EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF:
CASE NO.
UD817/2013
PW305/2013
Marek Warantowick - appellant TE107/2013
against the recommendation of the Rights Commissioner in the case of:
Tony King Motor Centre, - Respondent
against
Marek Warantowick, appellant
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
PAYMENT OF WAGES ACT, 1991
TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. C. Corcoran B.L.
Members: Mr. P. Pierce
Mr. F. Keoghan
heard this appeal at Dublin on 8th May 2014
Representation:
____________
Appellant(s):
Ms. Deirdre Costello BL instructed by Mr. Arthur Denneny, C Grogan & Company, Solicitors, Main Street, Clane, Co Kildare
Respondent(s) :
Mr Thomas Noone, 104 Manorfield, Kinnegad, Co. Westmeath
The determination of the Tribunal was as follows:-
This case came before the Tribunal by way of an employee appealing against the recommendation of the Rights Commissioner reference nos. r-129299-ud-12/JC,. Pr-129302-pw/12/JC and r-129300-te-12/JC.
The appeal under the Payment of Wages Act, 1991 was withdrawn during the hearing.
Respondent’s Case
The respondent told the Tribunal that the appellant was employed as a panel beater with his company for four years. The appellant told him on a Thursday in June 2012 that he was absent due to illness the previous week as he was allergic to solvents. The appellant told him that he had to leave work. He asked the appellant if he wanted to leave now and if there was any chance that he might return to work in the respondent. They had a discussion and the appellant told him that he was leaving. He gave the appellant any monies that were due to him at a later stage. The appellant never collected his P45. The next contact he had with the appellant was six to eight months later. The appellant’s job is still available for him and the appellant’s position was never filled.
In cross examination he stated that the appellant did not have a contract of employment or Terms of Employment. The safety officer attended the respondent’s premises in September 2011 and the safety masks that he has in place are top of the range. The appellant was not under pressure and no employee worked without a break. He disagreed that he told the appellant to deal with the financial officer when he returned to work after his illness. He did not dismiss the appellant. He currently has six employees. He thought that the appellant might have returned to work with the respondent. He was not aware until the date of the hearing that the appellant had received his P45 from the respondent. He disagreed that his accountant dismissed the claimant.
JD on behalf of the respondent told the Tribunal that in June 2012 he was getting work done in the respondent’s garage. One of the lads told the respondent that he had to leave. He thought the person had to leave because he was ill. He was not a friend of the respondent.
Appellant’s Case
The appellant told the Tribunal that he commenced employment with the respondent on the 10 June 2008. He was promoted to the position of paint sprayer. He did not receive terms of employment. He received payslips when he asked for them. He received a P45 from the respondent’s accountant. On the 14 June 2012 he experienced chest pains and he attended his GP. The doctor told him that he had a problem with his blood pressure, liver and that he had hypertension. The doctor told him that this was a result of his work environment. The doctor told him not to undertake any more painting work for a while. The work atmosphere was harmful, the ventilation was poor and he received no safety training. He was under pressure sometimes but not all of the time.
On the 28 June 2012 he returned to work and spoke to the respondent. He was told that he was fired. He told the respondent that he could not undertake work for a while. The respondent told him to talk to his accountant. The appellant then said it was not the respondent who told him he was dismissed, it was the respondent’s accountant. He was never given the opportunity to return to work and he was never given a warning. He obtained alternative employment a couple of weeks ago undertaking similar work.
In cross examination he stated that he had to stop painting for a while to establish if it was causing him a problem. He was able to prepare cars before they were painted. He stated that when he returned to work after being absent due to illness in June 2012 he offered to do preparatory work. The respondent told him to talk to his accountant.
Determination
Having heard all the evidence in this case the Tribunal prefers the evidence of the respondent. The Tribunal finds that the appellant was not unfairly dismissed and his appeal under the Unfair Dismissals Acts 1977 to 2007 fails. The Tribunal upholds the Recommendation of the Rights Commissioner and the appeal fails.
The respondent did not comply with section 3 (1) of the Terms of Employment (Information) Act 1994 and the Tribunal finds that the appellant is entitled to compensation of €800.00 under the Terms of Employment Information Act, 1994 and 2001. The Tribunal sets aside the recommendation of the Rights Commissioner and the appeal succeeds.
The appeal under the Payment of Wages Act, 1991 was withdrawn and the Tribunal affirms the decision of the Rights Commissioner under the Payment of Wages Act, 1991 and the appeal fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)