EMPLOYMENT APPEALS TRIBUNAL
Jardel Leite Candido
Yupon Limited T/A Artizan Foods
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: Ms. P. McGrath BL
Members: Mr. J. O’Neill
Mr. M. O’Reilly
heard this case in Dublin on 10th November 2015
Mr. Kieran Falvey BL instructed by Ms. Emer Lyons, Aidan T. Stapleton & Co, Suite 236, The Capel Buildings, Mary's Abbey, Dublin 7
No legal representation
The determination of the Tribunal was as follows:-
The Tribunal has carefully considered the evidence adduced. The claimant had worked in the respondent company and specialised in home baking at which he excelled. The claimant had commenced employment in August of 2011 and developed his skills over the next few years. The claimant had an accident in March of 2014 which left him unable to return to the workplace for a five-week period. The claimant certified his absences with the appropriate sick certificates.
The claimant did not return to work on the 28th of April 2014 the day on which his medical certificate had expired. The claimant texted his supervisor later that day with an ambiguous message in which he requests an opportunity to have a discussion about his “situation and decisions that I take”. The claimant does not communicate again and does not return a number of phone calls placed by his supervisors.
Rightly or wrongly, the supervisor forms the impression that the claimant has decided to move on from this employment. The evidence is that a fellow employee and friend of the claimant told the supervisor of this fact.
On the 30th of April (some two days later) the supervisor sent a message to the claimant in which she clearly sets out that she understands he is leaving and, if this is the case, he should return his uniform.
The Tribunal notes that this message had no angry overtone and was a perfectly reasonable and even friendly message to send after two days of silence and after having been told by a third party that the claimant had formed the intention to leave the business.
The Tribunal cannot accept this message caused the level of shock and dismay the claimant has alleged and that, if a mistake had been made, the claimant had ample opportunity at this point in time to rectify the situation and clarify that it was his intention to return.
On balance the Tribunal finds there was no dismissal and that in fact the claimant simply abandoned his employment in favour of a new enterprise.
There was no unfair dismissal. There is no entitlement to notice. There is no outstanding claim for holiday pay.
Therefore, the claims under the Unfair Dismissals Acts, 1977 to 2007, the Minimum Notice and Terms of Employment Acts, 1973 to 2005, and under the Organisation of Working Time Act, 1997, all fail.
Sealed with the Seal of the
Employment Appeals Tribunal