EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
UD877/2012
Toni Farrell - claimant MN620/2012
WT273/2012
Against
Nora Gough, - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr. J. Browne
Mr. F. Dorgan
heard this claim at Wexford on 20th March 2014
Representation:
Claimant: Mr. Davy Hynes, 48 Davitt Road South, Wexford
Respondent: No appearance or representation.
Background:
There was no appearance by or on behalf of the respondent. The Tribunal is satisfied that proper notification was sent to the respondent.
The Tribunal heard the uncontested evidence of the claimant. The claimant commenced working for the respondent on 5th November 2010 and worked as a driver, mainly driving a school bus and sometimes a taxi cab, for a period of in or about 1 year and 4 months.
It was the claimant’s evidence that she worked 20 hours per week at €10 per hour giving her weekly gross earnings of €200. The claimant told the Tribunal that on 9th March 2013 she received a phone call from the respondent telling her she was being “let go” there and then.
The claimant said she was not given any notice and did not receive pay in lieu of notice. The claimant said she had not been paid in respect of holidays or Public Holidays from the commencement of employment until she was let go.
On questioning by the Tribunal the claimant said she did not ask her employer why she was being let go.
The claimant gave evidence of her efforts to mitigate her loss. She said she made some telephone calls to various taxi firms. The claimant got a new job on 3rd October 2012.
There was no appearance by the respondent. However, a representative appeared seeking an adjournment. The Tribunal was aware that the respondent had sought an adjournment before another Division of the Tribunal in Dublin on 13th March 2014. The Tribunal was sympathetic regarding the respondent’s plight but in circumstances where it was the day of the hearing, where it appeared the respondent required an adjournment of at least a year and where the claimant was not consenting the Tribunal felt obliged to refuse the application for an adjournment.
Determination:
On the uncontested evidence of the claimant the Tribunal finds that she was unfairly dismissed by the respondent. However, in circumstances where the claimant could offer no evidence to the Tribunal other than she was told she was being let go and where a report submitted to the Tribunal indicated that the respondent was experiencing difficulties the Tribunal determined the matter on the basis that there was a breach of fair procedures in effecting the dismissal rather than an unfair dismissal per se. Accordingly, the claim under the Unfair Dismissals Acts 1977-2007 succeeds and the Tribunal awards the claimant compensation in the amount of €200.00. In deciding the level of award the Tribunal took into account the nature of the breach and the fact that the Tribunal was not convinced of the claimant’s efforts to mitigate her losses.
On the uncontested evidence of the claimant, the claim under the Minimum Notice and Terms of Employment Acts 1973-2005 succeeds and the Tribunal awards the claimant an amount of €200.00 being pay in lieu of one week’s notice.
The Tribunal finds that the claim under the Organisation of Working Time Act 1997 in respect of the period from 5th November 2010 to 27th October 2011 was not presented within the six-month period provided by 7(4) of the Act. No cause, reasonable or otherwise, was put to the Tribunal regarding the failure to present the complaint within the 6-month period and accordingly the Tribunal cannot entertain the claim for the period 5th November 2010 to 27th October 2011. On the uncontested evidence of the claimant, the Tribunal finds that the claimant is entitled, pursuant to section 19(1)(c) of the Act, to annual leave based on hours worked for the period from 28th October 2011 to 9th March 2012 and awards the claimant an amount of €296.53 in respect of annual leave. The Tribunal further finds that the claimant is entitled to an amount of €120.00 in respect of three Public Holidays being Christmas Day and St. Stephen’s Day 2011 and New Year’s Day 2012. The total value of the claim under the Organisation of Working Time Act 1997 is €416.53.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)