EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD292/2014
PW269/2014
TE111/2014
WT212/2014
EMPLOYEE:
Bogdan Lapuste -employee
Against
GCD Cafe Limited T/A Gourmet Café -employer
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
ORGANISATION OF WORKING TIME ACT 1997
PAYMENT OF WAGES ACT 1991
TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 TO 2001
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. MacCarthy S.C.
Members: Ms A. Gaule
Mr C. Ryan
heard this claim at Dublin on 30th April 2015
Representation:
Employee: Mr. Mark O’Connell B.L. instructed by Mr Barry Kenny, Kenny Sullivan, Solicitors, Market Court, Town Hall, Bray, Co. Wicklow
Employer: No appearance or representation on behalf of the employer.
Background:
The claim under the Unfair Dismissals Acts came before the Tribunal by way of a direct claim.
The appeals under the Organisation of Working Time Act 1997, the Payment of Wages Act, 1991 and the Terms of Employment (Information) Act 1994 and 2001 came before the Tribunal by way of the employee appealing against the Rights Commissioner Decision under references: r-139635-wt-13/JT, r-143140-pw-14/JT & r-143141-te-14/JT).
The respondent was duly notified of the hearing to its registered office. Neither the respondent company nor a representative on its behalf attended the hearing.
Summary:
It was the employee’s uncontested evidence that his employment with the respondent commenced in January 2011 and he enjoyed a good working relationship with his employer during that year. The employee did not receive a contract of employment however despite making repeated requests for this document over the next three years.
When the employee worked public holidays he did not receive payment for this work despite requesting payment from his employer. The employer assured the employee that he would receive payment at some future time. However, when payment for the public holidays did not transpire the employee lodged an initial claim with the Rights Commissioners’ service in October 2013 seeking payment for holiday pay and public holidays he had worked. The employee failed to appear for the hearing allocated to the claim most likely due to a change of address in the intervening period. He subsequently appealed to the Labour Court. A decision was made by the Labour Court in the absence of the employee who had failed to appear on the date.
The employee had received a warning letter in August 2013 but otherwise his employment was without incident. However, from the time that he lodged his claim for pay in relation to holidays and public holidays, the employer and his wife began to shout at him for no reason. Although the employee had a back problem he was instructed by the employer to lift heavy bags, a duty usually carried out by the kitchen porter. The hours worked by the employee were no longer maintained by the employer who fluctuated them without notice or discussion with the employee.
On 6 February 2014 the employee received a further warning letter regarding his refusal to wash dishes in his workplace despite the fact that he was employed as a chef. The employee believed that the employer was trying to punish him and he requested to return to the duties associated with his role as chef. Later that day he was issued with the warning letter regarding his refusal to wash dishes. Following the receipt of this warning the employee sought legal advice in relation to the employment situation and a letter issued to the employer. Ultimately, the employer removed the employee from the roster stating that he could not return until he had attended a doctor. The employee did not return to the employment from that time.
The employee outlined the number of public holidays for which he had not received payment. In addition the employee sought his outstanding entitlements of annual leave having only been paid two weeks of annual leave per year.
The employee provided the Tribunal with evidence of his loss and his efforts to mitigate that loss which included securing new employment three months later at the same rate of pay.
Determination:
The Tribunal is satisfied from the uncontested evidence of the employee that he was constructively dismissed from his employment due to the conduct of the employer. Accordingly, the Tribunal awards the employee compensation in the sum of €4,000 under the Unfair Dismissals Acts, 1977 to 2007.
The Tribunal awards the employee the sum of €1,026 for public holiday pay outstanding for the 18 months prior to the end of employment. In addition the Tribunal awards the employee a further sum of €1,140 (being the equivalent of three weeks’ gross pay) in relation to annual leave entitlements outstanding for the previous 18 months prior to the end of the employment under the Organisation of Working Time Act, 1997. The Tribunal therefore upsets the Rights Commissioner Decision (reference: r-139635-wt-13/JT).
The Tribunal also upsets the Rights Commissioner Decision (reference: r-143140-pw-14/JT) by awarding the employee the sum of €380 under the Payment of Wages Act, 1991.
The Tribunal awards the employee €1,520 under the Terms of Employment Acts, 1994 and 2001 as the employer failed to provide him with a contract of employment despite repeated requests. The Tribunal therefore upsets the Rights Commissioner Decision (reference: r-143141-te-14/JT).
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)