EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Pawel Kwiatkowski
- claimant UD1510/2013
Against
Nakon Thai Restaurant Limited
- respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Lucey
Members: Mr. L. Tobin
Mr O. Wills
heard this claim at Cork on 19th February 2015
Representation:
Claimant(s) : Ms Mary Toher B.L. instructed by Ms Denise O’Donovan, Vincent Toher & Co, Solicitors, Legal Chambers, 2 Washington Street West, Cork
Respondent(s) : Ms Denise Mulcahy B.L. instructed by Ms Louise Murray,
Eamon Murray & Co., Solicitors, 6/7 Sheares Street, Cork
The determination of the Tribunal was as follows:-
Summary of Evidence
The respondent submitted that in August 2013 the restaurant business declined due to the economic downturn and an unusually hot summer all contributing factors. The owner and manager (SMcG) gave evidence of employing the claimant in May 2012 in the role of kitchen porter. Her evidence was that the claimant had no experience in food preparation or cooking and was never trained as a chef. She never trained him during the course of his employment and he never performed any role other than kitchen porter. In August 2013 due to the decline in business she informed him on the 24 August that she no longer had work for him. She gave him two weeks notice. She did not replace the claimant but did hire two chefs after the claimant’s employment terminated.
Under cross examination the witness denied that the claimant after two months in employment began assisting with food preparation. She denied employing MW and further denied that she was in a relationship and co-habiting with MW who was a friend of the claimant. The witness denied that she dismissed the claimant due to the break up of the relationship with MW. Allegations of overtime cash payments to the claimant and cash payments to MW were denied by the respondent.
The claimant gave evidence of commencing employment on the 20 May 2015. His friend MW had helped him get the job. MW was in a relationship with the respondent. He commenced his employment in the role of kitchen porter but after two or three months he was preparing food, cooking and assisting the chef. The respondent trained him on food preparation. He worked thirty nine hours and generally worked ten hours overtime each week receiving a cash payment for overtime with his pay slip each week. In June 2013 his hours were reduced without any explanation. He was informed of his dismissal on the 24 August and believes that his dismissal was directly related to the break down of the relationship between MW and the respondent.
The working relationship deteriorated when the respondent and MW had an argument. In early August he had commenced looking for alternative employment as he knew his dismissal was imminent. He had a family to support and needed security. He secured a job and commenced his new employment on the 21 August 2013.
MW a friend and former employee of the respondent company gave evidence. He had secured the job for the claimant with the respondent as he was in a relationship with the respondent from December 2011 up to the break up in August 2013. He had worked weekends only packing takeaways and was paid cash. The relationship began to breakdown in May /June 2013 and finally ended in August.
Determination
It was accepted by both parties that there was a minimal reduction in the claimant’s weekly working hours. The contract of employment was not submitted to the Tribunal.
The Tribunal heard evidence from both parties that on the 24 August 2013 the claimant was informed by the respondent of his dismissal however the Tribunal noted that claimant was not working that day. Evidence that the claimant had commenced alternative full time employment was submitted with conflicting commencement dates of the new employment provided including the 21 August and the 24 August 2013.
The Tribunal having considered the contradictory evidence in the case dismiss the claim under the Unfair Dismissal Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)