EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE (claimant) UD2434/2011
WT972/2011
MN2433/2011
Against
EMPLOYER (respondent)
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms N. O'Carroll-Kelly BL
Members: Mr. J. O'Neill
Mr J. Flannery
heard this claim at Dublin on 17th September 2013
Representation:
_______________
Claimant(s) : Hayes, Solicitors, Lavery House, Earlsfort Terrace, Dublin 2
Respondent(s) : O’Riordan & Co. Solicitors, 23, Kingram Place, Dublin 2
The determination of the Tribunal was as follows:
The Tribunal has considered all of the evidence adduced and the documentation submitted during the hearing.
In 2010 an issue arose whereby the respondent became aware that the claimant had used his company name and details in order to enter into a hire purchase type contract to the value of € 17, 403.75. The claimant was unable to give a credible explanation as to how the company name appeared on the contract documents and as to how a company bill got into the possession of the contracting company. The respondent stated that as a result of this event he lost trust in the claimant but because of their history he wanted to give him a second chance. He was given a warning arising out of this event but this was not taken into account when he was dismissed nor will the Tribunal take it into account.
The claimant’s dismissal resulted from him failing to attend work on the weekend of the Oxygen festival. The Respondent stated that he specifically instructed all of his staff that they could not take any leave during the week of the concert because he was taking eight staff members to work at the concert which left his restaurants in Dublin under pressure. The claimant initially stated that he was unaware of this instruction but later, under cross examination, stated that he instructed the staff, he was responsible for, that they could not take any time off during that period. The Tribunal are satisfied that the claimant was fully aware of the respondent’s instructions that no time was to be taken off for the subject week. The claimant stated that he did work from Monday to Thursday and that the respondent told him he didn’t need him over the weekend. The claimant also stated that he himself had a stall at the oxygen concert and that he worked there over the weekend but he only did so because the Respondent didn’t need him. The Respondent categorically refuted this evidence stating that he didn’t work at all during that week and that he was specifically told he was required. The Tribunal find the claimant’s evidence not credible and are satisfied that the claimant knowingly and wilfully disobeyed a reasonable instruction and did so for his own benefit. When the claimant and the Respondent spoke again the respondent informed the claimant that he was being dismissed for gross misconduct. The claimant was not given an opportunity to state his case or to have a representative present. He was not afforded the opportunity to appeal the decision. The Respondent’s procedures in this regard are seriously flawed and as a result the Tribunal find, on a technical basis only, that the claimant was unfairly dismissed.
The Claimant stated that he was entitled to four weeks holidays for the year 2011 and one week for the year 2010. The Respondent stated that the claimant took two weeks holidays in February, 2011 and was only entitled to two weeks. He did not contest that the claimant was entitled to one week from 2010. The Tribunal prefer the respondent’s evidence and find that the claimant is only entitled to three weeks holidays, two for 2011 and one for 2010. The claimant is entitled to €2,602.17 under the Organisation of Working Time Act, 1997.
The Tribunal also awards the appellant his statutory entitlement of €5,204.34 being the sum due for six weeks’ notice, under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
The Tribunal find the claimant’s evidence to be littered with inconsistencies and not credible. The claimant contributed wholly to his own dismissal. Furthermore, no documentary evidence was produced showing that the claimant made any effort to mitigate his loss up until February, 2013. Accordingly, the Tribunal will make no award under the Unfair Dismissal’s Acts.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)