UD1515/2012, PW689/2012, TE239/2012, WT363/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                             CASE NO.

                                                                                                                        UD1515/2012

                                                                                                                        PW689/2012

TE239/2012

Mull Enterprises Limited T/A Yeomanstown Stud – appellant                     WT363/2012

against the recommendation of the Rights Commissioner in the case of:

Serhiy Zholud – respondent

V

Mull Enterprises Limited T/A Yeomanstown Stud

Under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001

PAYMENT OF WAGES ACT, 1991

ORGANISATION OF WORKING TIME ACT, 1997

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Mr D. Hayes BL

Members:        Mr J. Horan

Mr S. O'Donnell

heard this appeal at Dublin on 13th December 2013

Representation:

_______________

Appellant(s):               Mr Alan Dodd BL, instructed by:

                                    Ms Maria O'Donovan

Wolfe & Company Solicitors

Market Street, Skibbereen, Co Cork

Respondent(s):            Ms Elizaveta Donnery,

Donnery & Co Solicitors

57 Clontarf Road, Clontarf, Dublin 3

The determination of the Tribunal was as follows:-

This case came before the Tribunal by way of an employer appealing against the recommendations of a Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007, (ref: r-117691-ud-11/RG) Organisation of Working Time Act, 1997, (ref: r-117694-wt-11/RG) & Terms of Employment (Information) Act, 1994 and 2001 (ref: r-117693-te-11/RG) and a decision under the Payment of Wages Act, 1991 (ref: r-117692-pw-11/RG).

The appeal under the Terms of Employment (Information) Act, 1994 and 2001, was withdrawn at the outset of the hearing.

The dismissal was in dispute. The respondent (hereafter referred to as the employee), a Ukrainian national, commenced his employment as a stud farm hand on 1^st August 2004. The employer paid for and organised his work permits during his employment. He was paid €388 gross per week and was provided with onsite accommodation with utilities included. The appellant’s County Kildare based stud farm breeds, buys and sells thoroughbred stallions and covers mares from around Ireland and the UK. Nine employees are employed in the yard and one in the office.

The appellant cited a number of issues during the employee’s employment which the respondent denied, and two written warnings, which he disputed receiving.

The employment ceased in the autumn of 2011. The appellant contended that the employee left his employment after a disagreement on 6^th August 2011. After two weeks of being out of contact he, and a colleague who had also left, reappeared and requested to resume working until the end of October 2011. This was a mutually beneficial arrangement as the employee had yet to secure other work and autumn is an extremely busy time of year for the horse breeding/selling industry and the employer needed all available staff.

The employee disputed that he left the employment on 6^th August 2011. He contended that he was on pre-approved unpaid leave for two weeks. During this time he contended that he went to Galway to drink with friends. During the hearing the employee’s bank statement for that period of time was closely examined. It showed several transactions made in the Kildare area and none in Galway, but the employee maintained that he had been in Galway for at least 10 days. He stated that he had been drinking and could not remember events exactly.

The Manager gave evidence that on 6^th August 2011 the employee was leading a horse to a walker machine in a careless manner by dragging it behind him and it caught its leg in a door and nearly turned over. The employee refused to admit his mistake and verbally abused the manager and threatened to hit him. The Manager told him to go home and cool down. The employee did not appear for work the following day or the following Monday. The Manager checked his accommodation and found that the employee’s belongings were gone. Another employee had also left. The Manager made several unsuccessful attempts to contact the employee by phone. He did not speak to the employee until he reappeared almost two weeks later when it was agreed that the employee would resume working.

The employment ultimately ended on 18^th September 2011 when the employee refused to carry out an instruction to put rugs on horses. The employer put to the employee that if he didn’t want to carry out the instruction it was open to him to leave the employment. This was the fourth evening that the claimant had failed to show up for this duty. Employees took turns doing rug duty. The employee had carried out this duty without remark prior to leaving in August 2011. The respondent arrived at the office the following morning with his bags packed to receive his outstanding pay.

A number of incidents during the employment, which resulted in formal warnings being issued, were raised at the hearing. The employer did not have any written disciplinary procedures in place. A further incident involving a road traffic accident and a subsequent prosecution was dealt with in evidence.

The employee denied that there were any disciplinary issues during his employment. He disputed ever having received any warning letters. He maintained during the hearing that he had not left his employment in August 2011. He had taken his allotted four weeks’ annual leave earlier in the year. When the Manager came to his house on 18^th September 2011 he refused to go and do rug duty. The Manager told him not to come back to work. The employee had no alternative work to go to. He could not apply for a residency permit until Spring 2012 and he understood that he needed to remain in employment until then. He secured work in 2012 and was able to apply for his residency permit which he later received.

Determination:

These matters come before the Tribunal by way of appeals from a number of recommendations of the Rights Commissioner.

The appellant (hereinafter referred to as “the employer”) is the owner of a stud farm in Co. Kildare. The respondent (hereinafter referred to as “the employee”) was employed as a farm labourer. His employment commenced in 2004. He was described as a good worker. While the Tribunal heard evidence about previous written warnings and a driving offence, these were not relevant to the Tribunal’s determination.

The Tribunal was told by DOC, the employer’s manager, that on Saturday 6^th August 2011 a horse being put onto a horse-walker was being dragged by the employee and the horse got caught on a door. DOC shouted at the employee who responded with verbal abuse and raised his fist. DOC told him to go home and calm down. The employee was not due in work the following day, a Sunday. He did not appear for work on the Monday. DOC went to his house and was told that he had left. His belongings appeared to have gone. Over the ensuing fortnight, DOC telephoned the employee on several occasions, without ever getting through.

The employee told the Tribunal that he had, with permission, taken two weeks of unpaid leave and went drinking in Galway in friends for the duration. He had previously used his allocation of annual leave in June. It was, however, apparent from his bank statements that he made several cash withdrawals from bank machines in a number of Co. Kildare towns during his absence. No such withdrawals were made in Galway. It is not credible that the employee went drinking in Galway but returned to Kildare every time that he needed money.

After two weeks the employee got in contact with DOC and told him that he was looking for new work but wished to continue working for the employer in the meantime. It was agreed that he could.

DOC told the Tribunal that one of the important jobs in the yard was putting rugs on the horses in the evening. The time at which this task was performed was entirely weather-dependent. On warmer days it was done later in the evening and vice versa on cooler days. When done later in the evening all staff took their turn at coming back to perform this important task. Before having absented himself, for whatever reason, in August 2011, the employee had not had any difficulty in returning to take his turn. Thereafter he refused. On the fourth evening in a row on which he refused, DOC went to look for him. The employee said that he was not coming and declined to give an explanation. The Tribunal does not accept the employee’s account that this was the first time that he had not come and that he explained his reason. DOC told the employee that this task was part of his duties and that if he did not like his job he did not have to remain. The employee told DOC that he was leaving. The following morning the employee came to the yard to collect his outstanding pay. The Tribunal does not accept the employee’s assertion that DOC told him that he was fired.

While the employee was certainly absent on unauthorised leave for two weeks in August 2011, the Tribunal does not accept that the evidence was such as would allow the Tribunal to find that he had unilaterally terminated his employment at that time. Accordingly the Tribunal is not satisfied that his return to work constituted a new employment or that there was a break in his employment. The Tribunal is satisfied that he was in sufficient continuous employment so as to bring a claim under the relevant legislation.

In cases such as this the Tribunal must examine the circumstances in which the employment was terminated. While the Tribunal is satisfied that no clear and unambiguous words of dismissal were spoken on the employer’s behalf, circumstances can arise in which a dismissal can be inferred from words of a “take it or leave it” variety. The Tribunal is satisfied that a dismissal cannot be inferred from the circumstances of the termination of the employment in this case. The Tribunal is satisfied that DOC was emphasising that the task at hand was a duty that he was required to perform. The Tribunal further notes that it was already the employee’s intention to leave the employment shortly thereafter. The Tribunal is satisfied that the employee resigned his employment in circumstances that did not amount to a constructive dismissal.

In respect of the claim pursuant to the Unfair Dismissals Acts, 1977 to 2007, the Rights Commissioner’s recommendation had made a finding of unfair dismissal and recommended the payment of compensation. Given the Tribunal’s finding that there was no dismissal, the appeal in this regard is upheld and the recommendation of the Rights Commissioner is overturned.

In respect of the claim pursuant to the Terms of Employment (Information) Acts, 1994 and 2001, the Rights Commissioner had recommended that the employee be paid compensation in the amount of €1,000. The appeal in this regard was withdrawn at the outset of the hearing. The recommendation of the Rights Commissioner under these Acts therefore stands.

A claim was made pursuant to the Organisation of Working Time Act, 1997 in respect of his working on Sundays and public holidays. The Rights Commissioner had found breaches in this regard and recommended the payment of compensation. No evidence was adduced as would allow the Tribunal to make any finding in this regard. Accordingly, the appeal is upheld and the recommendation of the Rights Commissioner in this regard is overturned.

A claim was made pursuant to the Payment of Wages Act, 1991 in respect of a payment for minimum notice. The Rights Commissioner had found that he had not received notice of his dismissal and recommend that he be paid compensation. The Tribunal has found that the employee was not, in fact, dismissed. Accordingly, no claim for notice lies. In respect of this claim, the appeal is upheld and the recommendation of the Rights Commissioner is overturned.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)