EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Clodagh O’Brien UD325/2013
- Claimant
against
Thomas Kiely T/A Thomas Kiely Catering
- Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. Hurley
Members: Mr. J. Horan
Ms. S. Kelly
heard this appeal at Clonmel on 15th October 2014
Representation:
Claimant: Fergus Murrihy, Redundant Workers Centre,
St. Mary’s Adult Education Centre, Island Road, Kings Island, Limerick
Respondent: Peter O’Dea, O’Connor O’Dea Solicitors, 40, South Quay, Newcastle West,
Limerick
The determination of the Tribunal was as follows:
Background:
The claimant first commenced employment with the respondent on a casual basis in May 2012. Having been successful in attaining a catering contract in two schools – Newport and Nenagh, the respondent contacted the claimant to work in the Newport college as a Catering Assistant in July 2012. The claimant accepted the position informing the respondent that she was pregnant. He congratulated her.
She commenced employment in the college on the 27th August 2012 but her employment was terminated on the 14th September 2012.
The claimant’s maintains she was dismissed because she was pregnant.
Respondent’s Position:
The respondent gave evidence. He explained that the claimant had been hired as a Catering Assistant only. Over the course of time, he says, it became apparent it was not financially viable to keep the claimant and a qualified chef in employment in the college. Having discussed the matter with his accountant it was decided that the claimant’s employment would be terminated. He told the Tribunal that the reason he chose the claimant was that she had no experience of working in an industrial kitchen and had no HACCP training.
It was decided that the qualified chef would move to the premises in Nenagh and he, the respondent, would run the premises in Newport. However, due to personal issues he had to hire a previous qualified employee to cover the premises while he took time off.
He explained to the Tribunal that he had sought employment advice from a Government department before dismissing the claimant.
On cross-examination he said that he had not informed the claimant that he had been awarded a three year contract with the college. He again stated that he had not dismissed the claimant because of her pregnancy, it was for financial reasons.
Claimant’s Case:
The claimant gave evidence. She agreed the respondent had congratulated her on her pregnancy and had informed her he had to terminate her employment because of financial reasons. However, he had hired another employee a week after her dismissal and therefore her dismissal could not have been because of financial reasons.
She told the Tribunal that she had previously worked on her own initiative in the Newport premises but this was before the new contract had been acquired. However, the requirements of the customers had been slightly different at that time.
When asked she said that she did have her HACCP qualification but that it had expired and she waiting to be notified to attend a refresher course.
She gave evidence of loss.
The claimant’s husband gave evidence of meeting the person who had replaced his wife, the claimant, after her dismissal.
Determination:
The Tribunal have carefully considered the sworn evidence and submissions adduced in this matter. The Tribunal are of the view that the claimant has adduced sufficient evidence to displace the statutory presumption as set out in the Unfair Dismissals Acts, 1977 to 1993 as amended by the Maternity Protection Act, 1994 that her employment was terminated by reason of her pregnancy. In particular the Tribunal takes into account the evidence of the respondent that he informed the claimant early in her employment that the respondent’s position was perilous as evident by the bank statements he submitted to the Tribunal at the hearing.
Accordingly, the Tribunal finds the claimant was not unfairly dismissed and her claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)