UD1001/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                               CASE NO.

Atis Zigalovs                                                                                                           UD1001/2013

against

McGoldricks Garage Limited T/A McGoldricks

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms B. Glynn

Members:     Mr E. Handley

                    Mr T. Gill

heard this claim at Longford on 30th March 2015 and 3rd June 2015

Representation:

Claimant:

             Mr Michael Connellan, Connellan, Solicitors,

             3 Church Street, Longford, Co Longford

Respondent:

             Sean Conlan & Co, Solicitors, Main St, Ballybay, Monahgan

Background:

The respondent operates a garage which services and repairs motor vehicles and the claimant was employed there as a driver/mechanic from 6^th December 2009 until his employment terminated on 22^nd May 2013.

It was common case that there was an incident on 22^nd May 2012 which led to the respondent telling the claimant to go home. However the fact of dismissal was in dispute. On the one hand the claimant alleged that he was told to go home and not come back as his job was gone. On the other hand the respondent said that the claimant was told to go home and come back to work when he had cooled down.

There was a history of the claimant being sent home from work and later returning but the claimant told the Tribunal that this time was different in that on previous occasions he was invited back to work through his brother-in-law who also worked at the garage and on this occasion he was not invited back. However the owner of the respondent told the Tribunal that on each occasion of the claimant being sent home he was never invited back but would just return to work and this occasion was no different.

It was the respondents position that the job was still open to the claimant at the time he lodged a claim with the EAT and that the claimant’s solicitor was told so. However when the claimant did not return to work and requested his P45 the respondent took it that he had resigned of his own volition.

It was the claimant’s position that the respondent had dismissed him on 22^nd May 2012 when he told him to go home and that this dismissal was confirmed insofar as the respondent did not invite him back to work even when the claimant requested his P45 some weeks later.

Determination:

The Tribunal carefully considered the evidence adduced at the hearing. There was a conflict in evidence as to what was said by the respondent on 22^nd May 2012 during a heated conversation between himself and the claimant. Given the claimant’s employment history and on the balance of probabilities the Tribunal prefers the evidence of the respondent and finds that the claimant was not dismissed by the respondent and could have returned to work as he did on previous occasions but chose not to.

Accordingly this claim under the Unfair Dismissals Acts, 1977 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)