondent would not believe what had happened to him unless he attended work with the visible injuries.
The claimant was due to start work at 9.00am. He attempted to get cover for an hour as he wouldn’t make it into work until 10.00am. When the claimant arrived for work at 10.00am he reported his injuries to the assistant manager on duty, (CD). He told CD what had happened and that he was unfit for work. CD told the claimant that he had to work as there was no one to cover for him. The claimant informed him that he could not wear his chef’s hat due to the open cut on his forehead and proceeded to work.
At 11.45am CD informed the claimant that he had spoken to the financial controller (SB) regarding the situation. CD instructed the claimant to pack up and go home, that SB said the claimant was to be sacked on the spot by CD but as CD did not think this was fair treatment he instructed the claimant to contact SB himself the following day. The claimant took this as his dismissal. A replacement chef had come into work before the claimant was sent home.
The respondent general manager (AC) rang the claimant later that day to find out what had happened. She confirmed that the claimant was being let go for a number of incidents not just the incident of the night before and instructed him to speak to SB the following day.
The claimant attended his GP on Monday the 12th of March. Later that day, at approximately 4.00pm the claimant met with SB. He explained his injuries to SB who informed him that he had to let him go. The claimant pleaded for his job and requested that he was transferred to a different premises owned by the respondent as an alternative. SB mentioned performance issues for the first time. The claimant had never received any verbal or written warnings for his performance.
SB then presented the claimant with a document to sign. SB told the claimant that he would not receive his P45, holiday pay or a reference if he did not sign the document. It transpired that this document was a resignation letter handwritten by SB. SB instructed the claimant that they could do it the hard way or the easy way; the respondent has huge influence in the industry so the claimant signed the letter to secure a reference for another job.
The claimant gave evidence of his loss and his attempts to mitigate his loss.
The claimant disputes informing CD that his phone was off on Sunday morning as he was in hospital. The claimant disputes resigning or saying that ‘his head was a mess and he should walk away and move on.’ The claimant did not request the resignation letter. As the claimant did not receive the disciplinary procedures he was not aware that there was an appeal process.
Respondent’s Case
The assistant manager at the time (CD) gave evidence. On the Sunday morning the 11th of March the claimant did not arrive for work and could not be contacted by phone. This was unusual for the claimant. At this stage CD was only concerned with finding a replacement for the claimant.
When the claimant arrived for work CD could see immediately that he had an open bleeding wound on his forehead. CD told the claimant that he needed to get the wound seen to and recommended a local facility. CD does not recall instructing the claimant that he had to work; due to his wound he would not be allowed to work in the kitchen.
CD walked away from the claimant to ring SB for advice, “to ensure sending him (the claimant) home was the right thing to do.” CD told SB about the situation and that the claimant was unfit for work. SB did not instruct CD to sack the claimant and CD disputes telling the claimant this. CD spoke to the claimant again and instructed him to leave the premises and contact SB the following day. CD did not see the claimant leave the premises so does not know at what time he left. CD accepts that he did not send the claimant straight home as he continued only to be concerned with finding a replacement for the claimant.
The following day CD saw the claimant when he came to the respondent premises to meet with SB. After the meeting CD saw the claimant packing up all of his belongings. CD asked what he was doing, to which the claimant replied that ‘he was gathering up his stuff.’ CD believed that the claimant would be reprimanded but “didn’t think he’d be sacked.”
The Respondent Financial Controller (SB) gave evidence. SB is heavily involved in the management of the respondent and is regularly called with any problems that arise in the respondent businesses’.
CD contacted SB on the morning of the 11th of March to inform him of the situation with the claimant. SB instructed CD to send the claimant home as he was unfit for work. He did not instruct CD to dismiss the claimant.
SB met with the claimant for a “chat” on Monday the 12th of March; this was an informal conversation arranged so SB could check if the claimant was alright. It became clear to SB on meeting the claimant that he was not well. The claimant wanted to leave his employment ‘to sort his head out’ as he was having personal problems. SB did not want to intrude by asking what the nature of his problems were. SB asked the claimant if he was sure about his decision to resign a number of times but the claimant was adamant that the only way forward for him was to leave his employment. Consequently SB asked him to write a letter to that effect. The claimant did not know what to write in the resignation letter so asked SB to draft it for him. Reluctantly SB compiled the resignation letter and the claimant signed it.
SB told the claimant that at any time he could return to his employment; he fully expected to get a phone call from the claimant in 3-6 months asking to return to work. The respondent thought very highly of the claimant’s abilities as a chef and he was a very reliable employee. SB also offered the claimant the option of transferring to an alternative respondent business premises in case that would ease his concerns; the claimant refused this offer. It was one of the busiest times of year for the respondent; it was Mother’s day and St. Patricks day the following week. Losing the head chef would have very serious implications for the respondent and cause major difficulties. Good chefs are very hard to come by; it took a year to replace the claimant. The respondent did not want to lose the claimant at any time but especially at that time of year, they did not dismiss him.
The claimant received all his outstanding entitlements including his P45 the following week. The claimant currently works for the respondent owner’s best friend and has always been given a good reference when requested.
Determination
There is a major conflict in the evidence presented to the Tribunal. On the balance of probability the Tribunal prefers the evidence of the respondent. Consequently, the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)