EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Segute Ziaugiene, - Appellant UD1361/2012
PW658/2012
TE209/2012
WT338/2012
against the recommendation of the Rights Commissioner in the case of:
Mary Murphy, The Hollow Bar and Restaurant - Respondent
The Hollow Bar and Restaurant - Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
PAYMENT OF WAGES ACT, 1991
TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. D. Donovan BL
Members: Mr. J. Browne
Mr. F. Dorgan
heard this appeal at Wexford on 11th June 2014
Representation:
Appellant(s) : Mr. Tiernan Lowey BL instructed by:
MS Solicitors, Unit 4, Isolde’s Tower, Essex Quay, Dublin 8
Respondent(s) : Coughlan Kelly, Solicitors, Trinity Chambers, South Street, New Ross, Co. Wexford
This case came before the Tribunal by way of an appeal by an employee (appellant) appealing against the recommendations of the Rights Commissioner reference numbers: r108334-ud-11/EH, r-108352-pw-12/EH, r-108338-te-11/EH and r-108336-wt-12/EH.
The decision of the Tribunal was as follows:-
Background:
The appellant was employed as a Kitchen Porter from the 1st April 2006 to the 6th September 2010 (date disputed).
The appellant claimed she had been paid €9.00 per hour, had not been given a written statement of her terms and conditions of employment, was owed payment for wages and outstanding holidays and was unfairly dismissed. She claimed her date of dismissal was the 20th November 2010, this being the day she returned from Lithuania and opened an envelope containing her P45.
The respondent claimed the appellant had resigned her position on the 6th / 7th September 2010.
The Rights Commissioner found the employee’s claims (appellant in this matter) under the Unfair Dismissals Acts 1997-2007, the Payment of Wages Act 1991, the Organisation of Working Time Act, 1997 and the Terms of Employment (Information) Act 1994 were lodged out of time.
Determination of Preliminary Issue:
Having considered the evidence of the parties adduced at the hearing and the legal submissions of Counsel for the appellant employee the Tribunal determines that the appellant employee was not dismissed but that she resigned. The Tribunal so determines for the following reasons:-
(1) On the 6th/7th September 2010 the appellant employee told the respondent employer that she needed to return to Lithuania urgently and when the respondent employer enquired of the appellant employee would she be back she was told “maybe, maybe never”. On the evidence the Tribunal finds that the respondent employer reasonably took this to mean the appellant employee was resigning. The Tribunal accepts that the resignation may not be an unequivocal resignation as such but Tribunal finds in the circumstances it was open to the respondent employer to accept this resignation.
(2) The appellant employee may have felt compelled to resign in that the Tribunal accepts that she had an urgent need to return home. However, any such compulsion was not attributable in any shape or form to the respondent employer. In the absence of a claim by the appellant employee to the respondent employer that she is entitled to resume work the contract of employment was determined by the appellant employee.
(3) No oral or written dismissal issued from the respondent employer to the appellant employee. The appellant employee is relying on the receipt of a P45 as notice of a dismissal. A P45 is not notification of a dismissal. A P45 is a statutory document that an employee is entitled to be furnished with on cessation of employment whether the cessation occurs because of a dismissal or due to a resignation. An employer has an obligation to furnish an employee with such P45 on cessation of employment.
(4) The Tribunal finds that the respondent employer had nothing to gain from dismissing the appellant employee as it was clear to the Tribunal that the appellant employee was a good worker who had been employed for a considerable number of years by the respondent employer and in fact during that time the respondent employer had offered the appellant employee extra hours.
(5) The Tribunal feels that the appellant employee should have at the least given the respondent employer an opportunity to allow her to resume work when she returned from Lithuania in November 2010.
Regarding the failure of the respondent employer to assert her right to a week’s notice from the appellant employee, an issue raised by Counsel for the appellant employee, the Tribunal accepts that the respondent employer acted correctly and reasonably when she did not seek to enforce this entitlement in circumstances where it was clear that the appellant employee had an urgent need to return home to Lithuania whether it be for dental treatment or otherwise.
The Tribunal rejects absolutely the suggestion by Counsel for the appellant employee that the respondent employer treated the appellant employee shabbily.
Accordingly, the claim under the Unfair Dismissals Acts 1977-2007 fails.
Regarding the complaint under the Payment of Wages Act 1991. A complaint under this Actcannot be entertained unless it is presented within the period of 6 months beginning on the date of the contravention to which the complaint relates or in a case where the complainant shows that exceptional circumstances prevented the presentation of the complaint within the period aforesaid the period may be extended to such further period not exceeding 6 months as is considered reasonable (see s6(4) of the Act). However, despite being invited by the Tribunal to put forward a reason as to why the complaint was not presented within six months of 6th/7th September 2010 the appellant employee refused to put forward any reason. Accordingly, the claim under the Payment of Wages Act 1991 fails.
Regarding the complaint under the Terms of Employment (Information) Act 1994. The complaint under this Actcannot be entertained as it was presented after the period of 6 months beginning on the date of termination of the employment concerned (see s.7(3) of the Act). Accordingly, the claim under the Terms of Employment (Information) Act 1994 fails.
Regarding the complaint under the Organisation of Working Time Act, 1997 A complaint under this Act cannot be entertained as it was presented after the period of 6 months beginning on the date of the contravention to which the complaint relates (s.27(4) of the Act). Notwithstanding a complaint may be entertained after the expiration of the period in subsection (4) but not later than 12 months after such expiration if the complainant can show that the failure to present the complaint within time was due to reasonable cause (s.27(5) of the Act). However, despite being invited by the Tribunal to put forward a reason as to why the complaint was not presented within six months of 6th/7th September 2010 the appellant employee refused to put forward any reason. Accordingly, the claim under the Organisation of Working Time Act, 1997 fails.
The Tribunal affirms the recommendation of the Rights Commissioner made on the 19th July 2012 that the claim under the Unfair Dismissals Acts 1997-2007 fails but for a different reason.
The Tribunal affirms the decisions and recommendation of the Rights Commissioner made on the 19th July 2012 under the Payment of Wages Act 1991, Organisation of Working Time Act, 1997 and the Terms of Employment (Information) Act 1994.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)