UD1684/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                               CASE NO.

Roberto Suba                                                                                                              UD1684/2013

-        Claimant

against

Maybin Support Services Limited T/A Momentum Support

-        Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr. C. Corcoran BL

Members:       Mr F. Cunneen

                        Mr P Trehy

heard this appeal at Dublin on 15^th September 2014.

Representation:

Claimant:        Migrant Rights Centre Ireland, 37, Dame Street, Dublin 2

Respondent:    Bill Austin, IBEC, 84-86, Lower Baggot Street, Dublin 2

The decision of the Tribunal was as follows:

Background:

The claimant was employed as a cleaning operative. He commenced employment with his previous employer (I) in January 2001 and worked in a hospital in west Dublin. In 2008 the respondent took over the cleaning contract and following a transfer of undertakings the claimant remained working in the same location and under the same terms and conditions.

In March 2012 the hospital informed the respondent company that there had to be a 16.5% cut in costs and hours supplied. Management met with their staff members and the union – SIPTU. An agreement was made. The claimant was absent from work during this time. He was on annual leave from March 24^th and due to return on the 24^th April but did not return until the 14^th May 2012.

On the claimant’s return he was informed his hours were to be reduced to 21.5 hours per week in the hospital.

The claimant lodged a complaint with the Labour Relations Commission under the Organisation of Working Time Act, 1997. Meetings between the claimant and the respondent took place on the 23^rd July, the 8^th August and the 16^th August 2012 to discuss his grievances. A letter dated the 21^st August 2012 was sent to the claimant regarding his grievances and three options were given to him:

1. An offer to move to another hospital in Dublin 8 under the same terms and conditions and in a full time position
2. He continue to work in the same hospital at a rate of €12.75 per hour for the reduced hours and should any additional hours become available he would be offered them at the standard ERA rate of €9.50 per hour as the company had to meet the cost requirements of the client.
3. He work his full complement of contractual hours in a comparable role in the Dublin 8 hospital at the rate of €9.50 per hour and the company would buy-out his higher rate of pay €12.75 per hour at an agreed buy-out rate.

The claimant did not accept any of the proposals and opted to remain working where he was at the rate of €12.75 for 21.5 hours per week.

Management continued to have talks with the claimant in November and December. The claimant lodged other complaints before the Rights Commissioner under the Payment of Wages Act, 1991 and the Industrial Relations Acts, 1969 to 2001. A determination was issued and the company wrote to the claimant to discuss the matter. It was agreed a telephone call would take place between the claimant’s representative and the company. The claimant was seeking back pay for all the hours that had been reduced.

On the 30^th July 2012 the claimant emailed the company stating that having spoken to his representative it appeared the company were not changing their position with regard to the situation and there was no point in going forward.

On the 7^th August 2012 the claimant gave a letter of resignation to a colleague to be handed into the company offices. The claimant’s Supervisor tried to contact the claimant to discuss the matter but could not but was later advised by his son that he, the claimant, had left the country.

Respondent’s Position:

The respondent’s witnesses stated that they felt done all they could to assist the claimant.

Claimant’s Position:

The claimant stated he had no alternative but to leave. He gave evidence of loss

Determination:

On the evidence as adduced the Tribunal are of the view the claimant has not discharged the onus of proof in order to establish he had been constructively dismissed. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

               (CHAIRMAN)