EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD340/2015
MN164/2015
OWT66/2015
CLAIM OF:
Raffaele Papa
against
Bellchime Limited
t/a Ristorante Rossini
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
ORGANISATION OF WORKING TIME ACT 1997
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms.K.T. O'Mahony B.L.
Members: Mr D. Hegarty
Mr J. Flavin
heard this claim at Cork on 10 May 2016 and 25 August 2016
Representation:
Claimant: Mr Cian Moriarty, Fachtna O'Driscoll, Solicitors, 9 South Malls, Cork
Respondent : John Boylan, B D M Boylan Solicitors, Clarkes Bridge House, Hanover Street, Cork
The determination of the Tribunal was as follows:
Dismissal was in dispute in this case.
Summary of Evidence.
The respondent owns and runs a restaurant in Cork city. The restaurant is managed by the son (TR) and his mother (PR) and his sister (KR) are also involved in the business.0 The family and the claimant have a long acquaintance, having met over several years when the family were on foreign holidays. Believing he was vulnerable, the family “had taken him under its wings” and invited him to Ireland where after a trial period he commenced employment as a waiter in their restaurant in mid-September 2013. The family’s position was that the claimant was treated as a family member. He rented an apartment above the restaurant premises for at least the latter part of his employment with the respondent. There was just a few years age difference between TR and the claimant.
TR’s evidence was that around mid-2014 Voxpro approached him looking for Italian speakers and he arranged an interview for the claimant. The claimant was delighted. He left and requested his P45 from the respondent. TR’s evidence was that around 85% of the Italian members of staff move on after six to eight months to call centres or other employments. The claimant was not successful in the interview and seven to ten days later TR called him back to work by sending him a text telling him to report for work at a particular hour that day. The claimant agreed that TR had initially mentioned Voxpro to him. However, the claimant’s position was that TR had already dismissed him and a friend at the end of a shift on 15 July 2014.
After Christmas 2014 and into early January 2015 KR was managing the restaurant as TR was on a foreign holiday. TR prepares the rosters two weeks in advance. The claimant “did not show” for work on 6 January 2015. On 9 & 10 January 2015 the claimant did not shown for work and a member of staff told her his grandmother in Italy had died. KR thought he had gone to the funeral in Italy but she subsequently realised he had not. She had “treated him like a brother” and made allowances for his personality. She had had “no problems with him”.
TR told the Tribunal that he and the claimant had been friends and that the claimant was like an older brother. TR returned from holiday on 12 January 2015. His evidence was that the claimant did report for work on 15 January 2015 but failed to do so on several occasions over the two weeks following his return from holiday next two weeks. TR did not invoke the disciplinary procedure as they had been friends and the claimant needed time to grieve after his grandmother’s death. He did not send the claimant his P45. He did not and would not dismiss the claimant. PR confirmed that there was no discussion about or intention to dismiss the claimant.
The claimant’s position was that he turned up for work on 20 January 2015 but TR told him there was no more work for him. The claimant denied that he voluntarily left his job and maintained he had been dismissed. Losing his job meant that he was without work or a place to stay. A friend of the claimant gave evidence that the claimant contacted him on 20 January 2015 and that as he was without money and a place to stay he took him in for around two weeks.
It was common case that the relationship between TR and the claimant deteriorated and became acrimonious from early February 2015.
The claimant maintained he was never given payslips during his time with respondent. He also asserted that he took sixteen leave days for which he was not remunerated. In addition he said that the company had never paid him double time for working public holidays. Notwithstanding this manner of treatment the claimant told the Tribunal that he gave his heart to his work and always showed up when required.
Determination:
Dismissal was in dispute in this case. Having considered the evidence, the Tribunal, on the balance of probability, finds that the claimant left his employment with the respondent in July 2014. Because of this break the claimant does not have the one year’s continuous service between then and the date of the termination of his employment in 2015, .as required by section 2(1)(a) of the Unfair Dismissals Acts 1977 to 2007. Thus, as the Tribunal has no jurisdiction to hear the claim under the Acts.
The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, fails because the Tribunal was not satisfied that it was established that there had been a dismissal, fair or otherwise.
The claim under the Organisation of Working Time Acts, 1997, succeeds. The Tribunal awards the claimant the sum of €944.58 (this amount being equivalent to 2.8 weeks’ gross pay at €337.35 per week) in respect of public (and other) holiday pay adjudged to be due to the claimant.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)