EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD492/2015
RP22/2015
CLAIMS OF:
Matthew Carey – claimant
against
Gaiety Investments 57 Limited T/A The Academy – respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms F. Crawford B.L.
Members: Mr C. McHugh
Mr C. Ryan
heard this claim at Dublin on 5th February and 9th May 2016
Representation:
Claimant: In person
Respondent: Mr John Dunne, McInness Dunne, Solicitors, Lower Ground Floor, 78 Merrion Square, Dublin 2
The determination of the Tribunal was as follows:
The Tribunal noted that dismissal was in dispute in this case.
Claimant’s Case
The claimant was employed as a Box Office/Lost Property Manager with the respondent from 1st January 2007 until his employment ended on 7th December 2014. He also held the position of key holder.
According to the claimant his hours of work were reduced following a takeover of the company in September, 2014. His hours were reduced from twenty hours per week to between 6-8 hours per week. As a result, the claimant had no option but to seek a second job which he commenced on 10th November 2014.
The claimant met with the Chief Operations Manager (OF) in October, 2014 in relation his ongoing reduced hours of work. The claimant indicated that he was told by OF that there were only two shifts available to him. The only shift that did not suit him was a Saturday night shift and he had indicated this in September 2014. He also met OF in January when he believed he was entitled to redundancy due to lack of hours but was informed that his job was not being made redundant and that there was work there for him. The claimant then submitted a claim against the respondent and did not work any further hours with the company.
In cross-examination, the claimant denied that he had told OF that he was not available for any night shifts at all. He had said that Saturday night was the only night he could not do a late night. He accepted that he was not on lay-off in August when the premises closed for four weeks for refurbishment. He also accepted that he did not invoke the company’s grievance procedure. The claimant denied that he received rosters for the weeks of 7th and 14th December 2014. He did not complain about this as he was ‘fed up with it’.
Giving evidence on behalf of the claimant, PW informed the Tribunal that as well as working in the box office, the claimant was in charge of the cloakroom area. He was also a key holder and was on call for deliveries/fire alarm calls. It was agreed that a second witness who would give the same evidence as PW was not required.
Respondent’s Case
OF told the Tribunal that when she took up her role in 2014 she reviewed the staff contracts. The claimant’s contracted signed in 2009 described his position as box office and also stated that flexibility was required. The claimant’s hours of work were event dependent.
From 27 October 2014 she believed that the claimant was unable to work late nights and rostered him only to work for early shows. The claimant was rostered for one shift on each of the weeks starting 8th & 15th December 2014. He did not attend for work on either occasion. OF herself covered his first absence and the assistant manager covered his second absence. She believed he could not take the shifts because he had another job.
OF did not contact the claimant and he did not contact her. The PR supervisor had, she believed, contact with the claimant. She first learned that the claimant considered his position had been made redundant when he made a written claim for redundancy. However there was work available for the claimant and therefore a redundancy situation did not exist.
OF met the claimant on 27th January 2015. She hoped to clear the air with him. He was unavailable to work late shifts and only late shifts were available in January. At the meeting the claimant was upset and annoyed. He did not clarify that he was only not available to work late shifts on Saturdays. She did not offer him 2 shifts a week in future. Following the meeting shifts were available but she did not roster the claimant again.
In the document opened to the Tribunal showing the hours worked by the claimant his job description from January to August 2014 is F.OH. Usher/Stage Door. This changed in September 2014 to Bar/Sweets. OF said the reason for this change was an upgrade to the respondent’s accounting software.
The PR supervisor gave evidence. He was one of two managers who prepared rosters. Rosters are communicated to employees by being posted on a facebook group. He could not remember whether the claimant was a member of the group or not. He attempted to roster the claimant in January 2015 but he was not available. He wanted a meeting with OF before being put back on the roster.
The PR supervisor found the claimant good at his box office role. He knew nothing about the claimant looking after lost property.
Determination
The Tribunal carefully considered the evidence adduced and the documents opened in the course of this Hearing.
The respondent’s business closed down for 4 weeks for refurbishment and a new management team was put in place. When OF took up her position in September 2014 she read the claimant’s contract of employment and based her opinion of his role on a document that was approximately 5 years old and did not speak to the claimant at all about how his role had evolved over several years. As a result she never learned about his roles relating to lost property or his position of responsibility as a key-holder.
The claimant’s job description was changed from F.O.H to PR services without explanation. OF clarified to the Tribunal that this was the result of a software upgrade but never thought to inform the claimant of this.
The Tribunal accepts the evidence of the respondent that there was work available for the respondent and therefore that a redundancy situation did not exist. The claim under the Redundancy Payments Acts 1967 to 2007 is dismissed.
In considering the claim for constructive dismissal the Tribunal note that the claimant’s hours of work reduced significantly from October 2014. The reason given for this is the respondent’s belief that the claimant was no longer available to work late shifts. The claimant has maintained that he was only not available for late shifts on Saturday nights. It seems extraordinary that this miscommunication could have continued for a period of at least 3 months without either side clarifying or seeking clarification of the situation. Both OF and the claimant contributed to this unsatisfactory state of affairs and both could and should have taken remedial action.
Taking the significant reduction in the claimant’s hours of work and the unilateral change made to his job description into account the Tribunal allows his claim under the Unfair Dismissals Acts 1977 to 2007. In all the circumstances the claimant is awarded the sum of €500.00.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)