EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE ,
- claimant MN311/2012
UD340/2012
WT164/2012
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: Mr. T. Ryan
Members: Mr J. Browne
Mr P. Trehy
heard this claim at Portlaoise on 19th September 2013
Representation:
_______________
Claimant(s) : In Person
Respondent(s) :
Summary of Case
The claimant gave evidence that he worked for the respondent security company from 27 April 2005. During his tenure of employment with the respondent he worked on a number of different sites and he also worked for an another employer while working for the respondent. He gave evidence that on 27 August 2011 he was told by (KL), director of the respondent company that he could not work for another employer and continue working with the respondent. The witness replied that he could not afford to cease working for his other employer and (KL) then said that there was no more duty for him with the respondent company.
The witness gave further evidence that he subsequently contacted (BK), who worked as an office administrator for the respondent. On 30 September 2011 he was offered 3 shifts at a site in Maynooth by (BK). The witness worked these 3 shifts on 30 September and 1 and 2 October. The 2 October 2011 was the final day that he worked for the respondent. He subsequently contacted (BK) seeking further work but no further work was offered to him.
He denied that (KL) offered him work on sites in Kilbeggan and Edenderry. He gave evidence that he did not receive the letter dated 22 October 2011, a copy of which was opened to the Tribunal offering him work as a security officer in either Edenderry or Kilbeggan. His former solicitor wrote to the respondent on 10 January 2012 seeking clarification as to whether or not his position had been made redundant. A copy of a reply to this letter addressed to the claimant’s former solicitor from (BK) dated 16 January 2012 was opened to the Tribunal. This letter stated inter alia that the claimant was never dismissed from his employment and should he wish to take up the offer of employment at one of the respondent’s other contract facilities he should contact (BK) or (KL). The witness gave evidence that he did not receive this letter nor was he shown a copy of the letter by his former solicitor.
A further letter dated 15 February 2012 from the claimant’s former solicitor was opened to the Tribunal. This letter was in response to the respondent’s aforementioned letter of 16 January 2012 and stated inter alia that they had taken their client’s (the claimant’s) instructions in relation to the termination of the employment relationship and that the employment relationship did not terminate in the manner as outlined in the letter of 16 January 2012. It further stated that they had been instructed to proceed with a complaint to the Employment Appeals Tribunal. The claimant denied that his former solicitor had taken his instructions as outlined in that letter.
The claimant accepted that he had received his full holiday entitlements for the year 2011 and his last pay date with the respondent company was 2 October 2011.
(KL) for the respondent company gave evidence that following the conclusion of work on a site in Portarlington towards the end of September 2011 he offered the claimant further full-time work on a site in either Kilbeggan or Edenderry. He asked the claimant to go to the Kilbeggan site to receive training on the job. The claimant did not report to the Kilbeggan site and (BK), the office administrator attempted unsuccessfully to contact him. (KL) then wrote to the claimant by way of the aforementioned letter dated 22 October 2011 requesting that he contact the company with regard to arranging training for the facilities in either Edenderry or Kilbeggan. The claimant did not make any further contact and the company subsequently received a letter from the claimant’s solicitor dated 10 January 2012. There then ensued a further exchange of correspondence between the parties as outlined in the aforementioned summary of the case.
The witness denied that the claimant was ever dismissed. He accepted that he informed the claimant that his work with his other employer may not be compatible with the work available on the Kilbeggan site. He could not inform him as to his shift cycle on the Kilbeggan site until he reported for work on that site which he never did despite the offer of work on that site.
Determination
The Tribunal carefully considered the evidence, both oral and written adduced on the day of the hearing. There was a clear conflict of evidence between the parties in relation to the termination of the claimant’s employment. The Tribunal is not satisfied with the entire evidence given by the respondent however the Tribunal notes that there was an offer of work in the respondent’s letter of 16 January 2012 and this offer was not accepted. In this regard the Tribunal notes that the claimant did not engage with the respondent. The claimant denied that he had instructed his former solicitors’ in relation to the respondent’s comments in their letter of 16 January 2012. The Tribunal found this evidence to be unsatisfactory in light of the existence of the letter of 15 February 2012 from the claimant’s former solicitors.
Having taken the totality of the evidence into consideration the Tribunal finds on the balance of probabilities that the claimant was not unfairly dismissed and the claim under the Unfair Dismissals Acts 1977 to 2007 fails. The claim under the Minimum Notice and Terms of Employment Acts 1973 to 2005 also fails.
As the claimant has accepted that he received his full holiday entitlements for the year 2011 the claim under the Organisation of Working Time Act 1997 also fails and is hereby dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)