EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Wieslaw Witek UD1363/2013
against
Noonan Services Group Limited
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey BL
Members: Mr. T. O'Grady
Ms. M. Mulcahy
heard this claim in Dublin on 18 December 2014
Representation:
_______________
Claimant(s):
No legal or trade union representation
Respondent(s):
Mr. John Barry for Ms. Amanda Scully, Management Support Services (Irl.) Ltd,
The Courtyard, Hill Street, Dubin 1
The determination of the Tribunal was as follows:-
The claimant was a security officer who alleged that his work was trouble-free until his site was taken over by the respondent. Thereafter, he found it so problematic to get leave approved that he ultimately resigned. He alleged that, as a Pole, the treatment he received was worse than that afforded to employees from Ireland and even other nations.
Under cross-examination it was put to the claimant that his treatment was not significantly worse after the transfer of undertaking than it had been before it. He disagreed with this.
In questioning by the Tribunal itself the claimant was asked about the fact that he had applied to the respondent among other employers after his time with the respondent. He replied that the respondent operated at more than one location.
Giving sworn testimony, AH (security operations manager for the respondent) said that the respondent had had responsibility for the site of the relevant client (here referred to as DHX) since 2007. The respondent had core officers and non-core officers brought in for cover. The claimant’s performance was fine. He just did his job. The respondent had a routine of rostering staff. When an employee looked for holidays a respondent employee (here referred to as MGX) looked at it.
The respondent tried to keep holidays given in accord with holidays accrued and so tried not to give two weeks’ holidays at the start of the year. However, AH stated that one employee (here referred to as FRX) had been owed holidays which the respondent had had to get rid of. A full two weeks’ leave had to be pre-rostered. Nevertheless, the claimant had rung in sick. The respondent offered a couple of days but the claimant was not happy.
Regarding core officers, AH said that only one could go on holidays at a time. The respondent had to allow for a margin of safety. However, MGX got upset about e-mail from the claimant.
Asked about a grievance meeting, AH replied that it was difficult because the claimant did not want to listen. The claimant said that his father-in-law had made the holiday booking for him. The claimant was not getting from the respondent the answer he wanted. He thought he was entitled to the holidays. However, the respondent said that it had to have cover. AH had to manage any sick leave. The claimant only wanted to hear that he had got the holidays. He did not say that he had been bullied or harassed but said that two men had been on holidays at the same time. He alleged that there had been discrimination between the treatment shown to a Lithuanian and that shown to a Pole. His position was that family came first and he would go on holidays. AH asked if it could be moved. She told him that there would be consequences. He acknowledged this.
AH told the Tribunal that she knew of July 2013 correspondence by LR of the respondent. The claimant never lodged an appeal to the respondent. In mid-July 2013 the claimant resigned. LR wrote to the claimant but he maintained his position. The respondent had never seen this as needed.
Determination:
Having considered all of the evidence, the Tribunal finds that the claimant did not meet the criteria for a constructive dismissal. It was not unreasonable for the company to assess whether a request for holidays was compatible with their requirements in terms of operational concerns. He seemed to be under the impression that, because of his good work record and because his holiday was booked by his father-in-law as a gift, this somehow entitled him to take his leave at that point. He indicated that, regardless of what the company did, he was taking the leave in any event. After prolonged discussions he resigned. He was requested to reconsider this position but refused, declined to do so and sought his P45.
The claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)