EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Triglen Holdings Limited T/A Russell Court Hotel – appellant UD455/2013
V
Karinne Couronne – respondent
against the recommendation of the Rights Commissioner in the case of:
Karinne Couronne
V
Triglen Holdings Limited T/A Russell Court Hotel
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms O. Madden BL
Members: Mr J. O'Neill
Mr M. O'Reilly
heard this appeal at Dublin on 1st August 2014
Representation:
_______________
Appellant(s): Mr Gerry McGreevy
Brady McGreevey Walsh
21 Upper Fitzwilliam Street, Dublin 2
Respondent(s) : In person
This case came before the Tribunal by way of an employer appealing the recommendation of a Rights Commissioner (ref: r-125007-ud-12/JW) under the Unfair Dismissals Acts, 1977 to 2007.
The determination of the Tribunal was as follows:-
While dismissal was in dispute in this case it was decided that the appellant company would give evidence first.
Summary of Appellant’s Case:
The Managing Director gave evidence on behalf of the appellant company, which operates a hotel business. The respondent (employee) worked in the hotel kitchen from 2008. There was no issue with the respondent’s work. She was in Ireland on a student visa which provided her eligibility to work 20 hours per week. She is a Mauritian national.
On 30th June 2012 the respondent had an argument with a fellow employee where she alleged that the employee, a hotel porter, had used abusive language towards her. The employees in question had a meeting with the hotel’s General Manager. He decided that there was 50/50 responsibility for the argument and issued both with a verbal warning. The respondent was unhappy with the warning and appealed to the Managing Director. She wanted the other employee dismissed. He decided to investigate and to avoid the two employees discussing the issue with other employees he suspended the respondent and the hotel porter for two and four days respectively with pay. He arranged to meet with them again on 13th June 2012.
The hotel was inspected by immigration officials on 12th June 2012. They had come to inspect the housekeeping section and asked for the week’s clocking records of all the hotel’s employees. The inspectors returned the following day and requested to meet with four named members of staff, two of whom were the respondent and the hotel porter. The Managing Director informed the inspector about the meeting scheduled for the next day.
The following day the Managing Director met with the respondent and the hotel porter as scheduled and was holding a joint meeting with them concerning the incident when they were interrupted due to the arrival of the immigration inspector. The respondent disputed this version of events. No decision was ever reached on the incident in question due to the interruption. The inspector requested individual meetings with the employees. The Managing Director was instructed not to employ the employees until he had concluded his investigation. The respondent was instructed to attend a meeting with the immigration inspector the following Tuesday.
After the inspector left he spoke with the respondent who asked for his advice. He advised her to attend the immigration meeting. She told him that she hated living in Ireland anyway and intended to move to Holland. She requested her P45 and holiday pay. He said she could collect it the following Tuesday (the normal pay day at the hotel). He said there was a job there for her pending the outcome of the immigration meeting. The hotel porter left that day also and sought his P45. The following Tuesday the respondent collected her wages (two weeks’ pay in total, she was paid up until the previous Friday) and P45. He did not hear from her that day or after until the unfair dismissals claim was made to the Rights Commissioners.
Summary of Respondent’s Case:
The respondent gave evidence that she had had ongoing problems of bullying and verbal abuse from the hotel porter. She said that she had informed the Managing Director of this issue and he said to come back to her if it happened again. This was disputed by the Managing Director who denied having any previous knowledge of the issue. On the morning of the incident the respondent was serving breakfast when one of the employees from the night before asked to be served a meal, which was against hotel policy. She refused and he went off. He returned and told her that he had asked the hotel porter what her name was and he said it was ‘bitch’. The hotel porter arrived and a verbal argument ensued.
She was dissatisfied that the General Manager had judged her to be 50% responsible for the argument and appealed to the Managing Director. After being suspended she went to attend the prearranged meeting with the Managing Director. While she was waiting in the beer garden she could see into the meeting room and saw the Managing Director, the hotel porter and a man she later discovered was an immigration inspector. They had a meeting for 20 minutes. As they left she was called into the meeting room where the Managing Director was still sitting. Immediately after the immigration inspector came in. He told her that she was not allowed to work there pending a meeting with him the following Tuesday.
She denied having asked for her P45 or suggesting that she intended to leave the country. She had only asked if she would get paid. By this she meant until after the immigration meeting. The Managing Director simply said ‘thanks’ and she left.
At the immigration meeting on 17th July 2012 the inspector told her that she could no longer work at the hotel. She had been working 40 hours per week. She was also working in a café for 10 hours per week which the inspector was unaware of. He offered her a deal which was if she went home to her country he would leave her record clear. She refused as her visa was valid until November 2012. She said she would book a flight when her visa expired.
She went to the hotel to collect her wages and found her P45 dated 15th July 2012. She did not contact the Managing Director. She made an application for unfair dismissal to the Rights Commissioner Service on 2nd August 2012.
She continued to work in her other job and her hours increased to 40 per week. She obtained an extension on her visa until May 2013. She then left the country. She did not work after that date nor did she seek work. The respondent attended the hearing on a visiting visa and was currently living in the UK.
Determination:
The evidence was in dispute in this case but on balance the Tribunal prefers the evidence of the employer that the employee voluntarily left her employment. By her own evidence there was no attempt to contact the Managing Director about the status of her employment after receiving the P45. Accordingly the appeal succeeds and the Tribunal upsets the decision of the Rights Commissioner (ref: r-125007-ud-12/JW).
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)