EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD159/2014
CLAIM(S) OF:
Loreta Gervinskiene
- Claimant
Against
Denis Quinn T/A Take Five Fast Food
- Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr. J. Browne
Mr. D. McEvoy
heard this claim at Thurles on 1st May 2015
Representation:
Claimant: Elizaveta Donnery, Donnery & Co., Solicitors, 57 Clontarf Road, Clontarf,
Dublin 3
Respondent: Flanagan & Co., Solicitors, 5, O’Rahilly Street, Nenagh, Co. Tipperary
The determination of the Tribunal was as follows:-
Background:
The claimant was employed as a counter assistant in the respondent’s fast food takeaway alongside two other members of staff – the respondent’s witness (AA) and one other. The respondent did not attend daily at the premises. The three member of staff organised their staff rosters and annual leave between them. All annual leave which each staff member wished to avail of was entered on a calendar displayed in the premises.
In early 2013 a NERA inspector attended the respondent’s premises and a finding was submitted. In September 2013 the claimant approached the respondent and requested a loan of €600 of which she received. In December 2013 the claimant took 3 weeks annual leave to visit her home country. On her return in January 2014 she was dismissed.
Respondent’s Case:
At the outset the respondent conceded that proper procedures were not carried out when he dismissed the claimant.
The owner of the respondent business and an employee and former colleague (AA) gave evidence on behalf of the respondent.
The respondent contended that the claimant had not informed him when requesting a loan of money that this was for a flight home to her home country for the Christmas period. He only became aware of this when, in late November, the claimant’s two colleagues contacted him to complain she, the claimant, was taking three weeks leave over Christmas.
He spoke to the claimant of the unfairness towards her colleagues of her intention to take this time off and the fact that the details of this leave had not been entered on the calendar as was usual. The respondent told the Tribunal that the claimant had already taken paid annual leave earlier that year. He told her he would talk to her again on her return from her leave.
However, during this time he reviewed the situation and considering previous verbal warnings she had received in the past and considering the issue at hand he made the decision to dismiss the claimant. A letter dated the 5th January was sent to her home address.
On cross-examination he said that his decision to dismiss had nothing to do with the fact NERA had inspected the premises in early 2013.
AA gave evidence. The claimant had informed her in September that she was taking three weeks leave over the following Christmas and New Year period. No such enteries were displayed on the leave calendar. She told the claimant she was not happy and neither was her colleague. They voiced their complaint to the respondent.
Claimant’s Case:
The claimant gave evidence. She had informed NERA of irregularities in the respondent’s business and an Inspector duly attended the premises and issued a finding. She told the Tribunal that, she felt, she was treated differently by the respondent after this event.
In September 2013 she asked the respondent for a loan of €600 in in order to purchase tickets for a trip home over the following Christmas. She also informed her colleagues. AA said she was not at all happy with the arrangement. Some time before her departure she again spoke to the respondent who informed her he was not happy with her impending trip but he would discuss the matter on her return. On her return on the 7th January 2014 she received a letter of dismissal. She was not given the opportunity to appeal the decision.
She gave evidence of loss.
Determination:
At the outset of the hearing the Respondent’s Legal Representative conceded that as proper procedures were not followed in the Dismissal of the Claimant. The dismissal, on that basis alone, was unfair.
The Respondent’s position, however, was that the Claimant contributed in a significant manner to her own Dismissal. Further the Respondent wished to question the quantum of the Claimant’s losses.
Having considered the entirely of the evidence, the Tribunal has concluded that the Dismissal was unfair primarily on procedural grounds. Further, the Tribunal is of the view that the sanction of dismissal may not have been a proportionate response.
However, the Tribunal is of the view that the Claimant contributed significantly to her own Dismissal. There was an established practice in place among the Respondent’s employees for the booking and taking of holidays and the Claimant unilaterally departed from this practice and in so doing alienated at least one of her fellow workers and compromised her employer. Her disregard for the established and accepted arrangement for the taking of holidays was inflammatory and undermined the mutual trust that existed within the workplace.
Having considered all matters, the Tribunal awards the Claimant the sum of €4000.00 in respect of her unfair dismissal under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)