EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Kabardin UD1629/2014
Lincoln's Inn PW329/2014
TE149/2014
against the recommendation of the Rights Commissioner in the case of:
Florin Daniel Ivancenco
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
PAYMENT OF WAGES ACT 1991
TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 TO 2012
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. V. Gates BL
Members: Mr. J. O'Neill
Ms. M. Mulcahy
heard this appeal in Dublin on 24 November 2015
Representation:
_______________
Appellant(s):
No legal representation
Respondent(s):
No attendance or representation
The determination of the Tribunal was as follows:-
This case came to the Tribunal as an employer appeal under the Unfair Dismissals Acts, 1977 to 2007, the Payment of Wages Act, 1991, and the Terms of Employment (Information) Act, 1994 to 2012, against Rights Commissioner Decisions/Recommendations r-143673-ud-14/jw anr-142787-9pw-14/jw.
There was no appearance on behalf of the Respondent. The Tribunal was satisfied that the Respondent had been served with the Notice of Appeal and the Notice of the Hearing Date at his last known address. The Notice of Appeal was sent by registered post to the Respondent on 10th December, 2014 and return by the Post Office to the Tribunal on 17th December, 2014. On 22nd December, 2014, the Notice of Appeal was re-sent by ordinary pre-paid post. The Notice of Hearing was sent to the Respondent by registered post on 9th November, 2015 and returned by the Post Office on 16th November, 2015. The Notice of Hearing was re-sent to the Respondent by ordinary pre-post on 19th November, 2015. In the circumstances, all reasonable efforts were made to effect service on the Respondent.
CM informed the Tribunal that he was a Director and Manager of the Appellant Company. CM formally withdrew two Appeals, that is the Appeal pursuant to the Unfair Dismissals Acts, 1977 to 2007 and pursuant to the Payment of Wages Act, 1991, in respect of which the Rights Commissioners recommendations was in the Appellant Company’s favour and proceeded with the Appeal pursuant to the Terms of Employment (Information) Act, 1994 to 2012.
CM said that the Appellant Company had not been represented before the Rights Commissioner as the relevant documentation in relation to the Hearing Date was stored in a van which had been stolen. He said that all the Appellant’s employees received their Contracts and Terms of Employment. CM gave evidence that the Respondent (hereinafter referred to as FD) and worked in the Appellant’s premises together with his brother (hereinafter referred to as ALX). A dispute arose between ALX and the Manager of the Appellant Company, resulting in his dismissal from employment. ALX allegedly urged FD not to attend work in protest. The Manager of the Appellant Company reprimanded FD for non-attendance at work, as a result of which, FD collected his P45 and any outstanding pay.
The Tribunal questioned CM in relation to the rate of FD’s weekly pay. Although he had no supporting documentation, CM gave evidence that the Respondent was employed at a rate of €11.00 an hour. When it was put to him that it had been alleged before the Rights Commissioner that there had been a reduction in pay to €9.00 an hour, CM denied this saying that the Appellant Company had lost certain documentation following the theft of the van but that the Company had payslip records to this effect. CM denied that FD had been dismissed.
CM denied that there were any payment shortfalls due to FD and further said that FD had been employed as a chef and, as the Appellant Company did not offer food on a Sunday, he could not have been due payment in respect of working on Sundays as his services were never required on a Sunday. CM said that the staff were not paid for public holidays but were given a day in lieu of pay. When questioned about break periods, CM said that all employees were given a half hour break every four hours and that FD had never worked more than an eight hour shift.
CM said that he had a very happy team at the Appellant Company’s café/bar where there was a staff of six, two of whom worked in the kitchen where FD and ALX also worked. CM gave evidence that he himself attended at the premises on a regular basis giving that, as an example, that on the day prior to the Hearing, he had been present on the premises for 5 hours and that the premises operated from noon until 10 at night (or midnight on Fridays and Saturdays). CM accepted that he had other responsibilities in relation to two other premises (one in Ranelagh and another at The Point).
It was put to CM by the Tribunal that it was very difficult for the Tribunal to assess the situation in the absence of documentary evidence. CM gave contradictory oral evidence in relation to each of the points raise by FD at the Hearing before the Rights Commissioner.
Determination:
The Tribunal was satisfied that all reasonable efforts were made to send the relevant notices to the Respondent at his last known address, noting that there is an onus on a party to notify the Tribunal of any change of address. Although CM failed to produce any supporting documentation in support of his Appeal, he did give oral evidence controverting each of the assertions made by the Respondent at the Hearing before the Rights Commissioner and as set out in fully in the recommendation of the Rights Commissioner. Whilst certain aspects of CM’s evidence lacked credibility, overall the Tribunal is satisfied that the Appeal pursuant to the Terms of Employment (Information) Act, 1994 to 2012 should be allowed.
The Tribunal notes that the Appeals pursuant to the Unfair Dismissals Acts, 1977 to 2007 and pursuant to the Payment of Wages Act, 1991 against Rights Commissioner decisions/recommendations R-143673-UD/14/JW and R-142787-9PW/14/JW were withdrawn.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)