EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Louise Colleton UD351/2013
MN193/2013
against
Sean Fitzpatrick
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony B.L.
Members: Mr. J. Hennessy
Mr. F. Keoghan
heard this claim at Kilkenny on 23rd April 2014
Representation:
Claimant:
Mr Brian Hughes, Brian D. Hughes & Co, Solicitors,
"Longmall", Slievenamon Road, Thurles, Co Tipperary
Respondent:
The respondent in person
Dismissal was in dispute.
Summary of Evidence.
The claimant commenced employment with the respondent on 1st June 2011. In June 2012 the claimant went on maternity leave and was due to return to work on 22nd December 2012.
The claimant’s position was that on 14th December 2012, sheasked the respondent’s wife (the manager) when she wanted her back to work and told her that part-time work would suit her better. The claimant’s assertion that the manager told heron that occasion that there was no work available for her, was strenuously disputed by the manager. The claimant did some casual work for the respondent between the start of December 2012 andaround the end of January 2013.
On 5th February 2013 the parties again discussed the claimant’s return to work. The manager telephoned her accountant about the matter and s/he advised that as the legal position was that the claimant was entitled to her job back, she should ensure that she submitted a letter resigning from her full-time position before commencing on a part-time basis.The manager’s position was that at that point she again clarified with the claimant her position about returning to full-time work and she did not want to do so. The manager asked her for a letter of resignation from her full-time position. The claimant had some concerns as to whether this might affect the maternity benefit already paid to her. However, they agreed that the claimant would resume work the following day on a part-time basis. The claimant did not return to work on 6th February as agreed and she did not answer the manager’s phone calls or respond to the voice messages she left that morning.
The claimant’s evidence was that she spoke to some agencies and her father and on the advice received she did not return to work, reply to the manager’s phone messages or make any further contact with the respondent.
On receipt of the copy of the unfair dismissal claim, the respondent’s solicitor wrote to the claimant on 5th April 2013 expressing the respondent’s surprise at this development, stating that she had not been dismissed and that her job was still available for her. The claimant did not reply to this letter.
Determination.
The claimant’s maternity leave was to expire on 22 December 2013. Towards the end of her maternity leave the claimant indicated that part-time work would be more suitable for her and the respondent was prepared to accommodate her in this. The claimant did not return to work on 22 December 2013
The Tribunal accepts the manager’s evidence that on 5th April she clarified that the claimant did not wish to return on a full-time basis and she sought a letter of resignation from her full-time position. While the claimant had some reservation about submitting a letter of resignation from her full-time position, she agreed on that date to return to work on a part-time basis the following day. Thereafter, the claimant neither returned to work nor made any further contact with the respondent.
The Tribunal finds that there was no dismissal and that the claimant abandoned her employment. Thus, she has no claim under the Unfair Dismissals Acts, 1977 to 2007.
As there was no dismissal the claimant has no entitlement under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)