UD1715/2014

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.   

UD1715/2014

CLAIM(S) OF:                                          

Andris Kuka                                                                                              

against

TCD Engineering Limited

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. O. Madden BL

Members:     Mr. L. Tobin

                     Mr. S. Mackell

heard this claim in Dublin on 18 February 2016 and 29 April 2016

Representation:

_______________

Claimant(s):

Mr. David Higgins, Berwick Solicitors, 4 St Brendan's Road, Woodquay, Galway

Respondent(s):

Mr. David Nohilly and Ms. Sandra Mahon, O'Donovan Mahon Cowen, Solicitors, William Street, Tullamore, Co. Offaly

The determination of the Tribunal was as follows:-

Unfair dismissal was claimed by the claimant. At the beginning of the Tribunal hearing the claimant’s representative stated that he had not previously seen a document signed by the claimant which was presented by the respondent as a resignation by the claimant. The claimant’s representative said that all turned on whether there had been a dismissal or resignation and that this net point should be decided first.

The respondent’s position was that there had been a resignation.

No Tribunal-appointed interpreter was sought for the claimant in advance of this hearing. The claimant’s representative told the Tribunal that he thought the claimant had adequate English but that the claimant’s sister was present and could assist but the respondent’s representative did not find this acceptable.

Giving sworn testimony, the claimant confirmed that it was his signature on the resignation and said that he had got it with his P45.

The claimant suffered a very severe injury to a finger in late 2013. There was medical certification and personal injury contact. It was claimed that the respondent found the certification unsatisfactory and too tardy. He said that he could not fully understand.

The claimant’s representative said that he had wanted and had sought a copy of the claimant’s contract.

The claimant said that he had no job for at least a year after his employment with the respondent. He maintained that he had not quit his job.

The Tribunal said that it was considering starting afresh with an independent interpreter but it allowed cross-examination to commence.

Under cross-examination the claimant said that a member of the principal’s family had brought him to hospital. He disagreed when it was put to him that he had said that he was sick and tired of his job and that the respondent would call a witness to testify that he had said this.

The Tribunal said that it would reserve its position as to whether or not to award costs to the respondent where the respondent was prejudiced by the fact that the Tribunal had not been asked to engage an interpreter to assist the claimant to give testimony. The Tribunal said that it wanted the claimant to understand the questions he was asked. The claimant’s representative apologised.

When the Tribunal decided to adjourn the hearing there was a tirade of foul abuse from the respondent’s principal who threatened, amongst many things, that the respondent would be put into liquidation. The Tribunal did not receive an apology on the day.

The case was adjourned to 29 April 2016.

On the day of the resumed hearing the Tribunal was told that the respondent regretted words spoken at the previous hearing. The Tribunal said that the respondent’s principal (here referred to as MD) had been very upset to the disgust of the Tribunal whose chairperson had not seen anything like that at the Tribunal. The Tribunal was told that MD was not present at the resumed hearing because he was embarrassed and that he operated a small family business. The Tribunal said that he had had a solicitor present to speak for him on that occasion and that the Tribunal had been engaging with the claimants Solicitor regarding the issue of a Tribunal-appointed interpreter which would be provided to avoid any further linguistic difficulty.

The Tribunal interpreter was sworn in at the start of the resumed hearing. The Tribunal was told of the financial loss incurred by the claimant after his employment with the respondent although there was a lack of documentation about efforts to mitigate his loss by applying for new work.

In cross-examination, while the claimant was now accompanied by the interpreter, it was put to the claimant that he had worked for the respondent for many years and had been a good worker to whom the respondent had been good to in terms of his post-accident medical appointments and wage payments although the respondent did not pay for sick leave as a rule. The claimant denied saying in August 2014 that he was sick of working for the respondent. He denied that he had had such a conversation with IMcE. He had brought a doctor’s letter saying that he could not work.

Asked about the letter of resignation that he had signed, the claimant said that he had thought he was signing for a copy contract the original of which he had been asked to return in the past. He denied having received it before. He denied having sought his P45. He alleged that he had been told that his employment was over.

It was put to the claimant that the respondent, thinking him a good worker, had not wanted him to go and had expected him to return to work after having been out. He said that he had brought his CV to employers. However, there was a lack of evidence of efforts to get new work. He was employed from October 2015 after allegedly seeking work widely. Cvs had met with no response but he admitted having no proof of job seeking from August 2014 to November 2015. He had a medical statement but said that it had been too expensive to get constant medical updates.

Giving sworn testimony, IMcE said that he had worked for the respondent for some five years and that the respondent had not wanted the claimant to leave when he said in August 2014 that he was sick of the job.

Under cross-examination, IMcE said that he had thought that MD might talk the claimant out of leaving.

Giving sworn testimony, AF said that she had been many years with the respondent and that the claimant had been there when she started although he had left for a period of time early on in his employment with the respondent. She confirmed that the claimant had been given time off to go to his medical appointments and that the respondent had continued to pay his wages even during those absences. She said that she had been told that the claimant “was sick of the job” such that he had left even after MD had asked him why he was going.

Under cross-examination and questioning by the Tribunal, AF accepted that she knew of no minutes taken when the respondent met with the claimant. She had typed up the claimant’s resignation letter. She told the Tribunal that she always thought “his English seemed okay”.

In a closing statement the claimant’s representative said that the question was whether the claimant had resigned or been dismissed and asked why the claimant would leave if he had no job to go to. MD could fly off the handle as the Tribunal had seen. The respondent could have sent a letter seeking confirmation of the claimant’s position.

The respondent’s representative said that two employees of the respondent had given evidence, that the claimant had started a personal injury case and that, maybe, the claimant thought it would help his case if he were no longer working for the respondent.

Determination

At the initial hearing, the Tribunal considered the letter dated the 20^th of August 2014 as a resignation letter. Having heard extensive evidence from both sides, on balance the Tribunal was not satisfied that the claimant was justified in resigning his position. While it is noted that the Managing Director of the respondent company may not always have been the easiest to work for, the Tribunal was not satisfied that, in the lead-up to the resignation, there had been sufficient evidence indicating such unreasonable behaviour on the part of the Managing Director justifying the claimant’s resignation. Furthermore, the Tribunal is satisfied that the claimant knew what he was saying on the 20^th of August 2014. Taking all the evidence into account, the claimant did not convince the Tribunal that he was unfairly dismissed. It should be noted that had the claimant succeeded, he failed to prove efforts to mitigate his loss which would have been detrimental to his claim. The claim under the Unfair Dismissals Acts, 1977 to 2007, fails. The claimant received all the money he was due.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)