The claimant was a truck driver of some 30 years' experience. The first employer respondent was a sole trader who formed a limited company (the second respondent) after receiving financial advice, following some financial difficulties. The claimant made deliveries to England and became warehouse manager in February 2010. The respondent said he changed at that point from the employ of the first to the second respondent, although little else seemed to change for the claimant except the name of the respondent on his pay slip. 

The first respondent's evidence was that the claimant’s work performance deteriorated from February 2010. He was spoken to but received no written warnings. The claimant denied receiving any warnings. 

In July 2010, a forklift truck operated by the claimant overturned and a sheet of glass was broken. The claimant said the first respondent swore at him over the phone from Ireland and told him to take a truck back to Ireland. A dispute arose over payment for diesel v the cost of the damaged glass. A dispute also arose as to whether the employee left or was dismissed.

The EAT concluded that the transfer to one employer to another some five months before the employment contract was terminated did not take place - the claimant received no P45, and the first respondent's wife and sister were directors of the limited company. All the other employees working in the warehouse in the UK were employed by the first respondent. The claimant therefore had the requisite service to make a claim under the Unfair Dismissals Acts 1977-2007.

The Tribunal had to determine whether there was a dismissal on 27 July 2010. It found it was common case that the first respondent phoned the claimant on 27 July and shouted at him to ‘get out of there and get the first truck back to Ireland’. The claimant understood these words to constitute a dismissal and did not report for work when he returned to Ireland a few days later. In ambiguous dismissals, Tribunals will look to surrounding circumstances to determine whether the construction put by the employee on the words used by the employer is reasonable.

The EAT found that they did and that the respondent had dismissed the claimant. Following the claimant’s return to Ireland, the first respondent did not make any contact with him when he did not show for work and when they eventually met, which was at the claimant’s instigation, no issue was raised by the respondent about his not having returned to work. The finding was supported by the contents of the first respondent's solicitor’s letter dated 28 September 2012, where it is stated that the respondent had no option but ‘to terminate his employment’. Having found that the claimant was dismissed it had to follow that the dismissal was unfair, being without any or fair procedure. The Tribunal awarded the claimant the sum of €50,000.00 in compensation under the Unfair Dismissals Acts, 1977 to 2007.

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