EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
EMPLOYEE – claimant UD1085/2012
against the recommendation of the Rights Commissioner in the case of:
EMPLOYER - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr C. Corcoran B.L.
Members: Mr D. Moore
Mr M. O'Reilly
heard this appeal at Dublin on 16th October 2013
Representation:
Appellant(s) : In person
Respondent(s) :Mr Paddy Monahan B.L. instructed by Ms Suzanne Caulfield,
Brian Morton & Co, Solicitors, Firhouse Inns Chambers, Firhouse, Dublin 24
The determination of the Tribunal was as follows:-
This case came before the Tribunal by way of the employee appealing the recommendation of a Rights Commissioner Ref: R-120997-UD-12/EH.
Summary of Evidence
In this case the dismissal of the claimant was in dispute. The respondent denied a dismissal took place. The respondent a sole trader operates as a vegetable shop.
The claimant commenced employment with the respondent in February 2010 initially employed to cover the absence of another employee. His duties included the unloading of deliveries, stock rotation, deliveries to customers and general shop floor duties including operating the till. On the 1 February 2012 the respondent approached him and asked him to follow him to the cold room. The respondent was angry and asked him if he noticed anything wrong in the cold room. One box was turned backwards. The respondent began shouting that it was not good enough and that he was not pulling his weight. At this point the respondent was in a rage and the claimant said that he had no right to shout at him in this manner and he began to walk away. The respondent shouted that it was his shop and not to turn his back on him. The respondent requested the shop keys and said to get out of here that he had had enough. He recalled saying that he would hear from his solicitor and later that day sought advice. Occasionally the respondent had asked him to arrange stock better. Prior to that day no serious performance issues were ever raised by the respondent and he had no warnings or disciplinary matters on his record. The claimant did not accept that on the day it was merely raised tempers and that the respondent never dismissed him. He also denied loitering in the vicinity of the shop after the alleged dismissal. He said he lived in the area and passed by as part of his normal daily business. He had no contract of employment or staff hand book setting out a grievance procedure.
The respondent got to know the claimant first as a customer and offered him part time work. They got on well in general. He trained him on all aspects of the business highlighting the importance of stock rotation and daily stock takes. The respondent recalled an incident where a disagreement took place regarding holiday pay in September 2011. On that occasion the claimant had said he did not want to see the respondent’s face again. The witness thought the claimant had left the job on that occasion. The claimant telephoned him some days later asking if he was back working. The claimant returned to work following that disagreement.
On the Monday prior to the alleged dismissal the claimant had expressed his dissatisfaction with the way other employees stocked the fridge and he wanted to carry out that task himself. On the 1 February 2012 the respondent noticed that the lay out in the cold room had changed. He asked the claimant to go to the cold room to have a word. He was unhappy with the new layout and informed the claimant. The claimant said there is nothing wrong with the layout and said he was not listening and walked out before he had finished discussing the issues.
He continued walking saying he was not listening and that he was leaving. The respondent asked him to leave the keys and the claimant asked if he was sacking him to which the witness responded “no – you said you are leaving”. The claimant put the keys down said he would hear from his solicitor and left.
The respondent accepted that he had not provided a contract of employment. He denied dismissing the claimant.
Determination
The Tribunal carefully considered the evidence adduced in this case. The claimant did not discharge the onus of proof that there was a dismissal. The Tribunal note a direct conflict of evidence regarding the incident which occurred on the 1 February 2012. The Tribunal prefer the evidence of the respondent and in the circumstances uphold the decision of the Rights Commissioner. The appeal under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)