EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD992/2014
APPEAL OF:
Muhammed Abid Hussein
against the recommendation of the Rights Commissioner in the case of:
Kanes Autos Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms M. McAveety
Members: Mr M. Carr
Ms H. Henry
heard this appeal at Longford on 2nd June 2015
Representation:
Appellant:
Ms Sheila Neary, Longford Citizens Information Service,
Level One, Longford Shopping Centre, Longford
Respondent:
Mr Michael O'Sullivan, ARRA HRD,
Castlelost West, Rochfort Bridge, Co. Westmeath
Appellant’s case:
This case came before the Tribunal by way of an appeal by the employee against the recommendation of the Rights Commissioner Ref: r-141839-ud-13/JW.
The appellant was employed by the respondent from 22nd July 2002 until his employment terminated on 1st July 2013. There had been a transfer of undertakings to the respondent on 29th May 2013. The appellant’s hours and Sunday premium rate were reduced thereafter and the appellant told the Tribunal that he had not been given any work in for two weeks before 1st July 2013. Therefore he called to the head office of the respondent on 1st July 2013 whereupon he was told that there was to be no more work for him and he was given his P45. The claimant subsequently gave the employer a form from his mortgage protection company and asked that this be completed. This form was duly completed to state that the appellant had been made redundant. However the respondent later replied to a letter from the Citizens Information Service on behalf of the appellant and stated that the appellant had been dismissed for gross misconduct.
The appellant gave evidence in relation to his efforts to mitigate his loss. It was the appellant’s position that he was unfairly dismissed by the respondent.
Claimant’s case:
It was the respondent’s position that the appellant was employed continuously after the transfer of undertaking apart from one week during which the appellant was unavailable. The witness for the respondent (AK) told the Tribunal that on 1st July 2013 the appellant called to the head office and was rude and aggressive towards him. AK was told to “keep his job” and the appellant threw the keys at him.
The document in relation to mortgage protection was filled out by another witness and the reason for putting down redundancy as the reason for termination of employment was that this is what the claimant asked for and the witness did not want to prevent him from getting this payment.
AK signed the letter to the Citizens Information Service stating that the claimant was dismissed but it was his position that the job was still open to the appellant if he had apologised and amended his ways. Therefore the respondent contended that the appellant had left his employment of his own volition.
Determination:
Having carefully considered the evidence adduced at the hearing the Tribunal finds that the claimant was unfairly dismissed by the respondent.
There was conflicting evidence as to what occurred on 1st July 2013. On the one hand the claimant said that he was told there was no more work for him and on the other hand the respondent said that the claimant had left of his own volition. There was documentary evidence signed by the respondent stating that the claimant had been made redundant and there was also a letter again signed by the respondent stating that the claimant had been dismissed.
On the balance of probability the Tribunal is satisfied that the claimant was dismissed without any fair procedure. The Tribunal heard evidence in respect of the claimant’ efforts to mitigate his loss by seeking alternative employment and were not satisfied that he had made genuine efforts to find other employment.
Therefore the Tribunal upholds the decision of the Rights Commissioner reference r-141839-ud-13/JW and affirms the award of €1,320.00.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)