EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD430/2015
CLAIM(S) OF:
Wojciech Zacharewicz -claimant
against
Merry's Taverns Limited T/A Merry's Gastro Pub -respondent
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 Waterford on 31st May 2016 and 21st July 2016
Representation:
Claimant: Hoban Boino, Solicitors, Suite 114, The Capel Building, Mary's Abbey, Dublin 7
Respondent: Smyth O'Brien Hegarty, Solicitors, 24 Lower Abbey Street, Dublin 1
Background:
The claimant commenced work with the respondent on 6th April 2012 and his employment terminated on 23rd January 2015 as per the P45. He worked 30 hours per week and earned €276 per week. The claimant claims he was unfairly dismissed and the respondent disputes this.
The Respondent’s Case:
ES for the respondent told the Tribunal that she was General Manager for the respondent since 17th January 2008. Her father was the main shareholder. She was also a director of the respondent. ES told the Tribunal she left Dublin to come to Dungarvan. Initially she lived in a bed and breakfast for three months and then she lived over the pub for a few years. When she started she employed 8 staff but now during the summer the business can have 25 staff. The work was seasonal with summer and Christmas being the busiest periods.
She told the Tribunal she was passionate about her work and that the pub won the ‘Best Gastro Pub Munster’ award last year.
ES looked after administration and saw that rotas went to the accountant and payroll but she would not consider the paperwork part to be her strong point. She worked 70 to 80 hours per week.
She said the claimant’s brother D worked for her as a part-time waiter. His mother was in Poland and D asked ES if she had any work for his mother. ES gave the mother work and felt they had a very good relationship and that the mother loved her work with the respondent. She told the Tribunal that the claimant’s mother told her that the claimant was a policeman in Poland, had a partner and child and that they would come over to Ireland if the claimant could get work. D had at this time gone to work in the restaurant next door and ES had no issue with this. The claimant’s mother had been very good to ES and ES was happy for the claimant to come over and she would give him work. The claimant came over and ES gave him work on porter and kitchen duties.
ES said she was aware that there were difficulties and personal issues between the claimant and the claimant’s partner M. She was aware that these were causing serious distress to the claimant’s mother and one time ES had to take the mother to the hospital at the request of the claimant and the brother D.
From January 2015 all staff hours were cut. The claimant came to ES on 19th January 2015 with a social welfare form which he asked ES to sign. However, the form was filled in incorrectly in so far as the claimant worked 5 days per week but had 3 days on the sheet. ES would not sign an incorrect form.
The claimant did not come to work after the 19th January 2015 but sent text messages on 20th January 2015, 23rd January 2015 and on 27th January 2015 saying he was sick. ES sent various text messages, one on 23rd January 2016 asking the claimant could he work that night and one on 23rd January saying it was “ok” meaning ok that he was sick and could not come to work.
ES phoned the claimant late January to February 2015 but there was no reply and the ring tone was an overseas ring tone. It is ES’ understanding that the claimant had to return to Poland for periods in connection with his position as a policeman. ES did not see the claimant from 25th January 2015 until 31st May 2016 the first day of the within hearing.
On 10th March 2015 when the claimant was still absent and ES had heard nothing from him other than sick certificates left at the pub she sent a text on 3rd March 2015 asking him to come and meet her and when he failed to respond she sent another on 19th March 2015 stating that she had been trying to contact the claimant with no success and that she had his “P45 here to collect”.
From 3rd February 2015 to 30th June 2015 the claimant sent in medical certificates stating that he was suffering from work related stress. The claimant had never complained about stress up to this time. The certificates continued to arrive after the claimant had received his P45. At no time during the course of his employment did the claimant raise any grievances with ES other than to show dissatisfaction with her refusal to sign the incorrect social welfare form.
In his claim, the claimant raised the issue of a staff party at a club in September 2012 where he alleges that he had to leave because of the conduct of ES which left him feeling humiliated and degraded. A further similar issue was alleged regarding a staff party in December 2012 and an alleged incident at the home of ES when the claimant was painting the house for ES. ES gave evidence to the Tribunal as to why the claimant’s allegations did not and could not have happened.
In cross-examination ES said she did not know when the decision to dismiss the claimant was made. From late January to mid-February, the claimant was not coming to work, there were overseas ring tones from his phone and she did not know what was happening. Medical certificates from the claimant’s doctor were put under her door. A P45 was issued on 11th June 2015.
During cross-examination there was a dispute as to whether the claimant ever received a dismissal letter.
At the resumed hearing on 21st July 2016 DC for the respondent told the Tribunal he was employed by the respondent for the past four years as a chef. He said he worked with the claimant and got on well with him. They had some outside interests in common. He understood that the claimant was still working in Poland and he took time off from time to time in order to return to this work in Poland. He said the claimant’s mother would fill in for the claimant at these times. DC told the Tribunal that the claimant never mentioned the alleged conduct to him and that he never seemed upset. The legal representative for the claimant said he had no questions for this witness.
JS for the respondent then gave evidence. He said he was the father of ES who had a heart of gold, was very involved in the day to day running of the business, 24-7, but she was dyslexic and left most of the accounts and paperwork to him. He told the Tribunal he had been in the pub business for 36 years and that he took an active part in the respondent business coming down to Dungarvan every week during 2007 and 2008. He told the Tribunal that he made it his business to get to know all the employees and always asked if they had any problems. He always listened to the staff and their opinions about how things could be improved in the business and that he had a lot of respect for the staff. He said he knew the claimant very well and often spoke to him in the kitchen, that they would joke and have a laugh. He talked to the claimant and his mother on a regular basis and thought they got on very well. Neither ever made a complaint regarding their employment. He found the claimant polite and they were cordial towards each other. He thought the claimant was a happy person and that the time the notice from the Equality Tribunal was received was the first time he heard about the conduct alleged by the claimant against ES. He said he could not believe it; he said his reaction was quite sickening. He knew that the claimant and his mother were missing. He told the Tribunal he tried phoning the claimant and got an international ring tone and that an international code came up. One time the phone was answered and JS said “this is Jim”. There were a few short words and he was cut off. JS said he phoned back but got a blank tone. JS said he was very fond of the claimant’s mother. She used to walk ES’s dog and she was a lovely lady to talk to.
In 2013 a house was purchased by JS in Dungarvan in which ES would live. He gave the claimant some extra work moving furniture in the house and painting.
The Claimant’s Case:
The claimant told the Tribunal via a translator that he commenced employment with the respondent on 21st April 2012 as a kitchen porter and that he came to the respondent because his mother worked there. He worked between 30 hours to 40 hours per week during the busy season but it could be less than half of that in the offseason. He said that because of stress at work he would have vertigo, short breath and panic attacks and he went out sick on 20th January 2015. He said he “didn’t want to leave”. He said the first day he went to the doctor was 20th January 2015 but only had copies of sick leave certificates from 3rd February 2015 to June 2015. However, he did have a letter from his doctor dated 26th May 2016 stating that he was unfit for work from 20th January 2015 to 1st February 2016. He took medication which he clarified for the Tribunal as Fluvac and Prozac.
He told the Tribunal he went to Dr M initially and then to Dr W who he continued with up to the end. He said he texted ES around this time (20th January 2015) and told her “I can’t come to work because I’m sick sorry”. Afterwards some sick certs were brought to the respondent premises by M (the mother of his child) and his mother would bring the others. He said the doctors told him not to go to work and not to get in touch with ES.
On 19th March 2015 he got a text from ES telling him his P45 was ready. His solicitor wrote to the respondent requesting the P45 and it was furnished on 11th June 2015.
The claimant gave evidence of his efforts to find work. He said he left in CVs to various establishments, sought work by word of mouth but was unsuccessful so in March 2016 he returned to Poland. In response to the Tribunal the claimant said he sought work in restaurants and in gyms.
On clarification sought by the Tribunal the claimant said he was on illness benefit until October 2015.
In cross-examination the claimant said he started seeking work in May 2015. It was put to him that by seeking work in May 2015 he was falsely claiming illness benefit from the Irish State.
When he was questioned about other income the claimant said he had income from the rental of two apartments in Poland. He said he had no income from the police force as he had left it in 2012.
He accepted that the last day he worked for the respondent was 19th January 2015. It was put to him that he left because ES would not sign a form for the Dept. of Social Protection with incorrect working days on it. He disputed this and said she “ES” “depressed me that she wouldn’t sign the form” and that he only wanted what another worker was getting and what he was entitled to. He said that he “regrets that he didn’t quit the job” before and that it had “got to the point where I had enough”.
In response to a question from the legal representative for the respondent, the claimant said he saw Dr M on 20th January 2015 and that he “didn’t tell the doctor that I was suffering from depression”. He said that he could not recall whether he told the doctor specifically about the alleged conduct at the party.
When questioned, the claimant said “I wasn’t fired but my hours were cut”. It was put to the claimant was it his case that he was dismissed for failure to comply with demands from ES. The claimant replied “nobody forced me to leave the job but I became too ill to go to work” and then said that it was because he would not comply with the demands of ES.
The claimant was asked who he told about the alleged conduct. The claimant said he told his brother, his mother and his partner M and that he told NK, solicitor, when he consulted with him in either 2013 or 2014. He said NK said that ES was “a crazy woman”. It was put to him that his mother, in her case on 31st May 2016, told the Tribunal that she did not know about the conduct alleged by the claimant against ES until 2015.
When asked why he did not tell DC whom he was friendly with, the response given by the claimant lacked any credibility.
When questioned, the claimant said his doctors told him not to go near ES because it had a bad effect on his symptoms.
When questioned the claimant said he referred himself to the psychiatrist and that the referral had not been made by his doctors at that time but they had advised it previously.
It was put to the claimant that the respondent never told him that he was dismissed.
M, the former partner of the claimant, said that she left in the sick certificates. Some were handed in to either ES or to other staff members but most were left into the letterbox as the pub was closed sometimes because she delivered the certs while on her way to work. The letter of 18th February 2015 was shown to her and she said she never saw this letter. In cross-examination she accepted that as the letter would be in an envelope she would not see it but she was sure the claimant would have discussed such a letter with her if he had received it.
NK appeared, on request, at the Tribunal on 22nd July 2016, where it was accepted that he was there to assist the Tribunal and he told the Tribunal that the claimant had never consulted with him or raised the issue of the alleged conduct or any other employment issues; he disputed that he ever said that ES was a crazy woman and in fact during the years he knew ES that he found her to be a very good business woman who gave her all to the business. NK told the Tribunal that the claimant’s mother had approached him and told him that she had given untrue evidence to the Tribunal hearing in her case in May and would it be o.k. She also approached another party regarding same. He said he explained to her what perjury was.
Determination:
Having heard the evidence adduced at the hearing the Tribunal finds as follows:-
There were serious credibility issues with the evidence of the claimant.
The Tribunal does not accept that ES engaged in the conduct as alleged by the claimant. This holding is supported by the cogent evidence given by ES as to why the alleged conduct did not and could not have happened.
The respondent sent the text message regarding the collection of the P45 at a time when she was aggrieved at the absence of the claimant, his failure to make any contact and a belief that he was back in Poland but that she did not intend dismissing him rather she wanted to get his attention.
That had the claimant contacted the respondent, as requested, it could have been clarified whether the claimant wished to remain in the employ of the respondent and if he so wished matters could have been resolved.
The respondent did not issue the P45 until it was requested by the solicitor for the claimant in June 2015 and therefore it was ultimately the claimant who requested the P45.
The claimant’s own evidence was contradictory regarding whether he was dismissed or whether he left his employment.
The claimant intended leaving his employment with the respondent in January 2015 whether he was sick or not.
In circumstances where the claimant did not receive the dismissal letter there was no actual dismissal.
Accordingly, the claim under the Unfair Dismissals Acts 1977-2007 fails.
The Tribunal notes that the claimant in his direct evidence did not refer to the alleged conduct. The Tribunal also notes that neither legal representative questioned M about the alleged conduct.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)