EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
EMPLOYEE , UD1731/2011
against the recommendation of the Rights Commissioner in the case of:
EMPLOYEE -appellant
-v-
EMPLOYER -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern B.L.
Members: Mr. B. Kealy
Mr. F. Keoghan
heard this appeal at Dublin on 20th September 2012
Representation:
Appellant:
Respondent: No representation listed
Background:
This case is before the Tribunal by way of an employee appealing a Recommendation of a Rights Commissioner ref: r-101010-ud-10/RG under the Unfair Dismissals Acts, 1977 To 2007. The employer being the respondent and the employee being the appellant.
The respondent is a security company and the appellant worked as a security guard.
Respondent’s case:
The appellant started work in November 2008. There was a transfer of undertaking in May 2009 at which stage the appellant became an employee of the respondent. The Tribunal heard evidence from the operations manager of the respondent. He told the Tribunal that on 20th March 2010 there was a claim by a minor that the appellant “wrongfully arrested” the minor while on duty at a client’s store. The witness investigated the incident. A copy of documentation from HR was opened to the Tribunal:
“… the service manager at the time was asked to investigate a claim of false arrest by the appellant on 20/3/10 at the client’s store) …………. The findings were that a young female had been falsely accused of theft and this incident is now the subject of a civil action. The appellant had not followed the correct procedures during the incident….
The client subsequently removed store approval for the appellant from all of its stores. It was the client’s decision and was out of the hands of the respondent. The appellant’s contract states, “Should the client no longer require your services, we will try to relocate you however if this is unsuccessful following consultation, we will have no alternative but to terminate your employment”.
A disciplinary meeting took place on the 19th April 2010 with the operations manager to discuss the failure to follow the respondent’s arrest procedures and to look at alternative work for the appellant. The result of the meeting was that the appellant was issued with a final written warning At this juncture the operations manager did not dismiss the appellant. He had dismissed others for the same type of incident but he felt that the appellant had a new child arriving he should continue to employ him. The appellant did not appeal that decision.
The aforementioned client was the respondent’s main client at the time of the incident. In terms of alternative employment the operations manager was restricted in transferring the appellant as all positions with other clients were filled at that juncture. He could however offer the appellant hours with other clients where various employees may have been on sick or holiday leave. The witness explained that in the circumstances the respondent could not guarantee hours to the appellant.
The operations manager subsequently offered the appellant the opportunity to remain with the company on a ‘zero hours’ contract so that he could cover other employees on sick and/or holiday leave with the respondents two other clients This offer was confirmed in writing on 27th April 2010 and an amendment to contract was also sent on that date. The appellant did not sign the amended ‘zero hours’ contract.
The appellant indicated to the operations manager that in the circumstances he had been in contact with his previous employer in the hope that he could get hours with them to supplement his income. On 21st April 2010 the appellant sent the operations manager an e-mail explaining the his former employer was unable to offer him any work and therefore he was happy to accept any ad hoc work with the respondent which he did during the course of May 2010.
On the 28th May 2010 the appellant sent the respondent a text asking for his P45. In response, the operations manager telephoned the appellant and explained that a P45 could only be issued when he left the company. The appellant then confirmed that he understood this and said that he wished to leave the company and so his verbal resignation was accepted. His resignation was confirmed to on the operations manager on the 26th May 2010.
In cross-examination the witness agreed that the appellant’s contract did not provide for placing him on zero hours. The appellant did not sign the document consenting to zero hours however it had been agreed between themselves to reduce the hours. It was the appellant’s position that he only wanted the P45 for social welfare purposes as he was in such few hours however the witness said that this was not mentioned to him - the appellant just told him he wanted his form P45. He asked the appellant if he wanted to resign and he said that he did.
Appellant’s case:
The Tribunal heard evidence from the appellant. He confirmed that he had worked with the respondent (and its predecessor) since 2008 and confirmed that an incident concerning a minor had occurred in one the respondent’s main client’s stores. He attended the meetings on the 16th April 2010 and 27th April 2010. He did receive a final written warning but did not appeal it on the advice of his solicitor.
He confirmed that he was asked to sign what was in effect a ‘zero hours’ contract following this incident but did not do so on advice from his solicitor. He sought work from his previous employer to supplement his income in April 2010 but to no avail. He confirmed that in May 2010 he did approximately 30-39 hours work with the respondent in a four week period which was not enough to support his family. He confirmed that he sent the text message to request his P45 to the operations manager and it was his evidence that social welfare asked him for it in circumstances where he had no permanent work for a number of weeks. The appellant gave evidence that he did explain this to the operations manager who in turn told him that he would have to resign if he wanted his P45. It is the appellant’s position that he did not resign but rather wanted to supplement any income he received from the respondent with social welfare payments.
Determination:
Having heard the evidence adduced in this case the Tribunal determines that the claimant was not unfairly dismissed. Accordingly, the Tribunal upholds the Recommendation of the Rights Commissioner ref: r-101010-ud-10/RG, UD1731.11, under the Unfair Dismissals Acts, 1977 To 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)