EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD280/2014
CLAIM OF:
Krystian Korycinski
against
G4S Secure Solutions (Ireland) Limited
Under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony B.L.
Members: Mr. D. Hegarty
Ms. P. Doyle
heard this claim at Cork on 7th April 2015
Representation:
Claimant:
Donal Daly Solicitor, Florence Buildings, 1a Washington Street, Cork
Respondent:
Mr. Tim O'Connell, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
Dismissal was in dispute in this case.
Summary of Evidence
The claimant commenced employment as a security guard with the former owner of the respondent company in December 2007 and was transferred to the respondent under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. The respondent provides a security service to a number of clients on different sites but the claimant had been assigned to the same site, a shopping centre, since his commencement in the business.
The claimant had booked annual leave from 13th June 2013 to 27th June 2013 and again from 17th July 2013 to 1st August 2013 as he was attending two weddings in Poland. During the week preceding 13th June 2013 the claimant was informed by the client’s site manager that he had received complaints about him and that this would be his last week working in the centre.
Later that day the claimant contacted the respondent’s contracts manager (CM) who confirmed to him that he would not be working on that site after his annual leave and that he would contact him later about hours. Before he went on holidays the claimant again contacted CM saying he would contact him on his return from holidays but CM told him not to and that he would make contact with him.
About a week before his second holiday was due to commence the respondent’s night service manager (NM) made contact and he was ultimately offered a night’s work but he declined as he was sun burned. He confirmed his return date after the second holiday to NM. The position of NM was that although this was an offer of one night’s work he later had more work available.
CM told the Tribunal that it was his intention to offer the claimant work on an alternative site on his return from his holidays. To this end CM attempted to contact the claimant a number of times by phone without success and he also wrote to him on 21st August 2013 and 11th September 2013; these letters were produced in evidence. In his first letter CM requested an explanation from the claimant for his absence and asked him to make contact; in the latter letter CM indicated to the claimant that if they had not heard from him by 20th September 2013 they would consider that he had no further interest in continuing with the respondent and would issue his P45. There was no response to these letters. The claimant’s position was that he had not received any correspondence form CM and the only contact he had received form him was a message he had left on his mobile phone on 16th September 2013, asking to let him know if he was back from holidays. The claimant did not reply as by this time he did not want to go back: he had been treated badly and furthermore his solicitor was dealing with the matter. By letter dated 17th September 2013 the claimant’s solicitor informed the respondent that they had been instructed to institute an unfair dismissal claim on behalf of the claimant.
Determination:
The respondent denied dismissing the claimant. It was the respondent’s position that they had work available for the claimant on his return from holidays but despite their best efforts they failed to make contact with him. The claimant’s position was that, due to the respondent’s failure to contact him in respect of returning to work after his holidays, he had been unfairly dismissed by the respondent.
The Tribunal accepts the claimant’s evidence that prior to going on leave CM informed him that he would contact him about hours on his return and that in their final conversation he told the claimant not to contact him.
Whilst it was common case that CM left a message for the claimant on his phone there is a dispute as to whether CM had made the earlier four calls to the claimant’s mobile or sent the letters of 21st August 2013 and 11th September 2013. The claimant’s evidence was that he had not received the letters and had no recollection of receiving any missed calls from CM between 8 August 2013 and 10 September 2013. In light of the respondent’s failure to comply with the Tribunal’s request to furnish its phone records for the period 8 August to 10 September 2013 and further in light of the claimant’s response to NM when he had phoned him in late July the Tribunal on the balance of probability finds that the respondent’s first attempt to contact the claimant was on 16 September 2013 by which time the claimant had made up his mind that he did not want to return to the respondent. The Tribunal finds that in the circumstances outlined it was reasonable for the claimant to consider that he been dismissed by the respondent.
Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds. The Tribunal awards the claimant compensation in the sum of €9, 000.00 under the Acts.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)