UD174/2015

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                   CASE NO.

Samson Fernandes                                                                                         UD174/2015

-claimant                  

Against

Smokey's Barbeque Limited T/A Aussie Bbq   -respondent 1

Rathmond Ireland Limited        -respondent 2

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:      Mr. P. O'Leary B L

Members:       Mr F. Moloney

                        Mr S. Mackell

heard this claim at Dublin on 2nd February 2016

Representation:

_______________

Claimant:        In Person

Respondents:  In Person

Summary of Evidence

The respondent business is a restaurant in which the claimant worked as the Head Chef. Respondent 1 employed the claimant on the 11^th of April 2013. BS was one of the Directors of Respondent 1. BS discovered that the business was not being run properly; apart from the lack of correct procedures for the employees, there was Revenue and operating issues. BS ‘parted ways’ with the other Director and took over the business himself through his company (respondent 2).   Respondent 1 ceased trading in October 2014 and is currently being liquidated.

In an attempt to ‘regularise’ the business operations BS employed a restaurant manager (SA) on a part-time basis in May 2014, he later became the full-time manager. Respondent 2 implemented Grievance & Disciplinary Procedures, a Dignity at Work Policy and Contracts of Employment for all staff. The staff were given verbal notice that the employer company would be changing (they were informed that a new name would be on their payslips.)

It was the implementation of the Contracts of Employment that led to the claimant’s employment terminating. SA stated that he gave the claimant the Contract of Employment at a meeting in a local hotel in the last week in October 2014. SA said he went through the contract in fine detail with the claimant and offered him the opportunity to take the contract away to read before signing it. The claimant had been working excessive hours (up to 69hrs per week) at a rate of €15.00 per hour. The Contract offered reduced his hours to 40 per week at a rate of €12.00 per hour. Following a phone call from the claimant BS told SA that the claimant refused to sign the contract and would not be returning to work as he was ‘going down the legal route.’

It is the claimant’s evidence that on the evening of the 2^nd of November 2014 he was handed a contract of employment by SA. This contract was for a new company (respondent 2); it reduced his working hours, reduced his hourly rate of pay and stated that he was ‘kitchen staff’. The claimant asked to take the contract away to look at it but SA told the claimant he could not. The following day the claimant got a phone call a half an hour before his shift was due to start, instructing him not to come to work as he did not sign the contract. The claimant sought advice as he did not want to lose his job. The following day when he attended for work there was another staff member doing his job. As a result the claimant phoned SA and told him he was going to start work; SA told him not to enter the premises until he arrived. The claimant had to wait outside for SA where he was then told to go home and to ‘wait until further notice.’ The claimant then contacted the owner BS who informed him that SA was handling everything.

Determination

At the commencement of the hearing, the Tribunal joined the second named respondent to the proceedings by agreement of the parties under Sec.39 of the Organisation of Working Time Act 1997. Although the facts of the new Contract of Employment offered are not in dispute, there is a conflict of evidence in how the claimant’s employment came to an end. The Tribunal prefer the claimant’s evidence. The claimant’s employment was being transferred from respondent 1 to respondent 2. In so doing the respondent attempted to unilaterally alter the claimant’s terms and conditions of employment which is contrary to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

The Tribunal finds that the claim under the Unfair Dismissals Acts 1977 to 2007 against Respondent 2 succeeds and awards the claimant €5,790.00 in compensation.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)