EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Marcin Rutkowski -claimant UD285/2013
Cafe Nestors Limited T/A Abrakebabra Ennis -respondent
Goodblend Catering Limited T/A Abrakebabra Ennis -respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. Hurley
Members: Mr. W. O'Carroll
Ms H. Murphy
heard this claim at Ennis on 18th July 2014
Claimant: Mr Conor Glendon, Conor Glendon, Conor Glendon & Co Solicitors,
Ard Na Greine, Clonroadmore, Ennis, Co Clare
Respondent: In Person
Summary of Evidence
The respondent is a fast food restaurant. The respondent’s busiest time of year is the Christmas period; enough revenue is generated to pay 3-4 months’ rent on the premises. The claimant worked for the respondent from the 22nd of September 2004. It is the respondent practise not to allow any annual leave during the Christmas period; the claimant was aware of this practise and had never taken annual leave at this time in his previous 8 years of employment. It was possible to take one day off but not the block Christmas period.
In July 2012 the claimant requested and was refused holidays for the Christmas period by his manager. He then made the same request to the respondent owner in November 2012 who also refused the holidays. The respondent owner was informed by other staff members that the claimant intended on going on holidays on the 17th of December 2012. This prompted a letter dated the 13th of December to the claimant confirming that his numerous holiday requests for the Christmas period were refused and ‘You will be rostered as normal over the Christmas period. If you fail to turn up for work over the period we will be accepting this as your resignation.’ The claimant received this letter with his wages; this is the normal mode of communication within the respondent, the respondent also sent a text to the claimant to inform him that there was a letter for him with his wages.
The claimant did not attend work after the 16th of December 2012. The respondent took his absence to mean he had left his employment. There was no further contact between the claimant and the respondent after the 16th of December 2012.
The claimant requested holidays for the Christmas period from his manager in July 2012. His initial request was refused but when he asked again in September 2012 he was given permission to take holidays from the 17th of December 2012 to the 2nd of January 2013. He booked his tickets in November 2012 and the respondent owner, manager and all the staff were aware that he was going home for Christmas.
When the claimant collected his wages on the 17th of December he received the letter dated the 13th of December 2012; he was flying home later that day. On his return the claimant attended the premises and spoke to his manager. The claimant’s manager informed him that there was no more work for him.
The claimant gave evidence of his loss and his attempts to mitigate his loss.
There is a clear conflict of evidence between the claimant and the respondent as to whether or not the claimant was told he had permission to take holidays at Christmas. These are mutually opposing a position that is difficult for the Tribunal to resolve.
Regardless of this quandary the Tribunal is of the view that the respondent did not behave reasonably in giving the claimant the letter stating ‘If you fail to turn up for work over the period we will be accepting this as your resignation’ with his wages on the 17th of December 2012.The Tribunal regards this as a deficit in procedures. The claimant did state he had no contract of employment which would have outlined the mutual obligations of both parties.
In all the circumstances the Tribunal is of the view that the dismissal was effected in a curt and unfair manner. The claim under the Unfair Dismissals Acts 1977 to 2007 succeeds and the claimant is awarded €5,000 in compensation.
The claimant is awarded €488.00 being the equivalent to 4 weeks’ pay in lieu of notice under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
No evidence was adduced under the Organisation of Working Time Act, 1997.
Sealed with the Seal of the
Employment Appeals Tribunal