EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Bernadette Fleming, - claimant UD169/2012
RP133/2012
MN99/2012
Against
John Dillon Leetch T/A Dillon-Leetch & Comerford Solicitors, - 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: Dr. A. Courell B.L.
Members: Mr. D. Morrison
Mr M. McGarry
heard this claim at Castlebar on 5th November 2013 and 11th March 2014
Representation:
Claimant(s) : Ms Faye Revington B.L. instructed by Mr Conor Quinn,
John J Quinn & Co., Solicitors, Earl Street, Longford
Respondent(s) : Mr Alan Ledwith B.L., 4-5 Mary Street, Galway
The determination of the Tribunal was as follows:-
The claim under the Redundancy Payments Acts 1967 to 2007 was withdrawn by the claimant. In circumstances where the dismissal was in dispute the claimant’s evidence was heard first.
Summary of Evidence
The claimant was employed by the respondent in June 2006 in the role of secretary and receptionist. She was contracted to work five days per week. Following a period of maternity leave the claimant was due to return to work in February 2010. The respondent informed her that there was no work for her at the time and suggested she take the month of February off work. The claimant argued for a full time position butit was agreed she return to work three days per week. In and around April 2011 the claimant informed her employer that she would commence maternity leave in August 2011. The respondent refused to sign her maternity benefit application and commented that she may not be in employment in August 2011. He suggested she come back to him in July and he would then consider signing. The claimant sought assistance from the office manager and another senior member of staff who also failed to get the documentation signed. This caused the claimant great worry and stress. The claimant became sick in mid June 2011 and was hospitalised on the 13th June, 2011.
The claimant was on sick leave from the 13 June 2011 to the start of her maternity leave in August 2011. She was contacted in early July 2011 by the office manager who informed her that there may be no job for her when her period of maternity leave would end. The claimant received a P45 in July 2011 which caused further worry and she sought legal advice at the time. The claimant wrote to the respondent on the 22nd July, 2011 and asked him to clarify why a P45 had been issued to her. Correspondence between the parties ensued and the respondent indicated that he would only provide the clarification sought if the claimant attended at his office. The claimant never returned to work for the respondent. The claimant gave evidence of loss and submitted documentary evidence of mitigation.
The respondent’s evidence was that the claimant came to him to sign maternity benefit forms in April 2011 at a time when the business was undergoing a restructuring plan. In such circumstances the relevant documents are usually signed approximately four weeks before the maternity leave commences. The respondent denied that he refused outright to sign the maternity benefit documentation.
The detail of the restructuring and changes within the business was communicated to employees at a meeting in June 2011. The changes to the business partnership led to each employee receiving a P45 which was a procedural matter only. His evidence was that the claimant failed to engage with him and involved her solicitor at an early stage. He had hoped she would attend the office and meet with him in order for him to explain why she received a P45. The respondent described the claimant’s actions getting another employee to sign her maternity benefit form as underhand in the extreme and causing the relationship to break down further. He always intended meeting the claimant and intended that she would return to work however she only communicated through her solicitor.
Determination
The Tribunal has carefully considered the oral and documentary evidence in the case. The documentary evidence presented to the Tribunal included correspondence between the parties commencing with a letter dated 13th January, 2000 and culminating in a letter from the respondent dated the 21st December, 2011. The respondent wrote to the claimant on the 20th July, 2011 and enclosed her P45. At this time, the claimant was on sick leave and she requested written clarification as to why she had been furnished with her P45. Unfortunately, the respondent did not provide the clarification sought and insisted that the claimant attend his office for a meeting. The Tribunal accepts that the respondent’s business was going through a difficult time and that information about the business at the time was sensitive. However, given the grave significance of being issued with a P45 from the point of view of the claimant’s employment and coupled with the fact that she was unable physically to attend for a meeting at the respondent’s offices, the Tribunal has concluded that the respondent acted unreasonably and that the claimant was effectively dismissed from her employment. Accordingly, the Tribunal has unanimously found that the claimant was unfairly dismissed and she is awarded €13,480.00 compensation under the Unfair Dismissal Acts 1997 to 2007.
The claimant’s claim under the Minimum Notice and Terms of Employments Acts 1973 to 2005 fails as she was not available for work during the relevant period.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)