UD1381/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                    CASE NO.

Ernestas Janecka                                                                                           UD1381/2013

-claimant

against

Hester Sofia Black T/A Spar Cherrywood Park

-respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Ms M.  Levey B.L.

Members:       Mr. D.  Peakin

Ms E.  Brezina

heard this claim at Dublin on 14th November 2014

Representation:

Claimant:  Mr. John Scott BL instructed by Mr. Niall Bass, Keans, Solicitors,

 2 Upper Pembroke Street, Dublin 2

Respondent:  Mr. Pat Brady, 56 St Columbanus

                    Avenue, Milltown, Dublin 6

Background:

Dismissal is in dispute in this case.  The respondent is a general shop/newsagent.  The claimant worked there as a general operative.  He worked Sundays and Mondays.  The claimant contends that he arrived into work on the morning of his dismissal 16^th June 2013 and was told that there were no more hours available in the shop for him.  He was shocked and left the shop.   The respondent contends that the claimant’s new line manager told the claimant (on 16^th June 2013) that he was not required for work for Monday 17^th June because a new key holder was to be trained on that day.  The new key holder was to replace the new line manager’s old position. The claimant was paid for Monday 17^th June even though he did not work on 17^th June.  The claimant was put on the rota as usual but he did not turn up for work.

Claimant’s case:

The Tribunal heard evidence from the claimant.  He worked as a sales assistant.  He was in work (Sunday 16^th June 2013) and checked the work rota and did not see his name on the rota.  The new rota was normally posted on a Sunday.  He also noticed that there were four new employee names on the rota.  He was shocked so he went to speak to his new line manager.  VR told him that he (the claimant) would have to speak to the owner (HB).   He called into the shop on Monday 16^th and spoke to HB in her office.  He asked her why he was not on the roster.  She asked him if he was on part time hours and he told her that he was.  She then told him that there were no more hours for him because they had to cut the wage costs.  She also told him that another reason was because he worked too slowly.  He then asked her if he was not working in the shop anymore and she said “Yes”.  She told him that his final pay would be ready for him the following week to include holiday pay etc. 

He had never received a verbal warning or a written warning.  He had never before come to the attention of his employer in a negative manner. 

The claimant told the Tribunal that he was phoned by the respondent at some point after this and he was offered work but that he could not work there because of the treatment he received.

The claimant gave evidence as to his loss.

In cross-examination it was put to the claimant that VR told him the reason that he was not on the rota was because he (VR) was training a new key holder, the claimant replied that VR told him to speak with HB.  It was put to him that VR phone him to confirm that he was on the rota for the next week i.e. Sunday/Monday and the claimant replied that HB told him that he was not on the rota. 

Respondent’s case:

The Tribunal heard evidence from VR.  He explained that the week in question was his first week as manager.   He had never drafted a rota before.  The claimant looked at the rota on Sunday evening as he was leaving to go home.  The claimant asked him why he was not on the rota and he explained that it was because he had to train in a new key holder.   The claimant told him that he was going to speak with HB.  

He had omitted to put the claimant on the rota for the following weekend but this was because he made a mistake as he deleted a line on the rota in error.   The claimant was only supposed to be off the rota for one day. 

He sent a text to the claimant and the claimant replied by text to say that he did not want to come back to work and that he had spoken to HB and did not want to repeat it again.  The claimant asked for his p45 and outstanding pay.

The Tribunal heard evidence from HB.  She explained that the manager left the business with only 24 hour’s notice and that VR was next in line to be manager.  VR mistakenly deleted part of the roster. 

The claimant entered the office and the spoke.  She did tell him that VR was a new manager and that VR and she would have to review the rota so that they could familiarise themselves with the rota.   She did tell the claimant that she was busy, “In the middle of balancing the cash”.  She did tell the claimant that he had erred in credit card transactions. She did reprimand him regarding cleaning duties and cash transactions.  She told the claimant that VR was the new manager and to see VR and if he then still had a problem to see her.  She did not mention anything about hours to the claimant or say that he would not be working any more hours.   She has not in 12 years of business sacked anyone. 

Sometime  after the 17^th June she was on the shop floor and the claimant walked in and handed her his work uniform.  He said to her “You fired me”.  She replied that she had not and that he was on the rota.  Other words were exchanged and the claimant left.

 Afterwards she thought about the matter and went to see the rota.  She realised what had happened.  There were errors on the rota in that some employees names had been removed and there was a line deleted. She made a new rota.   She spoke to VR and explained to leave the employees names on the rota even if they do not work regularly every week.  She also sent VR on a communications course.

She told the Tribunal that the error was a typo clerical error and that VR was not a malicious type.   VR would not dismiss an employee.  It is solely up to her to dismiss an employee and is not her way of doing things.

Determination:

The Tribunal, having heard the evidence adduced, determine that the claimant was not unfairly dismissed.   The Tribunal accepts that the manager was new and that he did make a mistake in that he omitted to put the claimant on the rota for the following weekend.  This was because he had deleted a line on the rota in error.  The claimant was only supposed to be off the rota for one day while the key holder was being trained and he was paid for that day.  The claimant was offered work or was informed that he was due to be in work but he refused the offer.  The claim under the Unfair Dismissals Acts, 1977 to 2007, fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)