EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Employee - claimant UD1277/2012
MN768/2012
Against
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms V. Gates
Members: Mr M. Carr
Mr. S. O'Donnell
heard this claim at Dublin on 19th November 2013
Representation:
Claimant(s) : Mr Ciaran Benchy B.L. instructed by Mr. Andrew Sherlock,
John Sherlock & Company, Solicitors, 9-10 Main Street, Clondalkin, Dublin 22
Respondent(s) : Mr John Bolger, HR Consultant
2 Tonduff Close, Greenpark, Walkinstown, Dublin 12
The determination of the Tribunal was as follows:-
Summary of Evidence
In circumstances wherein the fact of dismissal was in dispute, the claimant gave evidence first. The claimant was employed by the respondent company as a security officer with responsibility for locking and alarming industrial and commercial premises. He was contracted to work twenty hours per week but working hours varied from time to time. Following an accident on the premises of one of the company’s clients the claimant had two days off with pay.
The claimant gave evidence that the managing director (JH) telephoned him to request that he return to work and said that if the claimant did not do so then he would not be paid. The claimant was referred by his general practitioner for physiotherapy and advised that his injury might be slow to resolve. The claimant sought legal advice and on the 10 May 2012 his solicitor wrote an initiating letter to the client company on the premises of which the injury was sustained.
On the 14 May 2012 the claimant received a telephone call from JH during the course of which the claimant was informed that JH wanted nothing further to do with the claimant and that his employment was terminated. The claimant’s partner who was present at the time of the telephone call gave evidence in support of the claimant’s version of the nature and content of the telephone call. The claimant said that he was given no explanation as to why his employment was terminated but believed that it was as a result of his solicitor’s letter of the 10 May 2012 coming to the attention of the respondent company. The claimant returned any keys which he continued to hold to the brother of JH later on the same day and about ten days later requested that the company furnish him with a P.45.
JH denied that he dismissed the claimant in the course of the telephone conversation on the 14 May 2012 or at any time. JH gave evidence that he had, rather, simply telephoned the claimant to discuss more flexible rostering and the possibility of the claimant taking on extra hours. To JH’s recollection the claimant said that he was not interested in additional hours as “he had too much to lose”. JH said that as the company had insurance to cover injuries to employees during the course of employment, it had no reason to dismiss the claimant. JH could not recall who had covered the claimant’s shifts and could not recall why the claimant had not returned to work and gave evidence of not being aware of any letter sent by the claimant’s solicitor to a client. He said that the first time that he had sight of the letter dated the 10 May 2012 was on the hearing date.
Determination
In this case there was a considerable conflict of evidence as to the content and effect of the telephone call between the parties which took place on the 14 May 2012. Having considered carefully the evidence of both parties, the Tribunal accepts the evidence of the claimant that he was in fact dismissed during the course of the telephone call from the managing director of the respondent company.
Accordingly, the Tribunal finds that the claimant was unfairly dismissed from employment without notice and awards the claimant the sum of €11,000.00 for loss pursuant to the Unfair Dismissals Acts, 1977 to 2007 and €215.00 in lieu of one weeks’ gross pay under the Minimum notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)