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In the recently published case of David Fagan v Teefey Transport Limited and P&G Freight Forwarding Limited Case UD220/2011 the Employment Appeals Tribunal was asked to consider whether the claimant had been unfairly dismissed and which respondent was his employer.

The claimant in this case had thirty year’s experience as a truck driver and commenced employment with the first named respondent in October 2008. In late 2009 the first named respondent set up operations in the UK and the claimant volunteered for a new role there and was transferred to the UK in December 2009. The first named respondent contended that when the claimant offered to transfer from the role of driver to warehouse manager in February 2010, he transferred to the employment of the second named respondent. The claimant contended that he was unaware his employment had transferred from the first to the second named respondent. The first named respondent subsequently contended that the claimant’s work performance deteriorated from February 2010 however the claimant denied receiving any warnings.

In July 2010, whilst unloading a sheet of glass, it fell and smashed and it was alleged the first named respondent had telephoned the claimant cursing and telling him to “get on the next truck and return to Ireland”. The claimant understood that he had been fired. A few days later the first named respondent telephoned another employee and asked if the claimant was there and to tell him to get the next available transport back to Ireland. After a few weeks the claimant telephoned the first named respondent seeking payment for expenses incurred and a dispute arose as to whether the first named respondent had asked the claimant for a letter of resignation or whether the claimant demanded a Form P45. The first named respondent contended that the claimant wanted to leave and was not dismissed but had in fact terminated his own employment.

Determination

The Tribunal determined firstly that the claimant was employed “in reality” by the first named respondent and had the requisite service to bring a claim under the Unfair Dismissals Acts due to the following factors:

1. There had not been any discussion with the claimant nor had any prior explanation or notification been given to him of the proposed transfer to the second named defendant.
2. The claimant was not provided with Form P45 at the time of transfer.
3. The claimant had no dealings with the second named respondent.
4. The first named respondent had told the claimant to get out and had signed the entry of appearance to the unfair dismissal claim.
5. All other employees in the warehouse in the UK worked with the first named respondent.

The Tribunal then looked at the question of whether there had been a dismissal in July 2010. The Tribunal referred to the phone call from the defendant to the claimant where he was told to “get out of there and get the first truck back to Ireland”. The Tribunal noted that when “words used are ambiguous, the Tribunal will look to surrounding circumstances to determine whether the construction put by the employee on the words used by the employer is reasonable”.

The Tribunal noted that following the claimant’s return to Ireland, the first named respondent did not contact the claimant when he did not show for work and the subsequent meeting was at the claimant’s instigation. In conclusion the Tribunal held that the first named defendant did dismiss the claimant and the subsequent letter from the first named respondent’s solicitors stated that they had no option but to terminate the claimant’s employment.

The claimant was awarded €50,000 under the Unfair Dismissal Acts and one week’s notice under the Minimum Notice Acts.

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