EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
- claimant WT819/2011
EMPLOYER - respondent
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr J. Browne
Mr F. Dorgan
heard this claim at Waterford on 18th June 2013 and 16th September 2013.
The determination of the Tribunal was as follows:-
Dismissal as a fact is in dispute.
The respondent is a football club located in the south east of Ireland. The claimant previously worked for a soccer club in the south of Ireland with SH. That club closed down and SH took up a new position as Manager with the respondent. SH negotiated the same terms and conditions of employment for the claimant that he held previously. The claimant commenced employment on 20th December 2008. His role was of First Assistant Coach andentailed training the team. When Assistant Coach RM left the club the claimant subsequently took over his role. The football season runs from March to end of October. The claimant was paid during these months. If he worked outside of these months he was paid expenses.
The claimant got permission to have Saturday 28th May 2011 off and had cleared this with SH some days in advance. SH was to pick up his wages. Players and Coaches are usually paid after the conclusion of matches. Matches are usually played on Friday evenings. On Thursday 26th May 2011 following a defeat of the respondent’s team SH was called to a meeting. No one had been paid after that match. It was at this meeting that SH was informed that his employment was being terminated. The meeting adjourned and SH was invited to a second meeting on Saturday, 28th May 2011. The claimant contended he had no knowledge of SH sending a text on 27th May 2011 to the committee asking that both SH’s and the claimant’s wages be ready for collection the following day.
On 28th May 2011 SH drove the company van to the meeting and asked the claimant to drive his car so he could have a lift home.
The meeting on 28th May 2011 lasted about 45 minutes and the claimant waited in the bar area. After the meeting concluded JS, a committee member, came out and shook the claimant’s hand and said ‘sorry that things have to end this way’. The claimant’s understanding at this time was that his employment had been terminated. He felt gutted and distraught. He then drove home with SH.
En route the claimant’s daughter telephoned him telling him that she had heard on radio that he had been sacked.
The respondent issued a press release on 28th May 2011. The press release said that following a meeting with SH the Board had decided to terminate his contract. The respondent also in the press release thanked SH and the claimant for their efforts over the past two and half years and wished them both well. Three existing staff were to take over the team in a caretaker capacity.
On Monday 30th May 2011 the claimant telephoned committee member MD and asked to be paid up to the end of the season. MD said he would discuss this with the committee and get back to the claimant. The claimant understood that the committee members met on Monday evenings.
The claimant again telephoned MD the following day being 31st May 2011. He then emailed the committee members and in the absence of a financial package he said he would have no option but to seek legal advice.
The following day, 1st June 2011, RS the secretary of the Club indicated in an email to the claimant that SH had texted the club saying that both SH and the claimant were walking away and asked for their wages to be ready by Saturday, 28th May 2011. The club interpreted this to mean they were both terminating their employment. The club also said that should that not be the case they expected the claimant to attend training on Thursday and to attend Friday’s game.
The claimant contended that he never walked away from his job. He had put his heart and soul into the club.
The claimant secured two to three days work a week in or around November 2011. He had previously held this position prior to commencing his employment with the respondent.
There were two witnesses for the respondent, both were Management Committee Members, and both said that they believed that when SH left he took the claimant with him. SH had brought the claimant to the club as a coach and the witnesses perceived it to be reasonable that the claimant had left once SH’s contract was terminated. However when the claimant sent an e-mail to the respondent informing it that he had not resigned the Club Secretary replied to him by e-mail stating that his job was still open to him and that if he had not resigned then he should turn up for work as usual on that Thursday. The claimant’s pay cheque was ready for collection as usual the following Friday and he was to be paid his full wages without any deduction for time not worked.
The respondent said that the claimant was not dismissed by the respondent but he chose not to turn up for work and therefore the respondent took it that he had resigned his position as coach.
Having considered the evidence adduced at the hearing the Tribunal finds that when the respondent terminated the manager’s contract they assumed that the claimant would leave with him. The Tribunal further finds that the claimant assumed that he too was being let go. The Tribunal finds in the circumstances that it was reasonable for the parties to make this assumption. However, as soon as the respondent became aware that their assumption was wrong they told the claimant unequivocally that he could continue working with the respondent. Accordingly, the claim under the Unfair Dismissals Acts 1977-2007 fails.
It follows that the claim under the Minimum Notice and Terms of Employment Acts 1973 to 2005 relating to notice fails.
The Tribunal awards the claimant an amount of €200.00 in respect of one week’s holidays under the Organisation of Working Time Act 1997.
Sealed with the Seal of the
Employment Appeals Tribunal