UD709/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                               CASE NO.

Martin Murga,            -           claimant                                                                      UD709/2012

Against

GD Food Limited T/A Subway,         -           respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr N. Russell

Members:        Mr J. Browne

                        Mr F. Dorgan

heard this claim at Waterford on 3rd April 2014

Representation:

_______________

Claimant:         In Person

Respondent:    In Person

Determination

The claimant’s case before the Tribunal is that he was unfairly dismissed in circumstances which he believed were connected with some missing monies at his workplace some days earlier. The respondent advised the Tribunal at the outset that the claimant’s dismissal was not in any way associated with that incident and that he was dismissed by way of redundancy. On being questioned by the Tribunal, Mr GD, Director of the respondent company, confirmed that the claimant was not given statutory notice and was not paid in lieu of notice.

Where the fact of the dismissal, as in this case is not in dispute, the onus is on the respondent to satisfy the Tribunal that the dismissal is fair. On the basis of the evidence given by the two witnesses for the respondent company the Tribunal is of the opinion that the respondent failed to meet this onus.

It is abundantly clear from the evidence given by the respondent witnesses to the Tribunal that the employer had issues of performance with the claimant and, further, had issues with his attitude in the workplace. However, no reliable evidence was given to the Tribunal of adherence by the employer to any procedures in respect of any such issues.

Instead, the claimant was summarily dismissed and advised that the reason for this dismissal was a decline in business. The Tribunal is satisfied that, while they may have been a contemporaneous need to look at staffing levels, the reason given to the claimant for his dismissal was not the true reason for the termination of his employment.

There were clearly issues in the workplace between the store manager and the claimant in particular. Indeed, Mr GD informed the Tribunal that there has been a “breakdown in communications” between the Claimant and his manager. However, no proper procedures were followed by the respondent to address any such issues.

Mr GD informed the Tribunal that as he saw it, his choices in dealing with the claimant was to either go down the disciplinary route or to make the claimant redundant relying on the decline in business. Using the umbrella of redundancy to essentially truncate proper disciplinary procedures is not an acceptable practice.

The absence of statutory notice to the claimant also significantly undermines the position adopted by the respondent in that the Claimant was dismissed by way of Redundancy. Non-payment of notice is far more consistent with a summary dismissal.

The Claimant gave uncontested evidence to the Tribunal that he was out of work for in or about two months and thereafter took a position as a Chef and has remained in employment since.

It is the Tribunal’s Determination that the claimant was unfairly dismissed. The Tribunal awards the claimant compensation in the sum of €1,650.00.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)