UD656/2015

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD656/2015

CLAIM(S) OF:                                                                                             

Sanjay Balloo

– claimant                                                                               

Against

Itsa Bagel Limited

– respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Ms J. McGovern BL

Members:       Mr D. Peakin

                       Ms M. Maher

heard this claim at Dublin on 25th May 2016 and 12th July 2016

Representation:

_______________

Claimant(s):                 In person

Respondent(s):            Mr Michael McNamee BL, instructed by: Mr Aidan McGrath, Legal Advisor, Das Group, Europa House, Harcourt Street, Dublin 2

The determination of the Tribunal was as follows:-

Dismissal was in dispute in this case. From 2004 the claimant worked in a café situated in an art gallery in Dublin 2. He gave evidence that he was promoted to supervisor in 2012 and was on fulltime hours. In January 2014 a transfer of undertakings occurred to the respondent company. He contended that the company did not honour his fulltime hours or his status as supervisor.

In March 2014 he brought claims to the Rights Commissioner Service under the Protection of Employees on Transfer of Undertakings Regulations 2003 and the Terms of Employment (Information) Act 1994 to 2002. The Rights Commissioner found that the claimant had worked an average of 32 hours with the previous employer and this had continued with the respondent. His previous employer gave him a contract when he was appointed supervisor in 2012 and this was transferred to the respondent. He continued to carry out the duties listed in the contract with the respondent. The Rights Commissioner noted that the claimant’s contract was for part-time hours. The claimant’s claims failed. The claimant appealed these recommendations to the Tribunal. The Tribunal found that it did not have jurisdiction to hear the appeal under the Terms of Employment (Information) Act 1994 to 2002, due to the appeal being lodged out of time. The Tribunal found it had jurisdiction to hear the appeal under the Protection of Employees on Transfer of Undertakings Regulations 2003, but upheld the Rights Commissioner recommendation.

The claimant believed that other employees were accommodated in terms of annual leave applications and shift swaps where he was not. He contended that he had filled in the annual leave application forms but this was disputed. He did not accept that his swaps were refused due to the difference in roles as he believed this occurred in other instances.

He was requested to work at another site in an art gallery in Dublin 8 one day per week. He refused to do this as he had to commute from Sandyford and he believed it was not worth his time travelling for a four hour shift. On 31^st October 2014 a colleague who was socialising at the art gallery in Dublin 8 saw the claimant at about 2am working there for a different catering company. The claimant worked for that company in addition to the respondent. The claimant had notified the respondent that he was ill on the 30^th and 31^st October 2014. He also refused to work in Dublin 8 on the 4^th and 5^th November 2014. The claimant was invited to a meeting on Thursday 13^th November 2014 to discuss his unavailability for work, his refusal to work and a customer complaint about his attitude.

The claimant resigned via email on 6^th November 2014 stating that he had ‘been left with no other option’. The respondent asked the claimant to reconsider his resignation and to outline what he meant by ‘no other option’. He replied that some of the issues he was contending with were ‘stalking, discrimination, exploitation and many more’. The HR Manager sent the claimant a copy of the grievance procedure and asked the claimant to outline specific details. He accused the assistant operations manager of stalking him in the Dublin 8 art gallery, the operations manager attempting to photograph him while he worked at the Web Summit, and further of the café manager reporting him for ‘every single thing I do’. He reported feeling discriminated against for not being granted requested days off and not being accommodated in regard to earlier finish times for college. He believed the company was building up a file to dismiss him.

He attended a grievance meeting on Monday 8^th December 2014 where each of his ten grievances were heard. The claimant signed the minutes on that day to confirm that they were accurate. His grievances were not upheld and the reasons given in writing. At the Tribunal hearing he took issue with a number of points, but he did not raise them at the time of the grievance hearing. The claimant ‘just left’ his employment as he felt there was no point continuing.

The claimant has been self employed as a catering contractor since his resignation. On the first day of hearing the case was adjourned to allow the claimant time to produce documentation in regard to his earnings since the termination. On the second day he produced two handwritten sheets of profit and loss accounts. He did not produce any invoices cited during the hearing. He submitted a letter from a company he claimed he was contracted by, but this letter stated that he was an employee. He contended this was false and that he had thought it was a recommendation. He had continued studying at night and he contended that he had been refused social welfare as he was a student.

Following the claimant’s evidence the respondent applied for the case to be dismissed as he had not discharged the onus on him under the Act.

Determination:

The Tribunal carefully considered the evidence given in this claim. Constructive dismissal is defined in Section 1 of the Unfair Dismissals Act 1977 as:

““dismissal”, in relation to an employee, means—

(b)        the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

The burden of proof rests on the claimant to show that he had no choice but to leave his employment with the respondent. He must show the Tribunal that his resignation was not voluntary and that the conduct of his employer was so unreasonable that he had no choice but to resign. In all circumstances the Tribunal dismisses the claimant’s claim. During the course of the hearing the claimant was not consistent in his evidence and the documents provided to the Tribunal in relation to his alleged loss were not credible. A number of the issues raised in this hearing were determined in separate proceedings brought by the claimant and were therefore irrelevant to the within claim. On the balance of probabilities the claimant, in his evidence, has not discharged the burden of proving that he was constructively dismissed by the respondent.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)