EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE UD698/2012
MN521/2012
against
EMPLOYER
under
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: Mr E. Murray
Members: Mr J. Killian
Mr D. McEvoy
heard this case in Cork on 15 October 2013
Representation:
_______________
Claimant(s):
Mr. Neil Smith BL instructed by
Helen M. Jeffords & Co., Solicitors,
Plunkett Chambers Business Centre,
21/23 Oliver Plunkett Street, Cork
Respondent(s) :
Mr. Brendan Kelly BL instructed by
Frank Buttimer & Company, Solicitors,
19 Washington Street, Cork
The determination of the Tribunal was as follows:-
Claims were brought under unfair dismissal and minimum notice legislation in respect of an assistant manager/butcher regarding employment from 22 November 2010 to 17 December 2011. It was alleged that the claimant had informed her employer on 14 November 2011 that she was pregnant and that on 17 December 2011 she was informed that there was no more work for her.
The respondent acknowledged that the claimant had been his employee but maintained that he had done so lawfully and contested the unfair dismissal and minimum notice claims.
Giving sworn testimony at the Tribunal hearing, the respondent said that he had been a butcher for some thirty years and that his business was a small operation with just a couple of employees. One had been with him for thirty years and another for eight years.
In 2010 AGN (an employee) went on maternity leave. The claimant was taken on but knew that this was a temporary post. It was all subject to the return of AGN which occurred in late 2011 but the respondent wanted to keep her on until Christmas and kept her on for some weeks.
Under cross-examination, it was put to the respondent that the claimant had left a permanent job with another employer (hereafter referred to as TCX) to work for the respondent. The respondent replied that the claimant had not been happy with TCX and that, if AGN had not returned, the claimant could have continued working for him. The respondent maintained that all had been made clear to the claimant.
The respondent told the Tribunal that he did not recall being told that the claimant was pregnant or being shown a scan. It was put to the respondent that the claimant had a witness who had seen the respondent being shown the scan.
Giving sworn testimony, JOC (the respondent’s accountant) said that the claimant’s job with the respondent had always been a temporary post although the respondent had not known what would happen about AGN.
Under cross-examination, JOC accepted that the claimant had not received a temporary contract referring to AGN and said that he had no HR employee.
Giving sworn testimony with the support of a Tribunal-appointed interpreter, the claimant said that she had told the respondent of her own pregnancy and had shown him a scan. She had understood from him that she could work two or three days per week during her pregnancy. However, he had terminated her employment.
Under cross-examination, the claimant said that she would not have left a permanent job for a temporary job especially as her husband was out of work at that time. She did not accept that her witness to the showing of the scan (KX) was asked to attend to bolster her case and said that KX had been at the counter at the material moment. Her pregnancy-related conversation with the respondent had lasted two or three minutes.
It was put to the claimant that notice of termination had been given to her but that her employment had been extended towards Christmas 2011. The claimant did not deny telling the respondent that she would see her face again but did deny having said anything impolite to the respondent.
The claimant was accused of having known that her employment was a fixed-term contract and of engaged in an untruthful fabrication. She replied that every woman told “the world” of a pregnancy.
Giving sworn testimony, HD said that the claimant had had to give a month’s notice to TCX before starting work for the respondent.
The abovementioned KX was not called to give evidence and be cross-examined.
In closing submissions it was argued for the claimant that she had left a permanent job to work for the respondent and that the claimant’s husband had been unemployed at the time. She had not received a dated contract for her employment with the respondent. It was submitted for the respondent that the claimant had been employed on a specific purpose contract for the maternity-related absence of AGN and that the said contract ended when AGN returned. The claimant’s employment might have continued if AGN had not returned but the respondent could not have guaranteed this.
Determination:
Having considered the evidence adduced, the Tribunal was unanimous in preferring the evidence for the respondent and finding that the claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, falls because it was not found that the respondent had breached the said legislation.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)