EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE UD590/2012 MN459/2012 WT183/2012 RP427/2012
Against
EMPLOYER
Under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
UNFAIR DISMISSALS ACTS, 1977 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. Hurley
Members: Mr. N. Ormond
Mr. J. Flannery
heard this claim at Tullamore on 18th July 2013
Representation:
Claimant:
Hughes Kehoe & Company, Solicitors, Patrick Street, Tullamore, Co Offaly
Respondent:
REP
Claimant’s case
At the outset the claimant withdrew his claim under the Organisation of Working Time Act, 1997.
The claimant lodged his claim under the Unfair Dismissals Acts, 1977 to 2007 outside of the time permitted under Section 8(2) of the 1977 Act. However he applied for an extension of this time limit as per Section 7 of the 1993 (Amendment) Act, which states as follows.
“if the rights commissioner or the Tribunal, as the case may be, is satisfied that exceptional circumstances prevented the giving of the notice within the period aforesaid, then, within such period not exceeding 12 months from the date aforesaid as the rights commissioner or the Tribunal, as the case may be, considers reasonable,”
The basis of this application, in the words of the claimant’s representative, was as follows:
1. The claimant is not an Irish citizen and has not got good English, thereby being disadvantaged.
2. The claimant has no knowledge of the Irish legal system
3. The claimant is of low socio-economic standing.
The respondent owned a taxi company and the claimant commenced as a driver on 6th June 2007. In 2008 business began to decline and the claimant went on a 3 day working week. On 8th June 2011 the claimant took annual leave to go to Poland. When he returned from holidays on 23rd June 2011 he was contacted by the respondent by phone and was told that he no longer worked for the respondent. However the claimant did return to work after this conversation and continued in employment until sometime in September 2011 at which time he received his P45. The date of cessation on the P45 was 12th September 2011.
It was put to the claimant, during cross examination, that he had taken holidays and gone to work in France from the 8th to the 23rd of June 2011 and that shortly after returning he asked the respondent to hold his job open for him while he returned to France in September to take up employment for a period of 6 months or longer. The claimant denied that he had gone to France in June 2011or that he had made a request to keep his job open while he returned to France in September.
Respondent’s case
The respondent stated that the claimant took annual leave from 8th June 2011 to 23rd June 2011 and went to France in order to do some work for his friend/cousin. There was no issue about the claimant returning to work after his holidays and he continued to work until he left of his own volition on 12th September 2011. The reason given by the claimant for leaving was that he wanted to move to France where he was promised work for at least 6 months. The claimant asked the respondent to keep the job open for him in case he would return but the respondent could not give such an undertaking.
Determination
The Tribunal considered the application by the claimant to extend the time limit for lodging a claim for unfair dismissal. The Act states that the time limit is six months but that this may be extended to twelve months if there were exceptional reasons for not lodging the claim within six months of termination of employment. The Tribunal is not satisfied that there were exceptional circumstances preventing the claimant from lodging his claim on time and therefore the Tribunal declines jurisdiction in relation to the claim under the Unfair Dismissals Acts, 1977 to 2007.
There was a conflict of evidence between the parties with regard to the circumstances surrounding the termination of the claimant’s employment. On the one hand the claimant stated that he returned from holidays and was told that he would not be given any further employment by the respondent. On the other hand the respondent stated that the claimant left his employment to take up work in France. It was common case that this was at a time when the respondent was experiencing a downturn in business. However the respondent did not make any other employees redundant until March 2012, some six months after the claimant’s employment had ended.
Having carefully considered all the evidence adduced at the hearing the Tribunal prefers the evidence of the respondent and finds that the claimant resigned of his own volition and therefore his claim under the Redundancy Payments Acts, 1967 to 2007 fails.
As the claimant left without giving notice to the respondent he is not entitled to be paid in respect of notice by the respondent and therefore the claim under the Minimum Notice and Terms of Employment Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)