UD1013/2015

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD1013/2015

CLAIM(S) OF:                                                                                              

Richard Kidney

– claimant                                                                           

Against

Phoenix Inn Limited T/A The Kestrel Inn

– respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Mr C. Corcoran B.L.

Members:        Mr J. Horan

                        Mr A. Butler

heard this claim at Dublin on 14th July 2016

Representation:

_______________

Claimant(s) :                Ms Tara Keane, 53 Stephens Road, Inchicore, Dublin 8

Respondent(s) :           Company Director

The determination of the Tribunal was as follows:-

While dismissal was in dispute in this case the Tribunal chose to hear the respondent’s evidence first.

Summary of Respondent’s Case:

The claimant was employed by the respondent company for 14 months as a barman. The employment was uneventful until Sunday 21^st June 2015. On that day the claimant and a bar manager had a disagreement about the claimant purportedly leaving the bar while there were dirty glasses to be cleaned and the bar was busy.

The Company Director (CD) gave evidence that at 6.30pm the Bar Manager came to him and said that the claimant had quit as he had reprimanded him for leaving dirty glasses while the bar was busy. The CD went to speak to him. The claimant told him that he was quitting and the CD felt that he knew the claimant enough to know that he was adamant about it. He told him to resolve the situation with the Bar Manager but he refused. The claimant did not discuss the issue with him again. The CD actively pursued a replacement who started the following week. It was reported to him that the claimant told staff and customers that he was leaving. When the CD gave the claimant his P45 and pay the claimant said he was not quitting, but the CD had already recruited his replacement. The claimant accepted that and walked out. The next communication concerned the claim to the Tribunal.

The CD accepted that he had not asked the claimant to reconsider. He was busy opening a new bar at the time. He had a good relationship with the claimant and had him earmarked for more responsibility. The claimant did not give his resignation in writing, which was not unusual in the industry according to the CD.

The Bar Manager (OM) gave evidence. At approximately 5.45pm on Sunday 21^st June 2015 he went to check the lounge where the claimant and another barman were working. The claimant was not present and the other barman was alone. It was very busy as the prices increase at 6pm so there is a rush at that time. There were trays of dirty glasses. He went upstairs and found the claimant sitting at a table counting his till. He told him not to leave the other barman alone when there were customers to serve and load of dirty glasses. The claimant said he wanted to quit so he told him to go to the CD. It was an ordinary conversation and one that he’d had with other barmen, but not the claimant, previously. He disputed that it was overly heated.

The claimant did not ask him about the roster during the week. He believed the claimant was serious about leaving. When discussing the roster with the CD they just presumed he was leaving and that if he did not want to be there he did not have to be.

A different bar manager (MF) gave evidence. After the previous witness spoke to the claimant he went to talk to him. The claimant said ‘I’m not having that’ in regard to what the Bar Manager had said to him. He said it didn’t matter how the claimant was spoken to he should not have left the bar as he had. The claimant finished counting his till and went back to help. He did not say anything about quitting. There was no mention of it again when he worked with the claimant during the following week.

A then barman (CM) gave evidence. He arrived at 5.45pm to help with the rush. The claimant left him on his own. After the manager had gone to speak to him the claimant came down again. The claimant said he had ‘handed in his notice’ and walked past. During the week a couple of customers said the claimant told them he was leaving.

The security man gave evidence. He came in on Thursday 25^th June 2015 to collect money. He spoke with the claimant who said ‘you heard I’m going?’ The claimant said he was just moving on. He wished him the best.

Summary of Claimant’s Case:

The claimant contended that he stayed in the bar until 6.20pm and then left to count his till. As he was going upstairs the Bar Manager followed him and in front of kitchen staff started shouting at him ‘who do you think you are leaving six trays of dirty glasses?’ The claimant was shocked at how he was spoken to. He returned and helped with the glasses. The CD came to him a short time later and the claimant said ‘I feel like resigning’. The CD told him to sleep on it which he did. The following day the claimant contended that he met the CD and said ‘that was all nonsense last night’, that he had thought about it and did not want to resign. The CD disputed that this conversation occurred. There was no discussion after that.

The claimant came into the bar the following Wednesday and Thursday to look for the roster for the following week, but was told it was not ready. On Friday when he came in the CD brought him to the cellar and gave him his outstanding pay and P45. He said that customers were telling him that the claimant was leaving. The CD said he would let the claimant know about any free positions in his new venture, but the claimant did not hear from him. It was agreed by both parties that they had had a good relationship throughout the employment.

The claimant had no issue with being asked to clean the glasses but take issue did with how he was spoken to. He told CM that he ‘felt like resigning’. He denied ever having spoken to security man. He did not have alternative employment lined up. He was supporting his partner and son.

Determination:

Having heard all the evidence the Tribunal is satisfied that this was a case of resignation rather that dismissal. The Tribunal notes the evidence of a number of witnesses and in particular the security man. The claimant has not established on facts that a dismissal occurred. Accordingly the claim is dismissed.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)