EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
UD40/2012
Employee - claimant
against
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. F. Murphy
Members: Mr. D. Morrison
Mr M. McGarry
heard this claim at Castlebar on 13th September 2013
Representation:
Claimant: Mr. John J Quinn, John J Quinn & Company,
Solicitors, Earl Street, Longford
Respondent: Dillon Leetch & Comerford, Solicitors, Main Street,
Ballyhaunis, Co Mayo
Background:
The claimant worked as a chef in the respondent restaurant. The claimant contends that the owner (also known as IA) of the respondent had to return to Pakistan to visit family. The claimant spoke to IA before he left because IA owed him three weeks pay. IA asked him to wait until he returned from Pakistan and he would pay him. IA also asked him to look after the shop and the business until he returned. He looked after the business and had to work seven days a week to keep the business going. When IA returned the claimant requested his wages and IA told him that he could not pay him but that if he “wanted to work, work, if not don’t work”. the claimant took this to mean that IA was no longer employing him and was dismissing him. The claimant contends that the dismissal was unfair as he had not done anything to warrant the dismissal and did not want to leave his employment as he was supporting a young family.
The respondent contends that the respondent did not dismiss the claimant; the claimant left of his own accord. The claimant was paid up to date at the time of dismissal.
Respondent’s case:
It must be noted that the employee has other claims under the Payment of Wages Act, 1991, ref; PW 351/2012 and the Minimum Notice and Terms of Employment Acts, 1973 to 2005, ref: MN334/2012, and the evidence adduced is for all cases.
The Tribunal heard evidence from IA. The witness described the grievance procedures in the respondent. Pay-slips were opened to the Tribunal and the witness gave evidence to the Tribunal regarding the pay-slips. He explained that the claimant was paid with cash in an envelope. The respondent’s accountant prepared pay slips every week he himself told the accountant what hours were worked each week and he told the accountant if the hours increased or decreased. He phoned the accountant every fortnight or more to acquire the payslips. He himself physically collected the payslips.
The witness explained that he had to travel to Pakistan because his father was unwell. He went in June 2011 for six weeks. The claimant took over running the restaurant. The claimant was familiar with the suppliers and with looking after the staff. He asked the claimant to look after the business. He asked him to look after the wages and all the bills and the claimant agreed. The claimant was also to pay the suppliers. The claimant also paid the wages. The claimant paid himself because he was in charge. The claimant obtained the money to pay these bills from the take away till.
It was put to the witness that the claimant alleges he asked him for money to be paid on his return from Pakistan and the witness explained that “there was no money for me when I came back and I own the business”. He never told the claimant that he had not the money to pay him. The claimant was given payslips for July August and September 2011 and the last payslip was dated 08th September 2011.
He asked the accountant to analyse the income because when he returned there was no money. He had asked the claimant where all the money had gone. When he asked where the money was the claimant showed him the bills and said that business was quiet.
The claimant finished working but he never told the claimant that he was not to come to work. He called to the claimant’s home and asked him to return to work but the claimant refused. The claimant did not give him a reason nor did he give him notice of termination.
The Tribunal heard evidence from IA’s son (NA). He explained that he helped out in the take away after school finished in July. He never worked weekdays and the claimant never gave him money from the till at weekdays nor at weekends.
Claimant’s case:
The Tribunal heard evidence from the claimant. He explained that he commenced working in 2010 and worked making burgers and pizzas and worked on the till. He sometimes got a payslip maybe every two weeks.
IA asked him to look after the business because he was going to Pakistan. He looked after the business and worked seven days a week. He agreed to do this for extra pay and they agreed €500.00 per week. His last pay was before 07th May 2010. He survived by using his savings. IA told him that he would pay him on his return because he needed money for his trip to Pakistan.
He did not take the money out of the till to pay wages or bills. Regarding the tills the son (NA) of IA came in every day to work the till. He gave the money to NA and NA gave the money to his mother. He gave NA as lift to his house and NA gave the money to his mother.
When IA returned he asked IA for his wages and IA told him that there was no money. He told IA that he had given the money from the till to his son NA. IA got angry with him because he kept asking for his money. IA then told him “If you want to work, work, if not go away”.
The claimant gave evidence as to his loss.
Determination:
The Tribunal having heard the evidence adduced determines that on the balance of probability the claimant’s evidence to be more credible. The Tribunal notes that the respondent’s accountant was not available. The Tribunal determines that the claimant was unfairly dismissed and deems compensation to be the most appropriate remedy. Accordingly the Tribunal awards the claimant the sum of €5,780.00 under the Unfair Dismissals Acts, 1977 To 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)