UD910/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                   CASE NO.

EMPLOYEE  claimant                                                               UD910/2012

against

EMPLOYER                 respondent   

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Ms P.  McGrath B.L.

Members:     Mr. M.  Flood

                     Mr T.  Brady

heard this claim at Dublin on 23rd September 2013

Representation:

____________

Claimant(s):                 The claimant in person

Respondent(s):            The respondent in person

Dismissal was in dispute in this case

Claimant’s Case

The claimant told the Tribunal that he commenced employment with the respondent in September 2010 and was employed until March 2012.   He undertook duties such a cleaning, bar work, and hospitality. He had the opportunity to cook.  He did not receive a contract of employment.  He worked five days a week.  Prior to March 2012 he had an issue with the kitchen porter.  He liked his job and the people.  On some days when he reported for work the sun was shining and if it rained he was not paid for some hours that he spent in work.  He asked for time off for the weekend of the 20^th March 2013 and this was agreed beforehand.    He asked for a contract of employment in March 2012.

On Sunday night the respondent contacted him and told him not to report for work as he could not afford to pay him holiday pay.  The respondent told him that he needed to save money so that he could give him his holiday pay.   The claimant told him that this was unfair. He told the respondent that if he was letting him go he needed his P45.    He received his P45 in October 2012.

The claimant was available for work, the respondent told him that he could not return to work and that he would see him the next week.  The claimant went to work on Wednesday and he collected his belongings.  The respondent did not want to get caught up in giving him holiday pay.   The respondent told him that he could employ someone else at a lower rate of pay.   

The claimant never had a full driving licence and he refused to drive the car that the respondent provided.  He obtained alternative employment five to six weeks after his employment terminated.   

Respondents Case

The respondent told the Tribunal that he operated the franchise of a restaurant/bar in a golf club.  The respondent did not work on rainy days.  He did not give the claimant a contract of employment.  He collected the claimant from the LUAS line every day and the claimant was well looked after.  He provided a car for the claimant and the claimant told him that he could not drive a car.

He currently has three employees.   Employees are employed part time. On occasion he had to tell employees not to report for work as due to inclement weather the premises were closed.   The employees cannot be paid where there is no turn over.   The claimant received €10 net per hour.  The claimant knew that he would not be paid for the weeks he had not worked.  The claimant was paid for every hour he worked and he sent details of hours worked to his bookkeeper every week.     

On Wednesday the claimant came in to work and collected his belongings.   He did not contact the claimant on Monday or Tuesday as the claimant had walked out of his job.  

Determination

The Tribunal has carefully considered the evidence adduced.  The claimant claims he was constructively dismissed in circumstances where his employer had consistently failed to regularise his situation. In particular the claimant had no contract of employment and no certainty as to how he was expected to work.  The Tribunal recognises that the nature of the work was weather dependent.  However, the claimant made the case that he was not getting paid for certain hours that he was present in the workplace and went home early by reason of bad weather.  There was no system in place that allowed for employees to clock in the hours worked.

There can be no doubt that the claimant was unhappy in this workplace.   He had no one to turn to and no grievance or complaints procedure applied.

On balance having considered the nature of the relationship the Tribunal is satisfied that the claimant would not reasonably be expected to continue in the workplace without some formal regularisation which was never forthcoming.

The Tribunal recognises that the claimant was only six weeks out of work and that the time factor meant he probably would not have to put in full weeks for the six weeks concerned.  The claimant is awarded €1,800.00 under the Unfair Dismissals Acts, 1977 to 2007

Sealed with the Seal of the

Employment Appeals Tribunal

This______________________

(Sgd.) ______________________