UD1302/2014, MN648/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                               CASE NO.

Dion Wall                                                       -claimant                                UD1302/2014                                                                                                                                MN648/2014

against

Burnside Hydracyl (Ballymoon) Limited      -respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr N. Russell

Members:     Mr J. Browne

                    Ms S. Kelly

heard this claim at Carlow on 24th September 2015

Representation:

Claimant:        Ms. Emma Muldowney B.L. instructed by Niamh Tuite & Company,

Solicitors, Balreask, Trim Road, Navan, Co. Meath

Respondent:    The Managing Director of the company.

Summary of evidence:

The claimant was employed as a general operative from 13^th June 2013. Initially the employment was intended as a period of summer work as had occurred the previous year. However, following receipt of his Leaving Certificate results in August 2013 the claimant decided to defer college. He informed the company of this and enquired about full-time work with the company which he was subsequently offered. It was the claimant’s evidence that he did not really intend to pursue college at a later stage as he was hoping an apprenticeship might become available with the respondent company over time.

The claimant applied for the army during the summer of 2014 and this was known within the company. It was his evidence that during July the Production Manager asked him when he was leaving for the army. The claimant replied that he did not know if he would be successful given the number of applicants. The Production Manager told the claimant that he would make it easy for him as he would be “getting rid” of him.

When the claimant attended work on Monday, 28^th July 2014 a rumour was circulating that he was being given his notice that day. Subsequently, the Production Manager handed him a letter dated 25^th July 2014 which stated that the claimant’s contract was due to finish on 1^st August 2014 as agreed at the commencement of the employment. A discussion was held in the Managing Director’s office that day after the claimant was provided with the letter of termination.  

It was Managing Director’s evidence that in August 2013 the claimant was offered employment for one year only. The company sought to rely on a contract of employment in support of that contention. The contract included a section entitled “employment details” which stated:

“Your employment is on a temporary basis for 1 year for you to return to college for your deferred course in 2014. Employment dates are from 22.08.13 to 01.08.14.”

The Managing Director’s signature was stamped onto this contract by the Human Resources Manager. The original of the contract was submitted by the Managing Director to the Tribunal. However, the claimant disputed in his evidence that he had received this contract and he also disputed that the signature on the document was his. The signature was compared to his signature on other documents and appeared differently on those documents. It was the claimant’s evidence that he recalled receiving a contract of employment in June 2012 but he did not recall receiving any further contracts.

The Managing Director stated that there were issues between the claimant and the Production Manager. If this had not been the case the claimant might have been offered a further contract but in any event the company was entitled to terminate the claimant’s employment by virtue of the contract.

The claimant was unhappy with the decision to terminate his employment and he wrote a letter to the Human Resources Manager raising a number of matters including that he had not agreed to a fixed-term contract and stating that usually a fixed-term contract would be issued, explained and signed by both parties which was not the case in this instance. The letter asked the company to review the decision to terminate his employment but there was no further engagement between the parties.

The claimant gave evidence of loss and mitigation of that loss which included his subsequent appointment to the army. He confirmed that the only reason he would have departed the company of his own accord was for a position in the army.

Determination:

Having considered the evidence of both witnesses and the documents provided it is the decision of the Tribunal that the claimant’s employment was not terminated arising solely out of the expiration of a fixed-term contract. There was no basis for the termination of the claimant’s employment by notice dated the 25^th July and delivered to him on the 28^th July.

However, in determining the amount of compensation to be paid, the Tribunal has had due regard to the fact that the claimant, by his own actions, indicated no intention of remaining for any appreciable period in the respondent’s employment and did secure temporary work within a short period of the termination of his employment and shortly thereafter got a position in the army which was his primary objective for some time.

The Tribunal awards the claimant the sum of €1,500 under the Acts in respect of his unfair dismissal and the sum of €148.20 (being the equivalent of two days’ gross pay) is awarded in respect of notice pay under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)