UD2403/2010

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                    CASE NO.

                                                                                                            UD2403/2010

EMPLOYEE    -claimant                                

against

EMPLOYER

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Mr. D. Herlihy

Members:         Mr. G. Andrews

Ms S. Kelly

heard this claim at Limerick on 29th August 2012 and 9th November 2012

Representation:

Claimant: Stiofán Fitzpatrick, Solicitors, Garna House,

Main Street, Sixmilebridge, Co Clare

Respondent: Mr. Mike Cusack, Helix HR, Deerpark,

Clarecastle, Co Clare

Respondent

The Tribunal heard evidence from the owner of the respondent company. He told the Tribunal that the claimant commenced in 2007 and was a panel beater. The claimant phoned him on or about 12^th October 2010 to say that he wanted to go to Poland to his father in law’s funeral. He told the claimant that it was not good enough and the claimant told him to look for a new panel beater as he was finished with him.

On 12^th October at 9.00 – 9.15 am he asked where the claimant was and he was told that he had gone to Poland. He spoke to the claimant on the phone and told him that he had five bench jobs to do. The claimant told him that he was going to Poland and to look for a new mechanic and that when he returned to Ireland he would look for a new job. The claimant did not return to work on Monday 18^th October.

The Tribunal heard evidence from the Workshop manager. on 12^th October he was in the office with the owner and the owner told him that the claimant would not be in work as he was travelling to Poland.   On 18^th October the claimant arrived into work and went to his work area. He placed his tools into his tool box and left the premises with his tool box.

The Tribunal heard evidence from another witness who explained that on 18^th October the claimant arrived onto the premises and took his tools. The claimant left the premises and there was no conversation.

Claimant’s case

The Tribunal heard evidence from the claimant. He told the Tribunal that he worked in the respondent for three years. He enjoyed the work and he had no problems. He did not want to leave and he did not resign.

He received a phone call to say that his father in law passed away. He did not tell the owner that he was leaving the job and he did not say that on his return to Ireland that he would look for a new job.

When he returned to work the owner came over to him and said to him, “you are not working here”. The owner asked him to leave. He had not received a warning letter.

He had not received a contract of employment. His employer had not told him what to do if he had a problem. He was not aware of grievance or disciplinary procedures.

A daughter of the claimant AL told the Tribunal that she was on holiday with her Father, Mother, sister and brother-in-law when her Mother had a heart attack. This meant that her Father and Mother had to extend their stay until Her Mother was fit to fly back to Ireland.

Subsequently AL’s Maternal Grandfather died in Poland and her Father had to fly out there for his funeral. AL said that her Father had no intention of resigning from work and did not do so. That was why she went to see the respondent and asked him why he let her Father go. She denied that she was abusive or aggressive towards the respondent and told the Tribunal that the respondent said to her that he understood her Fathers predicament but that his business was more important than anything else.

Determination:

The Tribunal carefully considered the evidence adduced at the hearing. There was a clear conflict in evidence between the parties. On the one hand the claimant said that he was dismissed by the respondent and on the other hand the respondent said that the claimant resigned of his own volition.

On balance the Tribunal preferred the evidence of the claimant and is satisfied that he was dismissed from his employment without recourse to fair procedures or natural justice. Therefore the Tribunal finds that the claimant was unfairly dismissed and awards him €12,500.00 under the Unfair Dismissals Acts, 1977 to 2007.

As a member of the division of the Tribunal that heard this claim, I confirm that the Determination herein is as was agreed by all the members of the division.

This:   ________________________                           

Signed: _____________________                 

            (EMPLOYER MEMBER)      

As a member of the division of the Tribunal that heard this/these claim, I confirm that the Determination herein is as was agreed by all the members of the division.

This:   ________________________                           

Signed: _____________________                 

            (EMPLOYEE MEMBER)                  

The two continuing member/s of the division of the Tribunal that heard this/these claim have confirmed that the Determination herein is as was agreed by all the members of the division.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

            (CHAIRMAN OF THE TRIBUNAL)