EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD752/2014
TE55/2014
APPEAL(S) OF:
Mihai Stefan Brindusoiu
against the recommendation of the Rights Commissioner in the case of:
Favaudon & Forkan Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
TERMS OF EMPLOYMENT (INFORMATION) ACTS 1994 TO 2012
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. C. Corcoran BL
Members: Mr. D. Peakin
Mr. A. Butler
heard this appeal in Dublin on 15 July 2015
Representation:
_______________
Appellant(s):
No legal or trade union representation
Respondent(s):
No legal representation
This case came to the Tribunal as an appeal by the employee/appellant against Rights Commissioner Recommendation r-135949-te-13/JT under the Terms of Employment (Information) Acts, 1994 and 2001, and against Rights Commissioner Recommendation r-138458-ud-13/JT under the Unfair Dismissals Acts, 1977 to 2007. The Rights Commissioner found that the appellant had signed a document with the respondent agreeing all his entitlements and had received a payment for these. Further the Rights Commissioner found that the appellant did not have one year’s continuous service as required by unfair dismissals legislation.
In relation to the appeal under the Terms of Employment and (Information) Acts 1977 to 2012 the appellant said that he had never received his terms of employment and that the employer had accepted this. In relation to the Unfair Dismissals Acts 1977 to 2007 also argued that he did indeed have the one year’s service required by unfair dismissals legislation and that the respondent had dismissed him unfairly.
In rebuttal the respondent contended that the appellant had never been dismissed but had chosen to return to Romania for personal reasons requesting all monies due to him which the respondent duly paid to the appellant’s signed satisfaction.
At the Tribunal hearing the appellant addressed the issue of service by saying that (his service having begun on 2 May 2012) he had got sick a year later, had gone to hospital but had not gained access and had only got a sick cert the next day.
The respondent submitted that the appellant’s P45 had given start and end dates of employment as 2 May 2012 to 1 May 2013. The respondent accepted that this was the true position.
The Respondent’s Testimony:
The respondent stated that the appellant, wished to go back to Romania, and had wanted all money due to him and had signed therefor. The appellant had left of his own volition. The appellant had been turning up late but the respondent had not dismissed him. A member of the appellant’s family had been sick.
Explaining his letter stating that he would reinstate the appellant when he returned, provided he gave him an approximate date of his return. This was not furnished to him by the appellant.
The Appellant’s Testimony:
The appellant stated that, when he was sick, he had wanted to go to hospital and to his GP but this was not possible until the next day.
The appellant told the Tribunal that he told the respondent that he knew someone who could take his place, on a temporary basis. The respondent had started to make jokes at the appellant’s expense.
The appellant stated that he had suffered anxiety and that he told the respondent that he could be off work for up to three weeks. The appellant denied that he had gone to Romania or that he had told the respondent that he would do so. He did admit to cashing the respondent’s cheque without delay. When he had told the respondent that he could be out for up to three weeks the respondent stated that he could work somewhere else and that he could not wait that long.
The respondent admitted that he had not given the appellant a copy of written terms and conditions of his contract.
The appellant told the Tribunal that he had merely got sick and that the respondent had made up the story of his going back to Romania.
Determination:
As a preliminary matter, under the relevant provisions of the Interpretation Acts as amended and the evidence as adduced, the Tribunal finds that the appellant has the requisite service as provided for under the Unfair Dismissals Acts 1977 as amended.
The Tribunal allows the appeal against Rights Commissioner Recommendation r-135949-te-13/JT under the Terms of Employment (Information) Acts, 1994 and 2001, given that the respondent did not dispute the appellant’s assertion that his terms of employment had never been provided to him. The Tribunal awards the appellant the sum of €500.00 under the said legislation.
Regarding the appeal against Rights Commissioner Recommendation r-138458-ud-13/JT under the Unfair Dismissals Acts, 1977 to 2007, as stated, the Tribunal rules in favour of the appellant in finding that he did have the requisite one year’s service to bring an action under the said legislation but, having heard testimony from the appellant, and from the respondent, the Tribunal was not satisfied that there was evidence of a dismissal or termination of the appellant’s employment by the respondent. Accordingly the appeal against Rights Commissioner Recommendation r-138458-ud-13/JT under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)