EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
EMPLOYEE -claimant UD1473/2011
MN1553/2011
Against
EMPLOYER -respondent
EMPLOYER -respondent
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: Mr D. Hayes B.L.
Members: Mr M. Murphy
Mr N. Dowling
heard this claim at Trim on 27th September 2012
Representation:
_______________
Claimant: Colm Murphy & Co, Solicitors, Unit 13a, Main Street, Ongar, Dublin 15
Respondent: In Person
Preliminary Issue
Respondent’s Case
The respondent made the application that the claimant does not have the required service to take a claim under the Unfair Dismissals Acts, 1973 to 2007.
The respondent business is a wedding and events venue that commenced trading in May 2009. It was always the intention to use contracted catering and bar services. The respondent engaged M.E. catering services for events which provided the claimant (who said he was a private contractor trading as C.S.) as bar staff. In August 2009 M.E. catering got into financial difficulties so ceased trading. From August 2009 the respondent engaged the claimant’s services to provide bar staff. There was no formal contract in place between the claimant and the respondent. The respondent repeatedly requested invoices from the claimant for the services he provided to the respondent. To ensure the claimant’s staff were legitimate the respondent requested their PPS numbers from the claimant. There were 14 events held in the venue to the 31st of December 2009; the claimant’s services were not engaged for all of those events. The claimant worked on the same basis for other venues and was therefore not always available. The respondent provided a letter from a contractor stating that they engaged the claimant’s company to provide bar services/staff.
There was a supervisor rate of pay of €15.00 which the claimant was on; this reduced to €12.50 when he became a direct employee, as the respondent was now liable for statutory employer contributions. Due to the difficulty in getting invoices from the claimant the respondent made the decision to employ the claimant and his staff directly from the 1st of January 2010. Prior to this the claimant e-mailed the respondent with the hours worked of each of the staff. The claimant worked as a direct employee until the 17th of August 2010. Therefore the claimant does not have the required service to take a claim.
A number of employees of the respondent gave evidence to say they believed the claimant was their ‘boss’ as he paid them their wages at the end of the night.
Claimant’s Case
The claimant commenced working for the respondent in May 2009. He initially worked as bar staff with the catering company but the respondent ‘took the bar back.’ The claimant was approached and asked to manage the bar by the respondent; he agreed. At the end of the first night worked at the venue the respondent asked the claimant to calculate the hours worked of all the bar staff. The respondent then compiled all the staff wages and the claimant, as manager, passed the wages on. The claimant sent an e-mail to the respondent confirming the rates of pay for both the claimant, the bar staff and the lounge staff. As the result of an e-mail from the respondent requesting the staff’s PPS numbers, the claimant was led to believe that as the respondent was newly formed all of the paperwork i.e. tax and P.R.S.I. deductions would be ‘sorted out later.’
The trading name the respondent believes the claimant was using was not registered until 2010. The claimant was working for other venues as a part-time direct employee and can provide payslips received for those venues. The claimant submitted his PPS number to the respondent in September 2009 and always believed he was a direct employee. The claimant disputes that he was ever requested to produce invoices. At the end of 2010 the claimant, through his company provided staff to the contractor as mentioned in the respondent’s evidence.
Preliminary Determination
The respondent has not satisfied the Tribunal that the claimant was not an employee. The Tribunal therefore accept jurisdiction to hear this case.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)
EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE -claimant UD1473/2011
MN1553/2011
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: Mr D. Hayes B.L.
Members: Mr D. Moore
Mr N. Dowling
heard this claim at Dublin on 4th September 2013
Representation:
Claimant: Colm Murphy & Co, Solicitors, Unit 13a, Main Street, Ongar, Dublin 15
Respondent: A director of the company
Background:
A preliminary determination issued in this case dated 20th February 2013.
Substantive Issue:
Dismissal as a fact was in dispute between the parties.
It was the claimant’s evidence that he was initially employed by a catering company to work in the bar of the respondent’s premises. Subsequently, the respondent began to operate the bar and the claimant was asked by a director of the company (VC) to work in the bar. The claimant’s role was that of bar supervisor and his duties included rostering staff, stock control, wages, performing till reads and other duties associated with operating a bar. The claimant stated that the majority of his interactions were with the Bar Manager (PM).
On the 14th August 2010 the claimant was working and a wedding function was taking place. The claimant recalled that the till was broken in the area used for holding pre-reception drinks. As a result he had to put through a number of transactions on the function room till. There was a number of other individuals working that night including a new manager (JR). The claimant left work early that night as he felt ill.
The following day, on Sunday 15th August 2010 he received a text message from the General Manager (PM) who asked the claimant to telephone him and explain the till discrepancies from the night before. The text message further stated,
“Please consider your situation carefully as what you say to me will determine the course of actions which I take.”
The claimant telephoned PM who queried why there was a cash/till discrepancy. The till was up compared to the cash on hand. The claimant explained that he had not cashed up at the end of the night.
A meeting was arranged for Wednesday, 18th August 2010. The claimant met with the Bar Manager who again asked the claimant to explain the discrepancy but would not tell him the amount of the discrepancy. The claimant asked to see the till rolls but the Bar Manager refused. The Bar Manager told the claimant there were “stories” about him but he would not tell the claimant the content of the stories or complaints. The Bar Manager informed the claimant that he was going to investigate the matter and get the authorities involved which the claimant welcomed. The Bar Manager said he was not insinuating anything but that he did not want the claimant working there anymore. Having been told this the claimant requested his wages and holiday pay but this was refused.
Following this meeting the claimant contacted a solicitor who wrote a letter dated 19th August on his behalf but to which no response was received. The claimant was not told whether or not an investigation was ever concluded nor was he asked to partake in an investigation process.
In reply to questions from the Tribunal the claimant stated that if he was not present at the end of a shift another senior person was responsible for performing the till read and counting the cash. On the 14th August 2010, the new manager JR was the senior person responsible when the claimant departed.
It was the respondent’s case that the Bar Manager was not available to give evidence on the day of the hearing. The respondent sought an adjournment of the case to a further date to allow the witness to give evidence. The respondent had a written statement from this witness which it sought to open to the Tribunal. This was objected to by the claimant’s representative.
After consideration of these arguments the Tribunal requested to read the statement of the Bar Manager. Having done so, the respondent was asked to indicate whether or not it agreed that the content of the Bar Manager’s statement was not materially different from the evidence of the claimant.
The respondent accepted this to be the case but only to the point where it was the claimant’s evidence that a dismissal had occurred. The respondent stated that the Bar Manager was also an experienced general manager who had worked nationally and internationally in such roles and that other members of staff had made approaches regarding the claimant’s behaviour concerning till practices. Prior to concluding an investigation the respondent had received the letter from the claimant’s solicitor.
The Tribunal informed the parties that it was refusing the application to adjourn the case to a further date.
Determination:
At a previous hearing in relation to the preliminary issue of whether the claimant had been an employee of the respondent, and therefore whether the Tribunal had jurisdiction to hear the case, the Tribunal determined that the claimant was an employee. That determination on a preliminary issue was not appealed and the matter came back to the Tribunal for further hearing of the substantive issue.
The claimant was working at the respondent’s premises on 14th August 2010 as a bar supervisor. A wedding reception was being hosted there that day. He left before his shift ended. When the day’s bar takings were being reconciled it was noticed that there was a discrepancy. The next day he received a text message from PM, the general manger, in the following terms:
“I need you to call me and explain the discrepancies found last night. Please consider your situation carefully as what you say to me will determine the course of action which I take.”
A meeting was held on 18th August 2010 in the course of which PM declined to tell the claimant what the discrepancy was or allow him to look at the till rolls. PM made reference to there being “stories” about the claimant but he did not elaborate. PM said that he would further investigate the matter but that he did not want he claimant working there any more. This was the last dealing that the claimant had with anyone from the respondent.
No witnesses were adduced on the respondent’s behalf. The respondent sought an adjournment of the hearing so that arrangements could be made for witnesses to attend. This application was objected to by the claimant. The respondent sought to introduce two written statements made by Pm and by JR, the bar manager. This, too, was objected to by the claimant on the basis that he would be unable to cross-examine or in any way test the evidence. The Tribunal, having considered the statements, decided that, even if both witnesses were to attend and give evidence along the lines of their written statements, there would be no material affect on the Tribunal’s determination. In material respects, the evidence that it was indicated that they intended to give, was not in disagreement with the evidence given by the claimant. As the application was made at the very late stage in the course of the hearing and as the Tribunal considered that their evidence would not affect the Tribunal’s determination, the Tribunal did not accede to the application for an adjournment.
It was clear from the evidence that the claimant was not informed of the substance of any allegations being made against him. He was not told the amount of the discrepancy and he was not permitted to examine the till rolls. He was not, therefore, in a position to counter in any meaningful way the allegations being made. It must be noted that any allegations were made mostly by way of innuendo. While it is clear that an investigation commenced, it does not appear ever to have finished and certainly no disciplinary process was commenced. The Tribunal is satisfied that the claimant was told that he would not work for the respondent again and that thereafter he was simply never rostered for work or contacted in any way. The Tribunal is satisfied that he was dismissed. Further, the Tribunal is satisfied that this was not so much a case of unfair procedure as one with an absence of any procedure whatsoever.
While the Tribunal did not treat it as evidence, it does note that PM’s statement indicates that he told the claimant that his position was untenable and that the claimant was never again rostered for work or contacted.
It was never made clear to the Tribunal, other than by way of innuendo, what the accusation made in relation to the claimant actually was. This is consistent with the import of the claimant’s evidence that he himself was never told. It was not in any way clear to the Tribunal that the respondent had ever established any evidence to substantiate the unspoken allegation. There was, of course, no evidence of this but such a suggestion was not even made by the respondent in its oral submissions nor in the unsworn statements furnished.
The Tribunal is satisfied that, by reason of unfair procedures and by reason of not being satisfied that any reason existed as would cause a reasonable employer to dismiss the claimant, the claimant was unfairly dismissed.
The Tribunal finds the appropriate award is compensation and, pursuant to the Unfair Dismissals Acts, 1977 to 2007, awards the sum of €8,500 as being just and equitable in the circumstances. In addition the Tribunal finds that the claimant is entitled to one week’s gross wages in lieu of notice and awards the claimant the sum of €392.00 under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)