EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Aura Nedelcu UD1624/2014
against
Ahmed Laassri / Casapepe Restaurant
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr J. Browne
Ms S. Kelly
heard this claim at Wexford on 17th December 2015 and 16th February 2016
Representation:
Claimant:
Mr Michael O'Neill, Solicitor, 39a Wexford Road, Arklow, Co. Wicklow
Respondent:
The respondent in person
The Claimant’s Case:
The claimant commenced employment with the respondent on 24th September 2013. She had been employed in the same restaurant since 2012 but it was run by the respondent’s nephew. The claimant said that she expected that her terms and conditions would remain the same as they were when the nephew ran the restaurant. The claimant worked part-time only because that was the nature of working in the restaurant trade.
In July 2014 the claimant said that her hours started to reduce. She would come in for work at 4 p.m. and would be told some evenings to go home as the restaurant wasn’t busy. As she was paid an hourly rate the reduction in hours reduced her income. The claimant was unhappy about the reduction and spoke to the respondent about it. The respondent told her that the business was going down every month. She accepted “that the business is hard and that the business is going down every month” but she said her hours were being given to a male waiter who started work with the respondent after her. She said that GG was not paid an hourly rate but was on a fixed rate. She also raised other issues with the respondent.
The claimant was rostered to work from 4 p.m. on Thursday, 9th October 2014. When she arrived at the restaurant GG was there and she asked him what he was doing there. She said he told her that he was working and that she was not needed. The claimant said she phoned the respondent who told her he would be there in a while. The claimant worked for an hour and her evidence was that when the respondent arrived he told her she was not needed and she could go home. The claimant said she was very upset because nobody had informed her in advance that she was not needed even though she had called to the restaurant on Tuesday to pick up her wages. When the respondent arrived the claimant said he told her she was not needed. She told the respondent that he would have to pay her for the hour she worked and he did pay her.
The claimant said she needed “to find a better place to work” and that she had no option but to resign because of the difficulties and the uncertainty about her hours and the failure to honour her agreed terms and conditions or to listen to her grievances.
Pay slips and details of the reduction in hours were opened to the Tribunal.
In cross-examination the claimant’s evidence did not vary from that in her direct examination.
The claimant secured alternative employment 2 weeks later with the respondent’s nephew in another restaurant. The claimant gave details of her losses, €2,088.00, being the difference between the wages earned with the respondent and the new employer up to April 2015 at which time she secured employment at a comparable wage.
The Respondent’s Case:
The respondent said he was the owner of the restaurant and that previous to September 2013 the restaurant was run by his nephew. He said the claimant’s hours were reduced because business was not good particularly during July 2014 when the World Cup was on. He said he never sent the claimant home early; if business was not good he gave staff the option of going home if they wished – it was their choice.
He said that the arrangement to work three days was at the claimant’s choice in order that she could avail of social welfare payments and that he signed the paperwork for social welfare for her.
He said on the 9th October 2014 the claimant phoned him whilst he was driving. He said the charge on his phone was low and he told the claimant he would be at the restaurant shortly. He said when he arrived the claimant was in his face, shouting and asking why GG was there. The respondent said that another employee, B, was also there and that they were there because he was training them on a new menu. He denied that he told the claimant to go home. He said he told her not to be shouting and that why other staff were there was not her business. He said he got the claimant work with his nephew and that his nephew would not take the claimant without his agreement. He said he gave the claimant a reference and the reference was opened to the Tribunal.
In cross-examination the respondent was asked why he did not tell the claimant that the other staff were there for training on 9th October 2014 and the respondent said she did not give him an opportunity but was shouting and slamming the table.
In cross-examination the respondent was asked why he gave the claimant a reference if she had been shouting and carrying on as outlined by him.
GG, for the respondent, said he was present on 9th October 2014. He denied that he told the claimant she was not needed and that would not be his job, he was not the boss. He said he was there for training that evening. He said all staff, himself included, often went home if business was not good – it wasn’t just the claimant.
Determination:
Having considered the evidence adduced at the hearing the Tribunal finds that the claimant’s terms and conditions were altered in or about July 2014. There was a reduction in her hours and she could never be sure how many hours she may be required on any of the evenings she was rostered. This was causing justifiable frustration for the claimant and on 9th October 2014 when she was told, after presenting herself for work, that she was not needed it drove her to resigning there and then. In the circumstances the Tribunal finds that the claimant was constructively dismissed and which dismissal is unfair.
Accordingly, the claim under the Unfair Dismissals Acts 1977 to 2007 succeeds and the Tribunal awards the claimant compensation in the amount of €2,088.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)