UD21/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                             CASE NO.

EMPLOYEE

                                                                                                                                    UD21/2012

against the recommendation of the Rights Commissioner in the case of:

EMPLOYER

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Mr J.  Lucey

Members:     Mr D.  Hegarty

                     Mr O.  Wills

heard this appeal at Killarney on 12th September 2013

Representation:

_______________

Appellant:           

Respondent:        

This case came before the Tribunal by way of the appellant (the employee) appealing against the recommendations of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007 (ref. r-107493-ud-11).

(Dismissal was in dispute therefore, as a case of constructive dismissal the appellant went into evidence first)

Appellant’s Case:

The appellant gave evidence of beginning work with the respondent in October 2008. Employment was largely uneventful and she got on well with her employer and other members of staff.  She had a period of sick leave in September 2010 and on the second day after her return (Tuesday 5^th) Mr G approached her and asked about her back problems, he seemed agitated and the conversation included her fitness to work, also a downturn in business etc.  The appellant was upset with his attitude and while she continued on with her duties decided to telephone him and discuss the matter further. During this conversation the appellant offered to leave work and get details from her doctor of a pending MRI scan. She felt it might help if she was laid off and could later return to be Mrs Clause in the holiday season.  Mr G said that it was up to her but she was unfit for work and should “go now”. The appellant went to other members of staff to say goodbye. 

Mr G later telephoned the appellant again. She considered it a verbal warning. Part of the conversation  (Wed 6^th ) was that members of staff were complaining that she was not pulling her weight, he also warned her about her dirty uniform, she apologised but had to ring off as she was so upset. Later that evening Mr G called back to see how she was, it appears that somewhere in this conversation she agreed to go back in on the Thursday, she said she would be embarrassed to do so but he told her to say “she got it wrong”.  The appellant received letter dated 13^th October 2010 confirming that she was no longer required to work for the respondent due to seasonal downturn she also received her P45 

Respondent’s Position:

Mrs G (wife of the owner of the business) gave evidence that the respondent is a children’s activity adventure centre, café, and cave tours. Her husband telephoned her to say that the appellant had left her job. She asked why and he told her that he had just found out from another member of staff. He had called her aside in the kitchen to have a word about her uniform being dirty, he also told her that staff had complained about the previous Friday evening when she had supposedly been on a doctor’s appointment but was seen in the pub. Mrs G said he should phone her back.

Mrs G felt very let down by the appellant, she had walked out and left them over what was a minor incident. It was difficult to find someone to replace her as Mrs Clause, she never felt that the appellant was dismissed and a letter was issued by the respondent saying she was let go “due to a downturn in business” because they felt sorry for her”. Mrs G now realised this was a mistake on their behalf.

Mr G gave evidence of meeting the appellant in the kitchen of the centre. He asked for a word because her uniform was dirty and told her of staff seeing her in the pub on the previous Friday evening. She apologised and he went off to do his jobs. Sometime later he got a call from MM to say she had left her job. He was taken aback and rang his wife. He then rang the appellant and she told him that she was hurt that others were talking about her, she was emotional and said that she couldn’t return to work. He told her to think about it and come in the next day. She telephoned him later that evening to say she couldn’t come in and work for them anymore, she also requested a letter in order to obtain Social Welfare.

MM told the Tribunal that he was working in the craft shop when the appellant came to him and told him she was leaving. She was upset and said something about her uniform being dirty. He rang Mr G and told him what had happened. Mr G didn’t know she had gone until MM informed him. MM  gave Mr G her  phone number because he didn’t have it.

Determination:

The Tribunal heard conflicting evidence as to the events and discussions that took place on the  5^th and 6^th October 2010. The respondents prefaced the evidence being introduced on their behalf with reference to an accident Mr G had with a horse that may have some consequences for his recollection of events.  Much of the evidence adduced by the respondents was given by Mrs G which was hearsay in nature and assertions of complaints being made against the appellant of her not pulling her weight were not borne out or confirmed by the respondents witnesses in evidence.

The fact of the matter is that the letter 13^th October 2010 did issue to the appellant. 

Having carefully considered all of the circumstances of this appeal under the Unfair Dismissals Acts, 1977 to 2007, the Tribunal upsets the Rights Commissioners recommendation and awards the appellant the sum of €1,000.00.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)