EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Viktorija Vasilveca - appellant UD1655/2012
RP421/2012
MN436/2012
against
Maybin Support Services (Ireland) Limited T/A Momentum Support - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr D. Hayes B.L.
Members: Mr. A. O'Mara
Mr F. Keoghan
heard this appeal at Dublin on 29th January 2014
Representation:
Appellant: Mr. J. Jeffers B.L. instructed by DFMG, Solicitors, Embassy House, Ballsbridge, Dublin 4
Respondent: Ms. Mairead Crosby, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
Background:
The appeal under the Unfair Dismissals Acts, 1977 to 2007, came before the Tribunal by way of an employee (the appellant) appealing against the Recommendation of a Rights Commissioner (reference: r-121215-ud-12/DI).
The claims under the Redundancy Payments Acts, 1967 to 2007 and the Minimum Notice and Terms of Employment Acts, 1973 to 2005 were lodged directly to the Tribunal.
Determination on preliminary issue:
The respondent is a contract cleaning company. It had employed the appellant as a cleaner in 2001. It was common case that the appellant’s employment with the respondent had ended. The date of the termination of the employment is in dispute. It is the respondent’s case that the employment ended in 2009. It is the appellant’s case that it ended in 2012. The Tribunal was asked to deal with this dispute as a preliminary issue.
The appellant worked in a number of different offices in the Donnybrook and Ballsbridge areas of Dublin. Up to 2008 she worked up to thirty hours per week for clients of the respondent. Thereafter her hours began to reduce. One client, D Co., who was ending its contract with the respondent directly, engaged the appellant as its cleaner in about May 2009. The respondent does not appear to have had any issue with this. As the work available in Dublin 4 was reducing, the appellant was offered alternative work in the Dublin 8 area. All such offers were not acceptable to the appellant and were refused. The Tribunal does not require to comment either on the reasonableness of the offers or their refusal for the purposes of this application.
The Tribunal heard evidence from the appellant and from RL, who was the appellant’s manager when employed by the respondent. RL told the Tribunal that she continued to look after other clients based in the same building as D Co. She occasionally met the appellant in that building between July 2009 and October 2011. She told the Tribunal that on the occasions that they met she offered work to the appellant, which offers were always refused. RL also told the Tribunal that she had not been aware that the appellant’s employment had been terminated in 2009.
It is the respondent’s case that a P45 together with a payslip in respect of outstanding holiday pay were sent to the appellant in November 2009. The P45 expressed the date of cessation of employment as 24th July 2009. The appellant accepts that she received the payslip but insisted that she never received a P45. Her manager was not aware that it had purportedly been sent to her. The appellant told the Tribunal that she first received the P45 when a copy of it was sent to her in January 2012. No evidence was adduced by the respondent in relation to when the P45 was initially issued or sent to the appellant.
In October 2010 the appellant sent an email to the respondent’s payroll section to notify them of a change of address. No reply was received in response to this email.
In October 2011 the appellant again met RL in Ballsbridge and, when she inquired about work, was told on this occasion that she no longer worked for the respondent. Subsequent to this conversation the appellant wrote to the respondent seeking clarification. It was in response to this query that she was sent a copy of her P45.
It is clear that the appellant did not do any work on the respondent’s behalf after July 2009. On the respondent’s own case, no step was taken to terminate the appellant’s employment other than to issue a P45. As noted above, no evidence was adduced by the respondent that a P45 was, in fact, sent to the appellant in 2009. The appellant told the Tribunal that she did not, at that time, receive one. In the absence of evidence to the contrary, the Tribunal must accept that a P45 was not sent in 2009. The Tribunal further notes that the appellant advised the respondent in 2010 of a change in address. Such an act is consistent with a belief that she remained in employment. The Tribunal also notes that no step was taken by the respondent at that time to explain to the appellant that, as she was no longer an employee, it was no longer necessary to keep them informed of changes of address.
Whatever the intention of the respondent, the Tribunal is satisfied that the appellant was not notified of any dismissal in 2009. Even though the appellant did not work for the respondent after July 2009, the Tribunal is satisfied that she remained in employment. On the occasions that she met her manager, up to October 2011, she continued to be offered work. In order to be dismissed an employee must, in general, be told in clear and unequivocal terms that the employment has come to an end. What these terms might be will depend on the facts of any given case. It was submitted to the Tribunal that the giving of a P45 does not constitute such a term. The Tribunal in this case does not require to make a finding in respect of whether the giving of a P45 constituted a clear and unequivocal ending of the employment. The Tribunal does observe, however, that it could envisage circumstances in which the giving of a P45 would constitute sufficient communication.
The Tribunal is satisfied that clear and unequivocal communication of the termination of her employment took place in January 2012 when what she had been told by RL the previous October was confirmed to her. For the purpose of determining whether her claims have been brought within statutory time limits, it is not necessary to be certain of the exact day in January 2012 as the entire of the month was within time.
Accordingly, as regards the preliminary issue, the Tribunal is satisfied that the claim made under the Unfair Dismissals Acts, 1977 to 2007, having initially been lodged with the Rights Commissioner Service on 22nd March 2012, has been made within time and the recommendation of the Rights Commissioner is upset accordingly. Her claims pursuant to the Redundancy Payments Acts, 1967 to 2007 and the Minimum Notice and Terms of Employment Act, 1973 were lodged with the Tribunal on 22nd March 2012 and were therefore made within time.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)