UD1693/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                 CASE NO.

Mark Devereux                                                                                                                                                                                                                                                           UD1693/2012

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

Lodgevale Limited T/A An Chistin

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr D. Hayes

Members:     Mr L. Tobin

                    Mr P. Trehy

heard this appeal at Dublin on 23rd January 2014

Representation:

_______________

Appellant:       Francis B Taffe & Co, Solicitors, Edmund Rice Square, Athy, Co Kildare

Respondent:   Mr John C Reidy, Reidy Associates, Solicitors, 3 Mount Street Crescent,  Dublin 2

This case came to the Tribunal as an employee appeal under the Unfair Dismissals Acts, 1977 to 2007, against Rights Commissioner Recommendation r-120661-ud-1/JT

Determination:

The claimant had commenced employment in 1995. He told the Tribunal that his employment had gone smoothly and that he had a good relationship with his employer. In the summer of 2011 he said that things began to deteriorate and several issues arose in the ensuing months, principally relating to complaints about his performance. The Tribunal does not require the detail of these issues as they do not bear on the issue of the determination of his employment.

On Friday 20^th January 2012 DH and SH the two directors of the respondent company left the premises for somewhere between one and two hours. On their return they wanted to meet the claimant to discuss his performance. Before the discussion SH had checked the wine fridge and noted that three bottles were not there and she further noted that they did not appear to have been entered on the till role. The claimant was asked for an explanation and he said that the larger bottle had been broken and he showed them the glass in a bin. He said that he did not know anything about the smaller bottles. SH and DH told him to go home and return the following Tuesday with an explanation. In any event he was nearly finished work for that day and his next rostered day was Tuesday 24^th January. He offered to be searched for the wine, but the offer does not appear to have been accepted. SH then absented herself and DH prepared to close the premises shutter and the claimant left. The claimant told the Tribunal that, as he left, DH told him not to bother coming back on the Tuesday without a written explanation of the whereabouts of the wine because he would be sacked if he didn’t have one. DH emphatically denied ever having said this.

The claimant telephoned a colleague, BD, that evening and discussed what had happened. She advised him to go in on Tuesday and simply tell his side of the story. The claimant does not appear to have told BD that he was dismissed.

The claimant did not come into work as rostered on the following Tuesday and BD was called in to cover. SH did not call the claimant to see whether he was coming in or not. The claimant did come in at about 3.30pm and had a further discussion with SH and DH. BD was working in the vicinity and confirmed the salient elements of the ensuing conversation. The claimant asked for his payslip and P45. SH asked why he needed his P45 and the claimant told her it was because he had been sacked. Both SH and DH told him that he had not be sacked. The claimant left the premises.

About two weeks later the claimant telephoned looking for his P45. SH wrote to him and told him that he was deemed to have left his employment of his own accord and asked him to submit written confirmation of his resignation. A further letter was written on the 17^th February, again clarifying that he claimant was not dismissed but that as he had failed to come to work since, he was deemed to have left the employment.

It is clear that the claimant felt that what transpired on the 20^th January was a dismissal. He may not, however, have come to that view immediately given that he does not appear to have told BD that he had been dismissed. It is equally clear that he was emphatically told on Tuesday 24^th January that he had not been dismissed. It is also clear that in all correspondence from the respondent it is apparent that he had not been dismissed.

The Tribunal is satisfied that the respondent wanted an explanation from the claimant about his knowledge of the missing wine. It is certainly possible that a failure to give and explanation might have led to disciplinary proceedings. However, the Tribunal is not satisfied that the claimant was dismissed from his employment.

It should be noted that this is a case in which the onus of proof falls on the claimant. Consequently it is the finding of the Tribunal that he claimant was not dismissed from his employment by the respondent. Accordingly, this appeal against the recommendation of the Rights Commissioner fails and the recommendation is upheld.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)