UD940/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIMS OF:                                                                                                 CASE NO.

Changiz Durrani                                                                                             UD940/2013

                                                             - Claimant                            

Against

Brinks (Ireland) Limited

                                                             - Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Ms. O. Madden BL

Members:       Mr. M. Carr

                        Mr. S. Mackell

heard this claim at Dublin on 24^th November 2014 

                                         and 28^th January 2015                              

Representation:

Claimant:        Dr. Zeldine O’Brien BL instructed by:

Padraig Murray, James Watters Solicitors, Richmond Office Suite,

Richmond Square, Morning Star Ave, Dublin 7 (on days of hearing since

                                                                              removed as representative

                                                                              as of 9^th February 2015)

Respondent:    Peninsula Business Services (Ireland) Limited, Unit 3, Ground Floor, Block S,

                        East Point Business Park, Dublin 3

The determination of the Tribunal was as follows:

Background:

The respondent company is involved in the security business.  The claimant was employed as a Security Officer from 29^th July 2011 until his departure on the 19^th June 2013.  He was paid a weekly wage of €220.00.

This is a case of constructive dismissal.

Claimant’s Position:

The claimant gave evidence.  He had been in employment when applying for a position with the respondent.  On the 26^th July 2011 he attended an interview with the Support manager (SK).  The claimant expressed to SK of his need to obtain more hours of work than he had currently been working for his employer at the time.  He and SK agreed to him working a 40-hour week on a permanent contract of employment.  The claimant told the Tribunal that a zero hour contract was never discussed.  He signed “a few forms” at the time of the interview.  When put to him, he agreed he had signed the respondent’s application form and the New Starter Form but had not received a copy of the terms and conditions of his employment.  SK assured him he would be supplied with a copy of it within two weeks of his interview.  He neither received it nor a copy of the company handbook.  The claimant gave two weeks’ notice to his, then, employer and commenced employment with the respondent on the 27^th July 2011. 

There were no issues working for the respondent until September / October 2011 when his hours of work were reduced.   He discussed the issue with SK who told him he would “sort it out”.  In November / December 2011 he emailed the respondent in respect of his terms and conditions of employment.    

The claimant explained to the Tribunal that at this time he was also in full-time education – 12 hours per week – and therefore was not available to work for the respondent during this time but was available to work nights.  He had not informed the respondent of these restrictions to his availability previously. 

On the 30^th December 2011 he attended a meeting with the management, he could not recall with whom, and was informed he was employed under a zero hour contract.  In December 2011 and February 2012 he met and discussed this issue with his Shop Steward and Union Representative who, in turn, contacted the respondent’s management concerning the claimant’s concerns. 

In February 2011 he attended another meeting with management where he was again informed he was employed under a zero-hour contract and was shown a copy of his terms and conditions of employment.  The claimant’s Union Representative requested a copy of it but was informed the claimant already was in possession of one.  Following this meeting the claimant’s hours reduced further.

A series of emails between the claimant’s Union Representative and management sent in August 2012 were opened to the Tribunal regarding the claimant’s terms and conditions of employment.  Further emails from December 2012 regarding the non-payment of hours worked and annual leave were also opened to the Tribunal.  An extensive email from the claimant to management regarding his treatment was read into the Tribunal’s record. 

On the 19^th June 2013 the claimant tendered his resignation by email citing his decision to leave was due to a number of reasons including the bullying, harassment and abuse he endured during his employment, the respondent’s actions and inactions which caused his post-traumatic stress and the result of this was he was now under medical care.  The respondent responded on the 21^st June 2013 inviting him to a meeting on the 5^th July 2013 to discuss the issues.  The claimant did not return to work again.

The claimant gave detailed evidence to mitigate his loss of earnings.

At this point in the hearing the Tribunal retired to discuss the claimant’s case.

Determination:

The well-established test in relation to constructive dismissal is that that actions of the employer must be such that they constitute a fundamental breach of the employment relationship, that is, a significant breach going to the root of the contract such that it allows the employee to treat themselves as discharged from further performance of the contract.

Notwithstanding the lack of corroborative medical evidence this Tribunal are not satisfied the claimant discharged the burden of proof in line with the well-established test.

Accordingly the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)