EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE , UD138/2012
against
EMPLOYER
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. L. O Catháin
Members: Mr. D. Hegarty
Mr. D. McEvoy
heard this claim in Cork on 24 September 2013
Representation:
_______________
Claimant(s):
Respondent(s):
The determination of the Tribunal was as follows:-
An unfair dismissal claim was lodged in respect of an employment alleged to have commenced on 25 July 2010 and ended on 27 July 2011. It was alleged that the claimant had been dismissed by text message and that she had not been given the reason for it, an opportunity to be heard or the benefit of fair procedures.
It was contended on behalf of the respondent that the claimant had not had one year’s continuous service because the claimant had commenced employment with the respondent on 31 July 2010. The claimant had signed a contract dated 31 July 2010. She had completed a timesheet for 31 July 2010 (and for no previous date).
The respondent’s argument was countered by a submission that the claimant had been interviewed on 22 July 2010 and had commenced work for the respondent on 25 July 2010.
Giving sworn testimony, JH (CEO and founder of the respondent) said that the respondent had been set up to help people with health problems in the context of social housing. The claimant had been employed as a part-time support worker to help tenants in the morning. The claimant had been one of two people shortlisted and asked in for a few hours. Up to and including 25 July 2010 the claimant and the other candidate (SHR) were not employees. The claimant was not paid for 25 July 2010. On 31 July 2010 the claimant signed and started. She was not an employee before that date.
In cross-examination it was put to JH that the claimant had known on 22 July 2010 that she had the job. JH replied that the claimant and SHR had been shortlisted.
It was put to JH that the claimant had been paid €150.00 for Sunday 25 July 2010. JH replied that the respondent had no petty cash to make such a payment. It was put to JH that the date of 31 July 2010 had been chosen just for book-keeping convenience and that it would have been awkward to put a previous payment into previous figures.
When it was pointed out during the Tribunal hearing that the claimant had signed a contract and dated it herself it was contended on behalf of the claimant that she had been paid in cash for 25 July 2010. When it was repeated that the respondent claimed not to have had any petty cash and not to have dealt in cash it was argued for the claimant that she had been interviewed on 22 July 2010 and worked for pay on 25 July 2010.
After making an affirmation (to give truthful testimony), FRK said that he had been on the respondent’s board of directors for some seven years and that he was familiar with a few hours of volunteer work being done as part of the interview process.
Under cross-examination FRK was asked if there could be exceptions to the respondent’s procedure. FRK replied that he supposed so.
Giving sworn testimony, the claimant said that she had been interviewed in JH’s home on Thursday 22 July 2010 and had been told that the job was hers. She was told that the job would start on Sunday 25 July. The interview had ended with the claimant being offered the job. On 25 July the claimant worked with NRH who was leaving. The claimant thought that she was replacing NRH.
The claimant was to sign a contract on 25 July but JH did not arrive. She met JH on 31 July. JH told the claimant to feel free if she wanted something changed.
Regarding Sunday 25 July 2010 the claimant said that she worked a full day and that she was paid from petty cash, JH’s handbag and money from tenants. The rate was sixteen euro per hour. She never got the Sunday premium. The last thing she wanted at that early stage was to raise a grievance. As far as she was concerned she was working from 25 July 2010.
In cross-examination the claimant was asked about the denominations of the banknotes she claimed to have received in connection with 25 July 2010 and replied that there had been two fifty-euro notes and other notes.
The claimant was asked why she had not put down 25 July 2010 as her start date when signing her contract. The claimant replied that 31 July 2010 was consistent with the day on which the contract was signed.
Asked if tax had been paid on the alleged payment of €150.00 on 25 July 2010, the claimant said that it had not and that the payment had already been short. The claimant said that she had not been given a timesheet for 25 July because it was only one day.
Determination:
Having considered the matter from various angles, the Tribunal was not happy with the evidence from either side and felt in an invidious position. There was a question of whether money changed hands for 25 July 2010. There had to be valid legal consideration. Even if there was a payment it would not be consideration. The unanimous conclusion of the Tribunal was that the contract commencement date was 31 July 2010 (as signed and dated by the claimant herself) and not 25 July 2010.
The claim under the Unfair Dismissals Acts, 1977 to 2007, fails because the Tribunal was not satisfied that the claimant had the required full year’s service (for a claim under the legislation) when her employment ended on 27 July 2011.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)