EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
UD1306/2012
Employee - claimant
against
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Ms J. Winters
Ms M. Maher
heard this claim at Dublin on 21st November 2013
Representation:
Claimant(s) : Ruane O'Connor, Solicitors, 6-9 Trinity Street, Dublin 2
Respondent(s) :Devaney & Partners, Solicitors, Main Street, Malahide, Co. Dublin
The determination of the Tribunal was as follows:-
Determination
The Tribunal members have carefully considered the evidence adduced. The claimant brings this case under the unfair dismissals legislation and claims that he was spontaneously dismissed on the 22 of July 2012 at the end of an evening shift in the employer’s restaurant.
The employer states that the termination of employment was preceded by a formal handing in of notice on or about the 8 July 2012 and that whilst there may have been angry words exchanged on the 22 July 2012 the departure date of the 23 July was pre-ordained as being the date of the expiration of notice.
It is important for the Tribunal to reconcile the evidence rendered by the restaurant owner and the claimant. Their accounts of their relationship are at variance. To support the employer’s case the employer’s accountant gave evidence and the floor manager gave evidence. Neither of these witnesses gave an account of the day to day relationship between the restaurant owner and the claimant. If there were disciplinary or performance issues these were not formally addressed.
What is agreed between the parties is that the claimant was anxious to have his hard work recognised and some sort of an increase in salary should be given to him. The restaurant owner accepted this request was made and did not appear to make any attempt to either increase the salary or to give an extra shift to the claimant.
In assessing the evidence before it, the Tribunal will have to be conscious of the burden of proof resting with the employer and the Tribunal must be satisfied that the employer acted fairly and reasonable in all the circumstances giving rise to the termination of this employment relationship.
On balance the Tribunal is not satisfied that the employer herein has acted fairly and reasonably. The claimant was clearly unhappy in his employment. There was little or no communication between him and the employer. There was no formal procedure to open up dialogue for either grievances or disciplinary procedures. The not unreasonable request for an increase in salary was not addressed either way. There was no paperwork including payslips, staff hand books and contracts of employment to fall back on. The claimant wrote a letter on the 22 July stating that he had been dismissed that night and it was only in the aftermath of receiving this letter of the 22 July that the employer with the able assistance of his accountant indicated that a notice period was running and due to end on the Monday 2 July 2012.
It seems therefore that the claimant’s employment was terminated on the 22 July which was either a spontaneous dismissal or a dismissal which occurred before the expiration of a notice period given. Either way the Tribunal finds this was an unfair dismissal as the burden of proof has not been established.
In assessing compensation the Tribunal must be mindful of efforts made to mitigate loss. The Tribunal is not satisfied that any great effort has been made to obtain alternative employment and the claimant on his own evidence indicated that he was not prepared to take employment offered as not being sufficiently well paid.
The Tribunal awards the claimant €7000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)