EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE , UD259/2012
MN269/2012
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: Ms. K. T. O'Mahony B.L.
Members: Mr D. Hegarty
Ms. P. Doyle
heard this claim at Cork on 24th July 2013
Representation:
Claimant :
Respondent :
The determination of the Tribunal was as follows:
Dismissal was in dispute in this case.
Summary of Evidence
The claimant commenced employment with the respondent, a veterinary surgeon, as a trainee veterinary nurse in October 2006. She decided to undertake a three-year block release course in UCD, during which time the respondent facilitated the claimant with her studies and training. She became a fully qualified nurse in summer 2010 and when the senior veterinary nurse in the practice was made redundant around the end of 2010 the claimant became the senior nurse. Apart from her surgical duties, the claimant also did some general administrative work. While the claimant had no professional difficulties with the respondent she described her day to day relationship with her as very difficult; the respondent was moody and some of those moods impacted negatively in the work place. The respondent, on the other hand, found that the claimant to be an excellent nurse, if somewhat hot headed, and while they had some differences all issues between them were either resolved or faded away. The evidence of another employee (AE), who had worked in the practice for over two years, was that the respondent was not moody.
The claimant had a medical problem and in July 2011 she was informed that it required medical intervention. No medical evidence was adduced but it was the claimant’s evidence that she had been informed that the lump in her gland had been growing aggressively. On the morning of 16 January 2012 the claimant noticed a missed call on her mobile phone and on checking back found it had been from the admissions office in hospital X asking if she could come in that day as there had as there had been a cancellation. When the claimant informed the respondent about the phone call, both the respondent and AE, who was also present, thought this was very short notice. The respondent told her to go home and contact her consultant’s office. AE told the claimant that she had three weeks’ leave coming up in two week’ time and could cover for her then. The claimant indicated that she would try to get an appointment for that time.
The claimant contacted her consultant’s receptionist who, later that day, informed her that an appointment was available in hospital the following Tuesday, 24 January. The respondent told her that one weeks’ notice was too short as she would be attending a CPD in the UK that week and would have a locum in the practice. A further reason for the respondent’s difficulty with that date was that AE would still be in college. The claimant agreed to try and change the appointment. However, having discussed the matter with her mother and having been waiting around six months for an appointment, the claimant opted to accept the appointment for 24 January 2012.
There was a dispute as to the contents telephone conversation that took place between the claimant and the respondent later that day. It was the claimant’s evidence that on communicating her decision to the respondent, she told her, “I’m giving you a week’s notice and I don’t expect to see you in my clinic tomorrow morning.” The claimant understood that she was dismissed. It was the respondent’s evidence that the claimant told her that she was not changing her appointment for the following week and that her job was not important to her to which the respondent replied, “If that’s so, why not hand in your notice.” The claimant then hung up. The respondent denied telling the claimant not to report for work the following day. The claimant denied telling the respondent that she did not care about her job
AE told the Tribunal that the respondent phoned her on the morning of 17 January 2012 and asked her to come to work as the claimant had not shown for work that morning. Within minutes the respondent phoned again in a panic and asked her to get a taxi to work. AE’s written statement of her recollection of the events of the morning of 16 January was produced in evidence. She had prepared the statement about one week after 16 January. The respondent had told her that the claimant refused to change her appointment and had hung up on her.
On 17 January the respondent wrote to the claimant expressing surprise that she had not shown up for work that morning and giving her until the end of that week to report for work or otherwise she would consider that she had resigned. In turn she received a letter from the claimant’s solicitor dated 19 January, alleging that she had dismissed the claimant and calling on her to compensate the claimant. On 30 January the respondent again wrote to the claimant renewing her invitation to the claimant to resume her employment and giving her seven days to reply.
The claimant acknowledged receiving both letters from the respondent but she had made up her mind not to return to a job from which she had been dismissed. She regarded the respondent’s offers to return to work as a ploy to cover up the dismissal.
Determination
Dismissal was in dispute in this case. Having considered the evidence of both parties on their final conversation on 16 January 2012, the Tribunal on the balance of probability, accepts the respondent’s evidence and finds that there was no dismissal in this case and that the claimant resigned from her employment. The Tribunal notes that the claimant brought finality to that conversation by hanging up the phone and further failed to engage with the respondent or explore any possibility of a resolution to what had transpired and finds that this supports its conclusion.
Accordingly the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
As there was no dismissal the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 also is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)