PW311/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                            CASE NO.

                                                                                                                                    PW311/2012

Tobias Streitenberger,            -           appellant                                                                    

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

Tobias Streitenberger

-v-

Breaghwy House Hotel Limited (In Receivership),

Breaffy House Resort,

under

PAYMENT OF WAGES ACT, 1991

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Dr. A. Courell B.L.

Members:        Mr. D. Morrison

Mr T. Gill

heard this appeal at Castlebar on 2nd May 2014

Representation:

Appellant:       Cllr Michael Kilcoyne,

9 Turlough Road, Castlebar, Co Mayo

Respondent:   Mr Michael McGrath, Ibec, Confederation House,

Lower Baggot Street, Dublin 2

Michael McAteer, Grant Thornton,

Chartered Accountants, 24/26 City Quay, Dublin 2

Background:

This case is before the Tribunal by way of a former employee of the respondent appealing the Decision of a Rights Commissioner under the Payment of Wages Act 1991, ref: r-114978-pw-11. The former employee being the appellant and the former employer the respondent.

The appellant worked as a chef in the respondent which is a hotel. The appellant is a German national and works in Ireland and has family in Ireland.

Appellant case:

The Tribunal heard evidence from the appellant. He has a masters degree as a chef. He was in his native country which is Germany when he received a phone call from a Mr. GN of the respondent hotel. GN asked him if he would be interested in working as a chef in the hotel for the summer of 2011 and he told GN that he was in Germany and that he would be returning to Ireland in June and would speak to him then. He returned and spoke to GN and he agreed to work in the hotel from 17^th June 2011 to 31^st August 2011.

Towards the end of June on or about 29^th June he was working in the hotel. He was in charge of three sections in the hotel and it was busy. At the start of a shift a Mr. D ordered a steak sandwich. The appellant forgot about the order for reasons that he outlined to the Tribunal. Mr. D got annoyed with him and shouted abuse at him. He told that Tribunal that he felt that Mr. D was going to strike him with a container. He told Mr. D that they would talk about it after the food service was over/ that they would talk about it the next day. The head chef spoke to him about the matter and then told him that the management had decided to terminate his contract. The head chef told him that the management told him to take him off the roster; The head chef told him that he had taken him off the roster.

The appellant told the Tribunal that he took the blame for the misbehaviour of the other person. There was no meeting to investigate the incident; the head chef had not witnessed the incident. The head chef told him that he was finished.

In cross-examination it was put to the appellant that he was offered work in another part of the hotel after the incident, that no one told him that his employment was terminated. It was put to him that in the car park of the hotel he asked the manager for his form p45 and holiday pay. The appellant disputed this. The appellant said he did of course look for his holiday pay.

The appellant agreed that he was paid for all of his shifts.

Respondent case:

The Tribunal heard evidence from Mr. WB for the respondent. The witness explained that the appellant was paid weekly for the previous week that he worked. The appellant had been paid for all of the shifts that he had worked.

There had been an altercation on 31^st July 2011. The appellant was taken off the rota for the hotel and it was suggested that they move the appellant to their sister hotel. The management asked their head chef to offer the appellant work in their other hotel. He had said they need to find a solution to the situation so to put one of the protagonists in one hotel and the other in another hotel. The head chef returned to him and told him that the appellant did not want to work in the other hotel.

One week later he was in the car park with his family and the appellant approached him. The appellant asked him for his p45 and any holiday pay that he was due. He said that he was going to Germany for two weeks holiday and that on his return he was going to commence employment in a bar / nightclub in Ireland. The appellant requested his p45.

In cross-examination the witness explained that they did not remove the appellant from work that they asked him to work in the other hotel and he did not want to work in the other hotel, “at no stage was he suspended”. The witness also explained that the appellant had worked in the other hotel previously for a four month period.

Determination:

The Tribunal having heard the evidence adduced determines that the appellant did not work for the respondent for a period that he is appealing that he should be paid.   The Tribunal cannot find that he should be paid for the period that he did not work.

Accordingly, and the appeal fails and the Tribunal upholds the Rights Commissioner Decision under Payment of Wages Act 1991, ref: r-114978-pw-11.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)