UD1062/2012, MN685/2012

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms K.T. O'Mahony BL

Members:     Mr D. Hegarty

                    Ms P. Doyle

heard these claims in Cork on 29 November 2013

                  and 14 February 2014

Representation:

Claimant:

                    In person

Respondent:

                   Ms Nollaig Hourihane, Director of the respondent on the first day,

                     Mr David Gaffney, Coakley Maloney, Solicitors,

                    49 South Mall, Cork on the second day

The determination of the Tribunal was as follows:-

The claimant worked part-time in the pizza business operated by the respondent. The first day of hearing was taken up with establishing that the claimant had continuity of service from his first day of employment in September 2010 rather than from 30 May 2011 when he became an employee of the respondent.

The claimant, who was studying in Waterford, worked Friday and Saturday nights from starting in college in September 2011. It was the claimant’s position that in or around 17 March 2012 he received a phone call, from the receptionist in the business, in which he was told that he was not to come to work that weekend as new staff were being trained in and he would get his usual hours back the following week. This went on for several weeks and on a number of occasions the claimant tried without success to contact the director (DR) of the respondent. After a few weeks he came to realise that his job with the respondent was gone and that he had been replaced. He needed the work to pay his rent.

The respondent’s position was that the receptionist did not make rostering arrangements with staff and that the claimant had spoken to DR prior to 17 March 2012 and requested time off for study leave and further stated that “he would be finished after the exams”. DR understood this to mean that he was finishing up work after his exams. In the event, the claimant sought to return to work when he had finished his exams. She had misunderstood the claimant’s comment and by the time he had finished his exams, his position had been taken and there were no hours available for him.

Determination:

If the Tribunal were to accept the position of the respondent, which it does not, that there had been a misunderstanding about the question of the claimant’s return to work after his exams then a reasonable employer would have accommodated the claimant by finding hours for him in precedence to hours given to employees taken on since mid-March 2012. The Tribunal accepts the evidence of the claimant that the receptionist told him on or around 17 March 2012, and on a number of occasions thereafter, that new staff were being trained-in and that his efforts to contact DR were unsuccessful. The Tribunal is not satisfied that the claimant sought time off for study leave. In the circumstances, the Tribunal is satisfied that the claimant was dismissed on 17 March 2012 without notice. This being a dismissal without fair or any procedures the dismissal is unfair. It follows that the claim under the Unfair Dismissals Acts 1977 to 2007 succeeds. Based on the claimant’s financial loss, attributable to his dismissal, the Tribunal awards the claimant €2,000.00, in respect of the loss of his weekend work, as just and equitable compensation under the Acts.

The Tribunal further awards the claimant €108.00, being one week’s pay in lieu of notice, under theMinimum Notice and Terms of Employment Acts, 1973 to 2005.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)