EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1052/2015
MN468/2015
CLAIMS OF:
Tamas Kiraly,
-Claimant
against
Base Pizza Ballsbridge Limited
-Respondent
Base Pizza Terenure Limited
-Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary B L
Members: Mr. T. O'Grady
Mr C. Ryan
heard this claim at Dublin on 7th November 2016
Representation:
Claimant: Mr. Leo Costello, Rathmines CIC, Dublin 246 Citizens
Information, 7 Wynnefield Road, Rathmines, Dublin 6
Respondent: Ms Anne O'Connell, Sherwin O'Riordan, Solicitors,
74 Pembroke Road, Dublin 4
Background:
Dismissal is in dispute in this case. The Tribunal heard evidence from the Claimant first.
Claimant’s case:
The Claimant commenced working for the Respondent in September 2011 as a chef working in the kitchens working primarily making pizzas. He worked 45 hours a week and the restaurant was open seven days a week. Initially he worked Sundays if required.
Several months later he was promoted to team leader. He was responsible for staff training and Health and Safety matters. When he was promoted to team leader he was not rostered to work Sundays as a reward for being promoted.
In January 2015 he attended a meeting with SC the director and MC the operations manager and was promoted to production manager. (The promotion did not commence until a later time). He asked them if he would not have to work on Sundays and they agreed to this condition, i.e. that he would accept the position if he did not have to work Sundays. He started in the new position and they located to a new production building to service the restaurants.
In the position as production manager he was responsible for staff training, health and safety, ordering stock, stock management also preparing food. He was only rostered to work Monday to Saturday. Other employees did work on Sunday. His days off were Sunday and Monday.
On or about 08th August 2015 he went on holidays, to Hungary and Romania. He returned on 17th August 2015. On 21st August he received an e-mail from SC who is the managing director to tell him that he was needed to work the following two Sundays. The e-mail of 21st August 2015 was opened to the Tribunal. He then finished his work for that day and went to speak to SC to ask him why there was a change. SC was out of the office, Ms S who was in the office told him that SC was out at lunch. She then asked him a strange question; she asked him if he still worked there. He thought that this was strange and told her that he was and asked her why. Ms S is an office employee and is a relative of SC.
Later on he spoke to SC and he told him that he had seen the e-mail and the rota and asked him why there was a change to his rota and that he was only back from his holidays and that it was short notice as this was Friday and the rota change was for Sunday. SC told him that if he could not work those Sundays then “just don’t come in at all”. He asked SC if he was allowed to work his notice. He had tried to discuss the Sunday work in question but SC rejected this. He tried to speak but SC kept shouting expletives at him. He tried to speak again but SC kept shouting at him and pointed at the door and told him to get out. He left and about twenty minutes later he received a test message from SC which was opened to the Tribunal. Three days later he got an e-mail from SC which was opened to the Tribunal:
“I tried calling you a number of times yesterday. I am emailing you following to our meeting on Friday the 21st of August in my office where you handed in your resignation. I would like you to reconsider your resignation as it seemed to be given in the heat of the moment.
On Friday I asked you as manager of the CPU to work the next two Sundays due to a shortage of staff and experience in the production unit on those days. You were informed that you would have the Monday and Tuesday of those weeks off in lieu of working the Sunday. This is in line with our agreement that you would only be required to work on Sundays as and when the business needed you to do so when short of experienced staff.
However, to my utter shock, you refused to work the two Sundays and resigned your position with the company. While I accepted your resignation at the time and told you that you would be paid in lieu of your notice, I now hope that you have reconsidered your position and that you will withdraw your resignation. Please note that you will still be required to work Sundays as and when the company requires you to do so in line with our agreement.
I should be grateful if you would email me before midday on Thursday 27 August 2015 and either withdraw your resignation or confirm your intention to resign.
If you confirm your intention to resign, I will arrange for payment in lieu of your notice entitlement less the over payment that was made to you during your annual leave.”
He responded by e-mail dated 02 September 2015:
“I did not resign or offer my resignation on 21/08/15 or at any other time. I was dismissed when you told me to leave and don’t come back, when you used totally inappropriate language. I was dismissed on 21/08/15, and I am taking advice on the matter and I am considering my options. Please send me the relevant documents (e.g P45) as soon as possible.”
The Claimant was asked by his representative if he resigned and he stated that he did not resign from his job. He did not talk to SC to compromise because he did not get a chance to talk, he was completely rejected. He did not expect to lose his job.
The Claimant gave evidence as to his loss.
Respondent’s case:
The Tribunal heard evidence from SC, the managing director of the Respondent. He explained that he started the business in 2008. It is a high quality business, bridgestone awarded. They use wood fire ovens and 00 grade flour. He hired the Claimant in 2008. He commenced part time and got on extremely well, he was enthusiastic, experienced and by far their best chef. Soon after he worked on a full time basis. some six to seven months later they offered him the team leader position in the kitchen working with the store manager. He was excellent.
The witness explained that the Claimant maintained that Sunday business was quiet but he disagreed as Fridays Saturdays and Sundays were their busiest times.
In February 2015 they moved their new production unit to a new area. The Claimant was again promoted this time to production manager. The production unit was responsible for producing all of the food. However because the Claimant was so good at making pizzas he was to do some “store” work such as checking dough mixes and sauces and checking staff.
At one point in time previously he had a conversation with the Claimant regarding rosters. The Claimant had asked him specifically if he would do his best to give him Saturdays and Sundays off. He told the Claimant that they would do their best to do so but that if he was needed to come in at short notice he would have to and that was the way it was, it was to do with the needs of the business and if he was needed he had to come into work on the weekend.
The witness explained that regarding the rotas it was he who approved the rotas. The witness gave extensive evidence as to the rotas and managers and the operations manager etc. he explained that the Claimant was needed because he had looked at the rota and saw that the lack of experience of those rostered and that they would not be able to produce to the required standard. Regarding the two Sundays in question, “there would be a big hole on the rota for those two Sundays”. He felt that the Claimant was needed to be present on those two Sundays.
He made the changes to the rota and made the changes and showed it to the Claimant. The Claimant arrived and asked to speak to him about the rota and he agreed. The Claimant told him that he would not be able to work Sundays and said that they had an arrangement. He said that he was aware of the arrangement but reminded him of other matters. The conversation continued and he asked the Claimant why he could / would not work the days and the Claimant told him that it was because he had plans. He told the Claimant that it was not good enough he told the Claimant that he needed to be present that there were two new staff members on duty and would he not be concerned about that. The Claimant eventually told him that he was resigning. He told the Claimant that he could not believe it that he was resigning that he was walking out of a good job. He said to the Claimant that he could shorten the hours to 8.00 to 2.00.
The witness explained that he felt, let down, frustrated and he got annoyed. He then asked the Claimant if he was going to work the Sundays and the Claimant told him no. He then told the Claimant that there was no point and things got heated. He got very annoyed with the Claimant and he did ask him to leave.
He did try to contact the Claimant afterwards. He phoned him a number of times and sent him an e-mail. He felt that they could sort it out. He did get a response to the e-mail and he was surprised by the content as the Claimant had resigned. He did not dismiss the Claimant he had no reason to dismiss the Claimant.
The Tribunal heard evidence from SmcC. She explained that she was sitting outside of the office when she heard the Claimant say that he was going to leave; that he was not going to work if he had to work Sundays and he was going to leave the company.
Under cross-examination she was asked if she mentioned to the Claimant if he was still working there and she answered that she did not.
Determination:
The Tribunal having heard the evidence adduced prefer the evidence of the Claimant because it is more consistent with the manner in which he gave his evidence to the Tribunal and the Respondent’s evidence did not appear to be as reliable. Tribunal. As a consequence the Tribunal have decided that the Claimant was unfairly dismissed and award him the sum of €15,000.00 under the Unfair Dismissals Acts, 1977 to 2007, taking into account the Claimant’s efforts to seek work and the type of work he was seeking.
The claim under the Minimum Notice and Terms of Employment Acts, 1973 To 2005 was withdrawn prior.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)