EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Michele Di Stefano UD100/2015
Against
Gianfranco Di Fabio And Fabio Di Fabio
T/A Nonna Rosa Italian 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
Mr F. Dorgan
heard this claim at Wexford on 16th December 2015
Representation:
Claimant:
Mr. Paul Ebrill, Kirwan & Kirwan Solicitors, 4 Cornmarket, Wexford
Respondent:
The respondents in person
Background:
The claimant commenced employment as a chef with the respondent on 22nd October 2013 and his employment ended on 28th December 2014. The claimant was invited by the respondent to come from Italy to take up employment at the restaurant in Wexford. The claimant earned in or about €314.28 per week plus tips and could earn up to €500 per week at times. The claimant alleges he was unfairly dismissed’ the respondent disputes this and says that the claimant left his employment.
The respondent’s case:
The respondent gave evidence that there was a “huge problem” with the claimant. He said that the claimant did not come to work for 2 weeks because he was drinking. The respondent said during this time he could not contact the claimant by phone. The respondent opened to the Tribunal statements of text messages received by the respondent from the claimant wherein the claimant said he would not be coming to work, that he was feeling very unwell and thought he might have influenza. Another text stated that the claimant was feeling bad because he had been drinking and that he was lonely and wished to go home and requested the respondent to assist him with getting home. In a text message of 27th December 2014 the claimant stated that “he was not working”. The respondent took this to mean that the claimant no longer wished to work for the respondent.
The respondent said that the claimant was absent for 4 days from 16th to 19th December and that this caused difficulties for him in seeking a replacement chef and that for one of the days towards the end of December when the claimant failed to come to work the restaurant had to close. The respondent gave evidence that the claimant had been drinking in the pub next door on the night of 26th December with his girlfriend and that was why the claimant could not come to work on 27th December 2014.
In cross-examination the respondent accepted that the claimant tried to come back to work when he came to the restaurant a day or two later and when he told the claimant that there was no work as he had left the claimant demanded the sum of €3,000 as a finishing of the relationship money.
The respondent accepted that the claimant received his P45 from the accountant one week later. The respondent also accepted that he gave no written warnings to the claimant but said he did speak to the claimant regarding his drinking and “coming to work many times drunk”. When asked when the difficulties with the claimant started the respondent said a couple of months before. When asked, the respondent said the claimant always knew he had to work week-ends.
The claimant’s case:
The claimant told the Tribunal that the respondent brought him over from Italy to work as a chef in the restaurant. He said he worked every day the owner asked him to work and did anything he was asked to do over and above his duties as chef. He said he did everything he was asked to do and gave his soul to the business. He said he never drank without permission and disputed that he missed work because of drinking. He said he never took a drink at work except when offered to him by the respondent.
The claimant said he was not out drinking anywhere on the 26th December 2014, that he was alone in his apartment and that his girlfriend, TC, was out in another pub with her friend and came to visit him later.
The claimant acknowledged that he sent the text messages but said that the text of 27th December 2014 only said that “he was not working” and did not mean that he was resigning. He meant that he was not working that day. The claimant said he “was having a difficult period”; 2 years not seeing his family. The claimant disputed that he missed 4 days’ work.
Regarding the €3,000 finishing the relationship money demand the claimant disputed this but said he asked for his contractual entitlement which was “the day you finish work you have a month’s salary”.
The claimant said after his dismissal he took legal advice and submitted his claim. Mediation was offered which the claimant would have agreed to but the respondent declined.
The claimant gave evidence of mitigation. He applied to FÁS and looked up jobs in Wexford on the internet. He had an interview for Whites Hotel, worked about 10 to 11 days in the Thomas Moore Tavern and had a trial in the Whitford Hotel. He obtained employment about 2 months ago in a restaurant in Enniscorthy at €12.50 per hour for hours amounting to in or about €200 to €220 per week.
In cross-examination he accepted that he had not returned to Italy during the 2 years but because he could not afford it. He accepted that he had gone on holiday to Spain but said his girlfriend paid for this.
TC, the claimant’s girlfriend, gave evidence to the effect that she had not been in the pub next door to the respondent’s restaurant on 26th December but that she had been in a different pub without the claimant and had returned to the claimant at his apartment in or about 12.30 a.m. where she found the claimant. She said the claimant wasn’t drunk but was somewhat down and upset.
Determination:
Having considered the evidence adduced by the parties the Tribunal finds that there were absenteeism problems regarding the claimant and that the claimant absented himself from work at a very busy period in the respondent’s restaurant and that this caused problems for the respondent. The claimant failed to satisfy the Tribunal that he had good reason to so absent himself and accordingly the respondent was entitled to dismiss the claimant.
The Tribunal further finds that whether the claimant left or the respondent dismissed the claimant it was clear that the claimant was not unhappy to go. This is supported by the fact that the claimant put up no fight to return to work but rather wanted his alleged contractual entitlement to a month’s salary if the employment relationship finished.
In the circumstances the claim under the Unfair Dismissals Acts 1977-2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)