EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD948/2015
MN451/2015
CLAIM(S) OF:
Ovidiu Dascalescu – claimant
against
Viva Parcel Services 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: Ms N. O'Carroll-Kelly BL
Members: Mr J. Horan
Ms. E. Brezina
heard this claim at Dublin on 29th July 2016
Representation:
_______________
Claimant(s): Mr John Wilde Crosby BL, instructed by: Barry Healy & Company Solicitors, 363 North Circular Road, Phibsborough, Dublin 7
Respondent(s): No appearance or representation
The determination of the Tribunal was as follows:-
There was no appearance by or representation on behalf of the respondent. The Tribunal notes that the status of the respondent was designated ‘dissolved’ on the Companies Registration Office register on 6th April 2016.
The claimant, a Romanian national, commenced his employment as a truck driver with the respondent company in August 2011. Most of his work involved making deliveries for a supermarket wholesaler. The employment was uneventful until the 2nd June 2015. On that day the claimant was due to finish at 9pm. At 3pm he received a text message from his manager, which he produced at the hearing, instructing him to return to the headquarters when he was finished and empty cages. The claimant refused to do this as he would have completed a 12 hour shift at 9pm and told his manager he was not ‘a slave’. His manager told him he could work a 15 hour shift. There was no mention of overtime. The claimant refused. He told the claimant to leave the truck, cleaned inside and out, along with payment collections by 10am the following morning. He brought the delivery money the following morning and asked what the situation was. His manager called him a ‘lazy pig’. He knew the company had lost the contract for the wholesaler and this work would cease in October/November of that year. He was dismissed without notice.
The claimant’s basic pay was €418.92 and received a further €128.25 in subsistence pay per week. He secured alternative work five weeks after being dismissed. His new job paid €367.02 basic pay and €126.85 in subsistence pay. The claimant submitted that his regular subsistence pay should form part of any award made.
Determination:
Having heard the uncontested evidence of the claimant the Tribunal finds that he was unfairly dismissed and awards him €2,094.60 (two thousand & ninety-four euro sixty cent) in respect of five weeks’ pay and a further €5,304.00 (€51.00 x 104 weeks) in respect of the ongoing differential between his rate of pay with his new employer and that with the respondent company. The total awarded under the Unfair Dismissals Acts, 1977 to 2007, is equal to €7,398.60 (seven thousand three hundred & ninety-eight euro, sixty cent). The Tribunal has not factored the claimant’s subsistence pay into the award as subsistence pay is not a taxable form of pay.
The Tribunal also awards the claimant €837.84 (eight hundred & thirty-seven euro, eighty-four cent) in respect of two weeks’ 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)