EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Kevin Birkett,-claimant
against
Ocean And General Maritime Agencies Limited,
-respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K. T. O'Mahony B.L.
Members: Mr. P. Casey
heard this claim at Cork on 15th September 2014
Representation:
Claimant: Mr. Hugh Hegarty, Siptu, Misc, Liberty Hall, Dublin 1
Respondent: No appearance or representation
The determination of the Tribunal is as follows:-
There was no appearance for or on behalf of the respondent. The Tribunal is satisfied that due notification was sent to the respondent. Accordingly, the Tribunal heard the uncontested evidence of the claimant.
Claimant’s Case:
The claimant commenced working for the respondent on 12 August 2011 on a part-time basis as an operations assistant. On 1 November 2012 his doctor put him on certified sick leave on grounds that he was suffering from work-related stress. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007, succeeds. He contacted the managing director on 7 January 2013 to discuss the source of his work-related stress but MD would not meet him and instructed him to contact the company doctor when he was fit to return to work, which he did. The claimant was certified fit to return to work on or around 26 February 2013 by both doctors.
In an e-mail dated 1 March 2013 the managing director (MD) informed him that since he had gone on sick leave that the work he had been employed to do had changed and now involves a new software system and an increase in the workload to a five-day week and proposed an interview with another director of the company (OD) on 12 March 2012 if he was interested in the new position. In his e-mail dated 1 March 2013, the claimant replied that he was happy to work full-time in the “enhanced position” and to discuss the position with OD at the proposed meeting. In his reply of even date MD clarified to the claimant that his position had been made redundant and confirmed that OD would meet him on 4 March 2013 to discuss his suitability for the new position.
Despite their differences as to the status ofthe claimant’s employment the claimant attended the meeting/interview on 4 March 2013. In an e-mail dated 12 March 2013 MD informed the claimant that he was unsuccessful in the interview, mainly due to the respondent’s business needs, the training that would be required so that he could fulfil the role and that another candidate was more suitable.
The claimant did not have the service to entitle him to a redundancy payment and declined to accept an ex gratia payment of four weeks’ salary subject to his signing a full and final compromise agreement. The evidence of OD, who was no longer a director or employee of the respondent at the time of the hearing, was that the position had already been filled at the time of the purported interview and that he had been coached to make it look like an interview.
Determination
The Tribunal is satisfied that the respondent was properly on notice of the hearing. Based on the uncontroverted evidence of the claimant the Tribunal finds that the claimant was dismissed. As the respondent failed to appear and discharge the onus of proof that rests on the employer under s.6 (6) of the Unfair Dismissal Acts the Tribunal, in applying s.6 (1) of the Acts, deems the dismissal to be unfair. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds. The Tribunal determines that compensation is the appropriate remedy. Having heard evidence of loss the Tribunal awards the claimant compensation in the sum of €12,250.00 under the Acts
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)