EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Lorraine Carroll - claimant UD558/2012
RP404/2012
MN420/2012
against
Pallas Foods Limited - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. Hurley
Members: Mr T. Gill
Mr F. Dorgan
heard this claim at Limerick on 4th February 2014
Representation:
Claimant:
Mr Paddy Whelehan, Philip O'Sullivan & Company, Solicitors,
14 Denny Street, Tralee, Co Kerry
Respondent:
Ms. Michelle O'Riordan, Holmes O'Malley Sexton, Solicitors,
Bishopsgate, Henry Street, Limerick
Summary of evidence:
The case before the Tribunal was one of constructive dismissal.
The respondent is a food distribution company with an excess of 10,000 products which provides next day delivery to its customers. There were 500 employees at the time the claimant was employed. The claimant was employed as a member of the telesales team and initially she worked 40 hours per week. In January 2009 it was agreed to reduce the claimant’s hours to 36 hours per week for family reasons.
Subsequently, during 2010 the claimant was diagnosed with a medical condition that required surgical intervention and she was absent due to sick leave from November 2010. From that time the claimant submitted medical certificates relating to her ongoing medical condition and maintained regular contact with the company.
In or around August 2011 a conversation was held between the claimant and her Department Manager. The claimant mentioned that her doctor was considering the possibility of the claimant returning to work on a part-time basis. It was the claimant’s evidence that the Department Manager stated that the company would gladly have her back either on a full or part-time basis. It was the evidence of the Department Manager that she did not recall making such a statement.
In early September 2011 the claimant submitted a final medical certificate (covering the period until the 3rd October) to the Assistant Telesales Manager. It was the claimant’s case that this manager also assured her that there would not be a problem with returning to work on a part-time basis. The Telesales Assistant Manager disputed this in evidence on the basis that she did not have the authority to offer such assurances.
The Department Manager was informed by the Telesales Assistant Manager that the claimant was seeking a return to work on a part-time basis. She spoke with the claimant on the 6th September about a meeting arranged for the 13th September. The Department Manager recalled that the claimant was to attend for a further medical appointment with a consultant on the 7th September 2011. Prior to meeting with the claimant on the 13th September the Department Manager consulted with the Human Resources Manager. From this discussion she was aware that there were no part-time positions available in any department.
When they subsequently met the Department Manager informed the claimant that it was not possible for her to return to work on a permanent part-time basis. It was the claimant’s evidence that a comment was passed to her that other single mothers would also request part-time hours if it was granted to the claimant. The Department Manager disputed that she had passed such a comment in such a manner to the claimant. The claimant enquired if part-time hours could be offered to her in another department of the company but it was confirmed to her that no other available positions existed. The claimant was offered a return to work on a part-time basis for a six-week period with a return to full-time hours thereafter. The claimant offered to obtain a letter from the doctor and the consultant cardiologist stating the implication of full-time hours on her heath. The Department Manager considered their conversation to be somewhat premature as it was her understanding that the report of the consultant was to follow after this meeting although she acknowledged that she did not ask the claimant about the appointment with the consultant. The following day she spoke to the Human Resources Manager and they agreed that if the claimant was to return to work she could be asked to attend the company doctor.
It was the evidence of the Human Resources Manager that she considered whether a part-time permanent position could be offered to the claimant in another department. However, when considering this she was not of the understanding that the claimant would leave the employment if such a position was not offered.
The claimant subsequently emailed the Department Manager on the 26th September 2011 stating that her doctor still considered her unable to work full-time and also wanted the opinion of the consultants on that issue. Two days later the claimant resigned from the company by email stating that she had found a part-time position elsewhere. The claimant stated that she sought other employment immediately after the conversation with the Department Manager on 13th September, as she thought there was no role for her in the company and she felt she had no other choice but to resign. The claimant did not raise a grievance as she trusted the Department Manager when she said there were no part-time positions available.
It was the claimant’s case that since her employment ended one employee has returned from maternity leave on a three day week and that another employee also works on a part-time basis. The witnesses for the company confirmed that flexi-hour contracts exist in the telesales department. The contracts are for more than 34 hours and up to 40 hours. Very recently two fixed-term contract positions of 24 hours per week were recruited for but not in the telesales department. The claimant stated that two other employees worked part-time in telesales when she was employed but the witnesses for the company refuted this contention stating that one of the two people named worked a 36 hour week and the other worked afternoons only for a period of time due to undertaking accountancy exams and did not have a specific role in one department at that time.
Determination:
Having considered the evidence adduced in this case the Tribunal finds that the claimant did not meet the criteria imposed by the Acts in cases of constructive dismissal. While medical grounds existed as to why the claimant could not work part-time, the internal grievance procedures were not exhausted by the claimant to allow her to be able to consider herself constructively dismissed. The Tribunal finds there was insufficient reason for the claimant to feel that she had no option but to leave her employment and consider herself constructively dismissed. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007, fails. As the claimant resigned from her employment a claim cannot arise under the Minimum Notice and Terms of Employment Acts, 1973 to 2005. Having heard the evidence the Tribunal finds that a claim does not arise under the Redundancy Payments Acts 1967 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)