EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD753/2014
CLAIM OF:
Philip Lynch
against
C.Clifford & Sons Limited
t/a Gala Mounthawk
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 D. Hegarty
Mr D. McEvoy
heard this claim at Killarney on 22nd May 2015
Representation:
Claimant : Mr Stephen O’Halloran B L instructed by
Ms Diane Reidy, Edward O'Sullivan Solicitors, 7 Ashe Street, Tralee, Co Kerry
Respondent : Downing Courtney & Larkin, Solicitors, 84 New Street, Killarney, Co Kerry
The determination of the Tribunal was as follows:
Prelininary Issue
The respondent contentded that the Tribunal had no jurisdiction to hear this case as the claimant did not have one year’s continuous service with the company.
Summary of Evidence on the Preliminary Issue
The claimant commenced employment with the respondent in April 2010.
The respondent’s position was that the claimant resigned from his employment with it on around the end of May 2013 when he left to spend three months working under a J1 visa in the US. He had informed the manager about one and a half weeks prior to his examinations of his intentions. However, he returned to Ireland, earlier than planned, in late July 2013 and sought work. As he had been a good worker, the manager re-employed him from around 1 August 2013. The manager denied the claimant’s assertion that there had been an agreement, prior to his leaving for the US, that America that his job would be kept for him. Had the claimant not terminated his employment the respondent would not have issued his P45 in July 2013, at his mother’s request. The date of cessation of his employment shown on his P45 was 5 July 2013.
The claimant’s position was that in summer 2013 he was finishing his second last year of a full-time business course at the Tralee Institute of Technology. Since April 2010 he had been working with the respondent and his weekly earnings varied between €140 and €180 per week. This income assisted him in financing his studies, including inter alia paying his fees and buying his books, and other activities and was badly needed and much appreciated.
In March or April 2013 he informed the manager of his plan to get a J1 visa and work in America for three months and the manager assured him that his job would be there for him on his return; he would not have gone to the US if his job would not be available on his return. On his early return in late July, having called to the store, he resumed his employment, on the same job, on the same hours and conditions.
The claimant did not ask his mother to get his P45 and was unaware the she had requested it. . He did not need it in the US. On most weekends he also had some hours in the Greyhound Track.
Determination on the Preliminary Issue
The Tribunal finds, on the balance of probability, that there had been an agreement that the claimant’s job would be there for him on his return from the US. The claimant needed the money to finance his final year of study. Had he not the comfort of this agreement he would not in all probabitity have left his job in America in July earlier than planned or at the least would have probably enquired before leaving that job whether hours would be available in the respondent. The Tribunal is not ignoring the fact that the claimant’s mother sought his P45 but notes that there can many reasons for seeking a P45. Accordingly, the Tribunal finds that there was not a resignation at the end of May 2013 and since the agreed absence was for less than 26 weeks it does not break his service.
Substantive Case
The respondent offered no evidence on the substantive issue.
The claimant’s position was that he worked his shift on 29 October 2013, was free on 30 October to attend his sister’s graduation and was next scheduled to work from 08.30 to 12.30 on 31 October. However, while at his sister’s graduation on 30 October, he took a phone call late in the afternoon from his supervisor and declined her invitation to work extra hours (1.30 pm -5.30 pm) on 31 October on the grounds that he had final year projects to do and it was too short notice as he needed to study for his upcoming examinations. As requested, he contacted the store manager, who told him in clear and unambiguous terms that he either work those extra hours or face being fired. His name was removed from the roster. He tried to contact the manager but she did not answer his calls or call back later.
Determination on Substantive Issue
Based on the uncontroverted evidence of the claimant the Tribunal finds that the claimant was dismissed on 30 0ctober 2013. As the respondent failed to offer any evidence to discharge the onus of proof that rests on the employer under s.6 (6) of the Unfair Dismissal Acts1977 to 2007 to show that the dismissal was fair, the Tribunal, applying section 6 (1) of the Acts, deems the dismissal unfair. Accordingly, the claim under the Acts, 1977 to 2007 succeeds. Having heard evidence of loss the Tribunal awards the claimant the sum of €4,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)