EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Grozdan Petrov - appellant UD1/2015
TE1/2015
V WT1/2015
Nikolay Manchev Angelov – respondent
against the recommendation of the Rights Commissioner in the case of:
Nikolay Manchev Angelov
V
Grozdan Petrov
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
ORGANISATION OF WORKING TIME ACT 1997
TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 TO 2012
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath BL
Members: Mr C. Lucey
Mr J. Jordan
heard this appeal at Dublin on 6th October 2015
Representation:
_______________
Appellant(s): Mr Colm Hennessy BL
Law Library, Dublin 7
Respondent(s): Mr Barry Lennon BL instructed by:
Ms Alison Twomey
Rochford Gibbons Solicitors
Equity House, 16/17 Upper Ormond Quay, Dublin 7
This case came before the Tribunal by way of an employer appealing the recommendations of a Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007, (ref: r-146113-ud-14/JW), the Terms of Employment (Information) Act, 1994 to 2012, (ref: r-144734-te-14/JW) and the Organisation of Working Time Act, 1997, (ref: r-144735-wt-14/JW).
The determination of the Tribunal was as follows:-
The Tribunal has carefully considered the evidence adduced in the course of the hearing. A number of matters came before the Tribunal on foot of appeals against Rights Commissioner findings dated 13th of November 2014 made under the Unfair Dismissals Acts, 1977 to 2007, the Organisation of Working Time Act, 1997, and the Terms of Employment (Information) Act 1994 to 2012. There is additionally a claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 (ref: MN413/2014).
The workplace is a barber’s premises situated in the city centre. The parties herein are all originally from Bulgaria and the Tribunal had the assistance of an interpreter to assist with the giving of clear and concise evidence.
The respondent (GP) owned and managed the barber shop though his presence thereon appears to have been sporadic and he himself was not a barber. The claimant came to the premises with little experience and initially was trained up for a period of three months before being taken on.
There was a not inconsiderable amount of conflicting evidence between the claimant and GP. If this workplace operated within the law, it was only barely there. A portion of the claimant’s salary was run through the accounting books whilst the balance was paid in cash. This arrangement may have worked for the parties while their relationship was good, but there was a clear attempt on both of their parts to defraud Revenue, and the Tribunal has to be cognisant of this fact in looking at the events that transpired.
The claimant commenced working fulltime for the respondent in and around June 2012. On balance the Tribunal accepts that the claimant mostly worked a six day week and may have earned up to €400 per week with only €150 of that amount being liable to tax and USC.
It was repeatedly raised in evidence that the claimant was a church goer and to some extent was allowing his church’s message to impact on his working relationships. In particular, it seems that that the claimant believed that another tenant in the building in which the barber shop was situated was in need of his assistance. The claimant aired the issue with the respondent who was the landlord of the entire building and the Tribunal accepts that tensions arose between the parties arising out of what the employer believed to be an act of interference and the employee believed to be his religious duty.
At an exact date unknown but during the month of March 2014 the claimant sought his working week to be reduced from six to five days. In particular the claimant was hoping to be able to take Saturdays off as he wanted to attend his church. This arrangement did not suit the employer and there was a compromise of allowing the claimant take Wednesdays off instead though this did not fulfil the claimant’s desire to be free for his Saturday services.
Towards the middle of April 2014 a phone call to the employer from the claimant triggered a decision on the part of GP to view CCTV footage in the shop to see if there was any unusual activity and/or any explanation as to why the claimant’s wages envelope or the till (depending on whose version of the evidence was correct) was light by €50.
The respondent seems to have examined CCTV footage covering a week or two predating the 1st of April. The respondent in evidence explained that one transaction struck him as being irregular. The transaction footage was shown to the Tribunal. There was no accompanying audio. The Tribunal accepts the respondent could well interpret the act as demonstrating an attempt on the part of the claimant to steal €5 but the Tribunal must also recognise that there is a perfectly innocent explanation as offered by the claimant that he was simply pocketing a €5 tip given by the anonymous customer. The respondent claimed this latter explanation to have been fanciful but the Tribunal has to find it to be as credible an interpretation as that of theft.
On the 19th of April the respondent confronted the claimant with his accusation. As there was no witness to this conversation the Tribunal must attempt to find the truth in the two conflicting accounts of what happened on this date. On balance the Tribunal determines that the claimant was told to leave the premises and it was the express intention of the employer that he would not return. In effect the claimant was dismissed on the 19th of April 2014.
The claimant was greatly aggrieved but never returned to the workplace.
In light of the above circumstances where no formal procedures were observed or even in place in the workplace the Tribunal must find the claimant was unfairly dismissed and the Tribunal upholds the Rights Commissioner’s finding including that of compensation in the amount of €2,500.00 (two thousand five hundred euro).
Having heard evidence in connection with the fact that there was no written contract of employment the Tribunal upholds the recommendation of the Rights Commissioner under the Terms of Employment (Information) Act, 1994 to 2012, that the employer pay the employee €600.00 (six hundred euro) under this Act.
Nothing the respondent said contradicted the claimant’s relevant evidence in connection with the Organisation of Working Time Act, 1997, and the Tribunal upholds that award in the amount of €4,031.00 (four thousand & thirty-one euro) made by the Rights Commissioner.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)