UD1229/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                  CASE NO.

EMPLOYEE - claimant                                                                    UD1229/2012

Against

EMPLOYER - respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. M. Levey B.L.

Members:     Mr E. Handley

                     Mr J. Maher

heard this claim at Dublin on 4th November 2013

Representation:

Claimant(s):     Mr. Joseph Burke, McCartan & Burke Solicitors, Iceland

                       House, Arran Court, Smithfield, Dublin 7

Respondent(s) :The manager of the respondent

The determination of the Tribunal was as follows:-

Respondent’s Case

The manager of the respondent company told the Tribunal that the claimant was employed as a bar tender. The claimant had a reputation for drinking and he remained on the premises after the bar closed.   On the 7 October 2011 the claimant was in work in a semi drunken state.   The claimant was in a semi drunken state in work on the 1 November 2011. He gave him a written warning on the 1^st November 2011. On the 14 November 2011 the claimant received a final written warning. On the 18^th November 2011 the claimant reported for work in a drunken state and he was told to leave the premises.   The claimant’s partner contacted him and informed him that the claimant had difficulty in functioning. The clamant was drinking alcohol before going to work. He told the claimant’s partner that he was not prepared to retain the claimant until he sought counselling for his addiction. The claimant’s work record was reasonably good and his problem was that he had a dependence on alcohol.

The claimant’s issues started in 2003 when he had martial difficulties. The claimant contacted the manager in January 2012 and asked him would he consider taking him back.   The manager asked him if he had done anything about his addiction and he told him that he had not but that he felt a lot better.   He told the claimant that he was not prepared to do anything until he addressed his problem.   He told the claimant’s partner that the claimant was dismissed and he spoke to the claimant a couple of months later. He did not issue the claimant with a dismissal letter.

In cross examination he stated that it was not the case that he told the claimant that he needed to sort himself out. The claimant’s solicitor requested his P45 in July 2012 and the claimant received a P45 dated 1 June 2012. The claimant’s employment ended in November 2011. He did not know why the P45 was not issued in November 2011. When put to him that he did not tell the claimant he was dismissed he replied he did not have an address for him as the claimant had moved three times. Negotiations were conducted with the claimant’s partner regarding the claimant’s situation. He was not aware of the claimant furnishing any medical certificates.

JD told the claimant that she was accommodation manager and on the last day of the claimant’s employment he was intoxicated and he fell against the counter.   The claimant went in behind the bar and she heard a bottle breaking.   He claimant had a bad problem.  

Claimant’s Case

The claimant told the Tribunal that he commenced employment with the respondent in 2003.   On the 1 June 2011 the manager told him that he was not taking him back as he had no work for him.   He was informed that things were very quiet. He went in one afternoon, the manager was not there and on Friday he knew that bar staff were being taken on. On 1 June 2012 he telephoned the manager who told him that “we have come to the end of the road”.

He obtained alternative employment in July 2012 three days a week at a lesser rate of pay.       He accepted that he had a drink problem. He was not given any indication that he was dismissed. He agreed that his signature was on the written warning but he did not have a recollection of receiving written warnings.   He went to the AA on the 20 November 2011.

The claimant’s partner told the Tribunal that on the 18 November 2011 she met the manager of the respondent. The claimant was concerned that his job was gone.     The manager told her that he did not want to see the claimant this side of Christmas.   The manager did not say that the claimant was dismissed. She explained to the manager that the claimant had gone to an AA meeting the night before and it was early days and the claimant had a problem for a couple of years.

Determination

The claimant was under the impression that his position was held in abeyance pending his seeking help for his drink problem and that he was not dismissed. However, the employer was of the view that he had dismissed the claimant in November 201l but would consider re-employing him at a later stage if his situation had improved.

Both sides had a different interpretation of the events that occurred between them. However, the documentary evidence presented by the respondent indicates that at some stage the employer believes the claimant was dismissed on the 1 June 2012 and the Tribunal is of the view that this document bolsters the claimant’s version of events.

In all the circumstances the Tribunal believes that the claimant was unfairly dismissed and the Tribunal makes an award of €8,000.00 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)