UD2190/2011, RP2806/2011, MN2230/2011, WT901/2011

   EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                               CASE NO.

EMPLOYEE  ,                                               UD2190/2011

                                                                        RP2806/2011

                                                                        MN2230/2011                  

                                                                        WT901/2011

against

EMPLOYER

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

ORGANISATION OF WORKING TIME ACT, 1997

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Ms. K.T. O'Mahony BL

Members:     Mr. D.  Hegarty

                     Mr. O.  Wills

heard this case in Cork on 13 June 2013

Representation:

_______________

Claimant(s):

Respondent(s):

The determination of the Tribunal was as follows:-

The claims under the Redundancy Payments Acts, 1967 to 2007, and the Organisation of Working Time Act, 1997, were withdrawn.

Dismissal was in dispute in this case.

Summary of Evidence

The claimant commenced employment with the respondent, a building contractor, on 4 April 2005. His employment with the respondent had been arranged through his friend, who worked with the respondent, at the latter’s request, prior to the claimant’s arrival in Ireland. The claimant is a carpenter and had his safe pass but the respondent maintained that he worked as a general operative, helped the carpenter and did a bit of ground work. The respondent found him to be a very good employee. The claimant enjoyed his work. His wife and three young children were with him in Ireland.

The claimant did not have a written contract of employment. It was the claimant’s evidence that like the other Polish employees working with the respondent, he generally returned to Poland twice a year on extended holidays; wages were not paid for the extra time taken. Holidays were usually taken during the last two weeks of July and any extension to holidays was with the prior agreement of the respondent. It was the respondent’s evidence that extensions were only given in quiet times.

It was the claimant’s position that in April or May 2011, having spoken to the respondent, he booked his flight to Poland for 18 July. His return flight was booked for 19 August 2011. While on holiday a friend phoned him looking for his Irish address for the respondent. The claimant denied the respondent’s assertion that he (the respondent) had made a number of phone calls to him during the period. On his return to Ireland the claimant found three letters respectively dated 2 August, 5 August and 15 August 2011 had been sent to him by the respondent. In his letter of 5 August the respondent stated that as he had not received a reply to his letter of 2 August, he assumed that he was not returning to work. In his later letter he informed the claimant that he had paid all monies owing to him into the bank. The claimant, thinking that the contents of the letter of 5 August amounted to a dismissal, phoned the respondent and asked if he had been dismissed or whether he should return to work. The respondent told him not to return because he had not returned from holidays on time and not to contact him again. While in Poland his youngest child was diagnosed with a condition requiring an operation, which was to be performed in Ireland and he told the respondent about this. The respondent’s response was that it was not his problem. Shortly afterwards on the same day the claimant sent a text to the respondent seeking his P45 for Social Welfare. While he had got on well with the respondent, a key (a tool for repairing a digger) was missing shortly before the holidays and the respondent had searched through the claimant’s box and ruck-sack without seeking his consent and warned him not to discuss it or he would be without a job. The claimant does not have a pass to drive a digger. It transpired that the employee who had been operating the digger had it. The claimant did not know that the school project had to be completed by September.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               

The respondent’s position was that he did not have any conversation with the claimant in April or May regarding holidays and he had not agreed that the claimant could have an extended holiday.  He had spoken to all his employees after Easter and told them that holiday period would be the last two weeks in July. The respondent was working on a school during August and it was re-opening in September. The claimant had worked on schools in the past. He had never given an employee four weeks holidays during the summer.

On Tuesday 2 August 2011 all employees except the claimant showed for work. He tried phoning the claimant numerous times that morning and throughout that week but got no reply. He wrote to the claimant three times between 2 and 15 August. The respondent was annoyed that the claimant had not returned to work on 2 August and when the claimant phoned him on 19 August he asked him why he had not returned but he was cut off after 90 seconds. Around half an hour later the claimant requested his P45. The respondent understood he was leaving his employment. He denied telling the claimant not to return and he did not dismiss him. The respondent took on a replacement for the claimant on 22 August.

.

Determination

Dismissal was in dispute. While it was common case that the claimant telephoned the respondent on 19 August 2011 there was a dispute as to the contents of that conversation. The Tribunal by majority, Mr. Hegarty dissenting, accepts on the balance of probability the claimant’s version of that telephone conversation and finds it reasonable for the claimant to interpret the respondent’s instruction not to return to work and not to contact him again as a dismissal. As there was an absence of fair or any procedures the Tribunal finds that the dismissal was unfair. The claim under the Unfair Dismissals Acts, 1977 to 2007, succeeds. The Tribunal finds compensation to be the most appropriate redress and having satisfied itself as to the claimant’s efforts to mitigate his loss, deems it just and equitable to award the claimant the sum of €32,500.00 under the Acts.

As the claimant did not receive any prior notice of his dismissal, the Tribunal awards him compensation in the sum of €1,920.00 (being equivalent to four weeks’ gross pay) under the Minimum Notice and Terms of Employment Acts 1973 to 2005.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)