UD31/2015

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                   CASE NO.

Benhur Fernandes                                                                                          UD31/2015

-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 a 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 €11.00 during the week and €12.00 at the weekend.  The Contract offered reduced his hours to 40 per week at a rate of €10.00 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 night 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 had a start date of the 1^st of November 2014. The claimant did not have an issue with the reduced hours only the reduced pay and start date.   SA told the claimant that he had to sign the contract immediately or else he could not continue to work.  The claimant finished his shift at 12.00am as normal. When the claimant attended for work the following day he was told by SA to go home until further notice. Again on the 4^th of November he was told to go home until further notice.  The claimant then spoke to BS who told him that if he was unhappy he should speak to SA.   The claimant got his P45 in the post 3 weeks later.

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 €4,380.00 in compensation.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)