EMPLOYMENT APPEALS TRIBUNAL
Sahin Akkoyun & Suat Salik T/A Capital Kebab House
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B.L.
Members: Mr T. Gill
Ms H. Murphy
heard this claim at Galway on 14th July 2016 and 14th October 2016
Mr Tom O'Regan, Tom O'Regan & Co Solicitors, Licakadoon House, 88 Lower Salthill, Galway
Mr David Higgins, Berwick, Solicitors, 16 Eyre Square, Galway
The respondent owns and operates a Kebab Shop and the claimant was employed as a General Operative from 2012 until 16th January 2015.
There was an incident in the shop on 16th January 2015 which was captured on CCTV. This footage was shown to the Tribunal and the witnesses gave evidence in respect of this footage. It was common case that the claimant was attacked by another employee.
The then co-owner of the business (SS) also appeared in the footage and was seen restraining the other employee and pulling him away from the claimant. SS is no longer involved in the business and did not attend the hearing.
The claimant contended that SS had dismissed him as a result of the incident on 16th January 2015 and a letter signed by the remaining owner (SA) was given to the Tribunal which stated that the claimant had been dismissed. However SA told the Tribunal that this letter had only been given to the claimant to facilitate him claiming Job Seekers Benefit and that in fact the claimant had resigned of his own volition.
SA said that he had spoken to the other employee (M) involved in the incident and asked him why he had attacked the claimant. M told SA that the claimant had “swore about his (M’s) wife” and SA told M that he was right. SA did not dismiss M.
Having carefully considered the evidence adduced at the hearing the Tribunal is satisfied that the claimant was unfairly dismissed from his employment with the respondent.
It was the evidence of the claimant that he was dismissed by one of the owners of the respondent following an incident whereupon the claimant was attacked by another employee. The owner in question is no longer involved in the business and did not appear before the Tribunal. Therefore the claimant’s evidence in relation to this alleged dismissal was largely uncontested.
Although the owner who did give evidence (SA) alleged that he was told by his former business partner that he claimant was not dismissed it is difficult for the Tribunal to reconcile this with the fact that SA then gave a letter to the claimant stating that he had been dismissed.
The CCTV footage shown to the Tribunal clearly shows the claimant being attacked by his colleague and in all the circumstances the Tribunal must find that the claimant was unfairly dismissed.
The appropriate redress is compensation for loss. The claimant has been unavailable for work and claiming Illness Benefit since his dismissal and therefore has not made efforts to mitigate his loss. However in accordance with section 7(c)(ii) of the Unfair Dismissals (Amendment) Act, 1993 the Tribunal awards the claimant €2,320.00, this being just and equitable in all the circumstances.
With regard to the claim for minimum notice the Tribunal finds that the claimant suffered no loss as a result of not being paid this as he was unavailable for work during the period for which he is claiming. Therefore the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 fails.
Sealed with the Seal of the
Employment Appeals Tribunal