UD863/2014

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD863/2014

CLAIM OF:                                                                                                 

John Palmer

   - claimant           

Against

Lakemarsh Holdings Limited (In Liquidation)

 - respondent 1

and

Connacht Hospitality Limited

 - respondent 2

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr J. Fahy B.L.

Members:     Mr T.L Gill

                     Mr T. J. Gill

heard this claim at Galway on 29th September 2014 and 12 January 2015, 6 May 2015, 3 July 2015, 28 September 2015 and 19 October 2016

Representation:

Claimant:         Mr. Vincent Shields, Vincent Shields Solicitors, Cross Street, Athenry, Co.Galway

Respondent 1:P J Lynch, PJ Lynch & Co., 5-7 Westland Square, Pearse Street, Dublin 2

                        Cormac McCarthy Solicitors, Swan Gate House, Swan Gate, Athenry, Co Galway

Respondent 2: Mr Kevin Dineen B.L. and Mr. Patrick Mullins, BDM Boylan, Solicitors,   Clarke’s Bridge House, Hanover Street, Cork

(Note: neither respondent attended on 19 October 2016 although the Tribunal notified the parties in advance of the hearing.)

At the resumed hearing on the 12 January 2015 the representative for the second named respondent submitted that he was not in a position to adduce evidence in the case as he had no personnel file for the claimant. He submitted that the second named respondent was incorporated after the claimant’s date of dismissal. He submitted that he had been unable to obtain any documentation from the liquidator regarding the claimant’s personnel file.

The Tribunal explained that in order to proceed with the case it needed to establish if a transfer of undertaking took place when the premises was taken over by the second named respondent. The claimant’s representative submitted that the premises never closed down and a letter dated the 10 June 2013 from the second named respondent to employees was opened to the Tribunal.

The Tribunal directed the representative for the first named respondent (the liquidator) to copy all relevant files regarding the claimant to the second named respondent within four weeks. The hearing was adjourned to resume for half day after the 9 February 2015.

Summary of Evidence (Preliminary Issue)

At an earlier hearing the Tribunal heard an application on behalf of the respondent that the claim was not filed within the statutory six months.

At a resumed hearing on the 28 September 2015 the Tribunal heard evidence from the claimant’s former solicitor (JD). The witness gave evidence of filing the claim with the WRC on behalf of the claimant on the 20 November 2012. Post book entries were opened to the Tribunal in support of the claim being submitted on that date. Correspondence from JD dated 20 November 2012 to the claimant advising him that his claim was sent to the WRC on that date was also opened to the Tribunal. JD left the firm of solicitors at the end of November 2012 and had no further involvement with the case.

The secretary who was employed by JD at that time gave evidence of logging the post in a post book which was opened to the Tribunal. The claim form to the WRC and the letter to the claimant on the 20 November 2012 were both logged in the post book. The custom and practice at the firm of solicitors was that all outgoing post was logged each day.

The Tribunal considered the oral and documentary evidence given by the witnesses and is satisfied that the claim was filed on the 20 November 2012. Whilst the Tribunal is unable to ascertain the date the claim form was received by the WRC it is satisfied with the sworn evidence and post book entries that the claim was posted on that date. The Tribunal also noted that the claim form was signed by the claimant on the 15 October 2012. A letter dated the 31 January 2013 from the solicitor who took over the file from JD to the WRC referred to the claimant’s application which was submitted on the 20 November 2012 which further supports the evidence that the claim was posted on that date. The Tribunal therefore have jurisdiction to hear the claim.

On 19 October 2016 the Tribunal opened by noting that there had been a transfer of undertaking and that it was satisfied that the Tribunal had done what it should to notify the hotel.

Giving sworn testimony, the claimant said that he had started in March 1996 as hotel head of maintenance and that he had held that role until his dismissal. The first hotel had been succeeded by franchise operators. He had earned a salary of some fifty thousand euro per annum. The material date was 11 April 2012. The hotel paid eight weeks’ “suspension”.

The final transfer to the hotel was effective from 10 June 2013.

The claimant was to repair and replace items. He would assess if they were beyond repair. A big number of televisions had been replaced. Stock was offered to staff. The claimant used a skip. He preferred to give to staff rather than dump things. It was his role to assess the condition of items. Tiles had fallen from walls. PF (a director) had an interest in them. There was waste. The claimant had to pull down tiles. He met SB of the hotel in the lobby. Other tiles were found. Old ones that had been falling off had been thrown in a skip. A director had approached the claimant about keeping old tiles. The claimant fixed what he could. There were about twenty boxes of tiles. A contractor came along. The hotel’s manager (SL) asked the claimant to sort it out.

The claimant told EO (contractor for the hotel) that he was clearing things out. They were put in EO’s van. NR (of the hotel) asked what was being stolen now. The claimant was contacted and dismissed after an investigation and disciplinary procedure. The claimant was not satisfied that he had received written notice of each stage and that all procedure was correctly complied with. He also maintained that the hotel custom and practice was that heads of department (of whom the claimant was one) had discretion about the disposal of items.

The claimant’s dismissal was upheld on appeal. The claimant did not feel that the hotel had given enough time to hearing his side of the story.

The claimant did not succeed in getting new employment though he spent much time doing courses. He had been available for work but said that Galway was small and that he could not travel far because he had a young family.

Giving sworn testimony, EO said that he was told the tiles were for dumping and that he took them. He had asked to speak to SB but she was not there.

Giving sworn testimony, JG (a former shop steward for the hotel) said that the hotel’s custom and practice was to give away nothing but that there had been tiles to get rid of for a year or two and that they had been told by SB to get rid of them. The permission of a head of department was needed.

There was no cross-examination by the hotel nor were witnesses called by the hotel.

Determination:

The Tribunal has heard all evidence adduced. The Tribunal is satisfied that the hotel was notified of the 19 October 2016 hearing even though there was no appearance by or on behalf of the hotel on that day.

The Tribunal is satisfied that there was a transfer of undertaking in mid-June 2013.

There was uncontested testimony by and for the claimant. The hotel did not discharge its onus to show substantial grounds justifying the dismissal. The Tribunal finds that the claimant was unfairly dismissed.

In all the circumstances of the case, allowing the claim under the Unfair Dismissals Acts, 1977 to 2007, the Tribunal unanimously deems it just and equitable to order that the second-named respondent pay compensation to the claimant in the amount of €45,000.00 (forty-five thousand euro).

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)