EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Lynda Slater -claimant UD1648/2012
MN933/2012
against
Xpert Taxis Limited -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. O. Madden B.L.
Members: Mr. D. Peakin
Mr. M. O'Reilly
heard this claim at Dublin on 20th January 2014 and 28th May 2014
Representation:
Claimant: Spelman Callaghan, Solicitors, Corner House, Main Street,
Clondalkin, Dublin 22
Respondent: The Chief Executive of the company.
Summary of evidence from 20th January 2014:
The respondent is a taxi company which was established in 2005 and has thirty nine employees. The majority of staff work shifts due to the nature of the business. The claimant was employed in the call centre from June 2010. The claimant returned from a period of maternity leave in April 2012. Prior to maternity leave the claimant worked all different shifts including nights and weekends. Although the company was unable to produce a contract for the claimant, samples of the respondent’s employment contract were submitted to the Tribunal. The Chief Executive stated that all contracts contain a flexibility of hour’s clause given the nature of the respondent’s business. However, employees returning from maternity leave are often facilitated with certain shifts for a period of time.
When the claimant returned to work from maternity leave the old shifts did not suit her. It did not cause the respondent much trouble to organise an 8am to 1pm or 2pm shift for a period of time to facilitate the claimant in returning to work. It was agreed between the parties that the claimant would work 8am to 1pm initially on her return. The company acceded to this request to facilitate the claimant in putting childcare arrangements in place. However, after a period of time the claimant worked a variety of other hours until the termination of her employment in August 2012. The Chief Executive believed this showed a willingness on the part of the claimant to work other shifts.
The company was carrying a loss and restructuring was necessary. A review of shifts commenced as a result. The claimant was met with on 17th July 2012 and informed that from September 2012 the 8am to 1pm shift would no longer be available. The claimant was offered an 8am to 4pm shift on a Monday to Friday basis. The claimant reverted to the call centre manager who compiles the rosters and stated that she could only work a maximum of thirty hours per week. The company therefore explored the possibility of providing the claimant with two shifts of twelve hours each at night over the weekend. However, the claimant responded that she was unable to work nights or weekends but could possibly work two twelve hour day shifts depending on when her partner was working. The witness stated that he had no objection to the claimant being offered any other shift as long as it fell in with the restructuring plan. The difficulty was that the claimant did not know in time when her partner was working. Letter dated 20 August 2012 issued to the claimant stating:
“It is our understanding that the new shifts you have been offered do not suit and that you will be unable to work them when they commence on the 3rd September 2012. We have reviewed all other possible shifts on offer and realise they do not suit your shift requirements.
As discussed at our last meeting on 16/08/2012, your current shift will no longer be available from the 3rd September. We would like to keep you on file whereby we could offer you any new shifts that may develop as the business grows.”
The claimant queried if a redundancy situation applied in circumstances where the 8am to 1pm shift no longer existed. However, it was the company’s position that that 8am to 1pm shift never existed prior to the claimant’s maternity leave. This shift was only offered to the claimant for a period of time in circumstances where she said that 8am to 2pm or 4pm did not suit nor did weekend work suit her. A letter dated 6 September 2012 issued to the claimant stating:
“As a result of the restructuring and to meet the changing business needs your part time role Monday to Friday 08.00 to 13.00 is no longer available and a full time role is now required for this period.
The company has offered you the full time role or a part time role at the weekend:
Full time 08.00 to 16.00 Monday to Friday
Part time 26 hours weekend evening shift
We would urge you to consider the alternative work options, however, if neither of these alternative positions are suitable, your current role will become redundant.”
By virtue of the claimant’s refusal the company took the position that she was self-terminating the employment.
Following subsequent correspondence from the claimant’s solicitor the Chief Executive sought advice on the matter and as a result the claimant was a offered a redundancy payment in December 2012, in circumstances where she could not work 24 hours over the weekend or 8am to 4pm midweek. The redundancy payment was forwarded to the claimant but was returned in circumstances where the claimant stated that she intended to bring a case for unfair dismissal.
The restructuring was successful for the company and it has since returned to profitability.
The call centre manager gave evidence to the Tribunal and in particular her role in facilitating the claimant on her return from maternity leave in April 2012. She had worked the hour from 1pm to 2pm in the afternoons to allow the claimant finish at 1pm. The arrangement was not long term as service levels had to be maintained. The witness was involved in the streamlining and restructuring of the shifts. The new shift patterns did not get rid of part time shifts as they were still available at weekends. The witness met with the claimant on the 17 July 2012 to explain the new shift patterns. The claimant refused the 8am to 4pm shift and all other options put to her. The claimant did not mention that this was a redundancy situation during any of the discussions they held. The new shift patterns came into effect on the first Monday in September and the claimant did not return to work.
The claimant commenced employment with the respondent in July 2010. On returning from a period of maternity leave her agreed shift pattern was 8am to 1pm. In July 2012 she was informed that the 8am to 1pm shift would no longer be available. Other shift options were offered but were unsuitable due to her childcare arrangements. The claimant suggested three days 8am to 1pm and two full days which the respondent could choose but this option was not agreed. The call centre manager one week later offered twenty six hours over the weekend shifts. The claimant at that stage sought a copy of her contract of employment and suggested that her job was being made redundant. The call centre manager informed her that it was not a redundancy situation. On the days leading up to her employment ending she met with the chief executive who asked she sign a contract however she refused to sign the contract. She commented that this was a redundancy or unfair dismissal to which he replied “you will not get a fucking penny out of me”. At that point she indicated that she would seek legal advice. She had no hours or shifts for the following week and did not return to work.
Determination
The Tribunal is satisfied that the respondent offered the claimant suitable alternatives and that it was unreasonable for the claimant to turn down all of the alternatives. The claimant had an unreasonable and unrealistic expectation that she could remain working the 8am to 1pm shift.
The Tribunal do not believe the claimant was unfairly dismissed. In the claimant’s own evidence she stated that she had no hours to return to in effect abandoning her employment. The claims under the Unfair Dismissals Acts, 1977 to 2007 and Minimum Notice and Terms of Employment Acts, 1973 to 2005 are therefore dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)