UD26/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                               CASE NO.

EMPLOYEE     - appellant                                                                            UD26/2013

against the recommendation of the Rights Commissioner in the case of:

EMPLOYER  - respondent no. 1

EMPLOYER  - respondent no. 2

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. M. Levey B.L.

Members:     Mr F. Cunneen

                    Mr S. Mackell

heard this appeal at Dublin on 17th February 2014.

Representation:

Appellant:       Mr. Shane Kelly BL., instructed by Mr Eamonn O'Hanrahan, O'Hanrahan & Co,               Solicitors, Lexington House, 71 Ballybough Road, Fairview, Dublin 3

Respondent:    REP -  For respondent no. 2

This case came before the Tribunal by way of the appellant (the employee) appealing against the Recommendation of the Rights Commissioner reference ref.r-121920-ud-12/JW and ref. r-121917-ud-12/JW.

At the outset of the hearing the appeal against respondent no. 1 was withdrawn.

The determination of the Tribunal was as follows:-

Appellant’s Case:

Respondent no. 2 is an employment agency and places employees with clients. The appellant applied to the agency for work in 10 March 2008 and worked for several clients of the agency from March 2008 until 16^th December 2011. He had a good relationship with the agency. The claimant was involved in a workplace accident in or about 28^th March 2011 that resulted him in sustaining personal injuries. He was certified unfit for work for approximately three weeks and then returned to work. He believed his relationship with the agency deteriorated after that.

After a few months he saw a surgeon who diagnosed he had a broken bone in his foot and he instructed a solicitor to act on his behalf in relation to the injuries he sustained in the workplace accident with a view to making a claim in that regard.

In mid-December 2011 he asked permission from the agency to return home to Poland for Christmas. He went home on 16^th December 2011.   He returned to Ireland in around 16^th January 2012 and contacted the respondent on several occasions and enquired about available work. He was constantly being told that no work was available. At the end of January 2012 he contacted the agency seeking a letter for social welfare purposes. The agency furnished him with the appropriate paperwork.

The appellant was offered work by the agency on 8 May 2012. He sought further clarification on the role. He understood the reason he was offered work was because the respondent had received notice of a complaint made by him in April 2012 to the Rights Commissioner Service.   He did not contact the respondent again.

The appellant understood he was dismissed from his employment on 16 December 2011. He was not furnished with a P45.

The appellant has not secured alternative employment since the termination of his employment. .

Respondent’s Case:

Respondent No. 2 is an employment agency and SC is Managing Director. The agency mainly supplies temporary labour within the warehousing and distribution market.   The appellant was placed on temporary assignments in the period March 2008 to mid-December 2011. The agency advises employees to keep in contact with them with a view to securing temporary work.

From the end of October 2011 to 16^th December 2011 the appellant worked on an assignment with company VF. On that day he informed the agency that he had to return to Poland for family reasons.

On 17^th January 2012 the appellant contacted the agency seeking a letter for social welfare purposes. On 8^th May 2012 the agency contacted him with an offer of work. The appellant sought further clarification on the role. The agency supplied the relevant information to him. The appellant did not contact the agency again.

The appellant was not dismissed from his employment.

Determination:

Having heard evidence from both parties the Tribunal is satisfied that the appellant left his employment on 16^th December 2011 to return to Poland without giving notice as to when he would be returning.

In the circumstances, the Tribunal is satisfied that the appellant was not unfairly dismissed and upholds the Recommendation of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)