EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Prestige Foods Limited UD880/2012
against the recommendation of the Rights Commissioner in the case of:
Daiva Gutauskiene
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. O'Connor
Members: Mr D. Hegarty
Mr O. Wills
heard this appeal at Killarney on 28th March 2014 and 9th June 2014
Representation:
Appellant:
Mr. Neil J Breheny, Neil J Breheny & Co, Solicitors, 4 Canada Street, Waterford
Respondent:
Mr. Martin Corbett, SIPTU, Connolly Hall, Lapp's Quay, Cork
This case came before the Tribunal by way of an appeal by the employer against the Rights Commissioners decision Ref: r-118662-ud-11/GC.
Respondent’s (the employee) case
The appellant is a food processing and packaging plant specialising in ready made meals. The respondent was employed in the plant from 4th April 2005 until 9th September 2011, initially as a General Operative but after two years as a Supervisor.
The respondent required an operation on her foot and after the operation she was on sick leave for some time. On 24th August 2011 the respondent received a certificate from her doctor certifying her fit to return to work. However she then applied for and was granted 10 days annual leave in order to return to her homeland and was due to return to work on or around 6th September 2011. The respondent had also been advised by her doctor not to wear steel toed safety boots for six months. The respondent was aware of alternative plastic toed safety boots and provided a brochure to the appellant. She also purchased a pair of these boots while on leave in her homeland.
On 24th August 2011 the respondent met with a Director and the HR Manager of the appellant and applied for ten days annual leave and flagged to the Director that there was a problem with her wearing the steel toed safety boots. On her return from holidays the respondent again raised the issue of the safety boots with the Director. However on this occasion the respondent did not meet with the HR Manager and did not meet the HR Manager at any other stage. The respondent expected the Director to get back to her. However instead of this the next communication the respondent received from the appellant was her P45 which she received in October 2011. The respondent denied that she had resigned and held that she had been unfairly dismissed by the appellant. The respondent speaks very little English and therefore her son, who also worked for the appellant, acted as interpreter during these meetings. The respondent’s son also told the Tribunal that they had only one meeting with the HR Manager, which was on 24th August and that his Mother never told the Director or the HR Manager that she was resigning.
The respondent was in receipt of Job Seekers Benefit from September 2011 until it expired and she was actively seeking employment in this country until she returned to live in her homeland in February 2014.
Appellant’s (the employer) case:
Both the HR Manager and the Director of the appellant met with the respondent on 24th August 2011. The Director initially met the respondent and her son who also worked for the appellant and acted as interpreter for his mother. This meeting took place in the lobby of the building and was concerning the issue of safety boots. It was the Directors evidence that the respondent gave him a brochure about the boots at that meeting and that he was to consider the suitability of those boots and get back to her. They then went to the office upstairs as the respondent wanted to apply for holidays instead of returning to work at the expiry of her sick leave and this was to be dealt with by the HR Manager. There was some friendly discussion between the respondent and the HR Manager and the respondent was granted 10 days annual leave.
The respondent was to return to work on 6th September 2011. However she and her son attended the office on 8th September 2011 having returned from holidays and told the Director and the HR Manager in a meeting that she was resigning as she no longer needed to work. The HR Manager was very surprised at this and asked the respondent a number of times if she was sure about resigning as jobs were hard to come by but the respondent was adamant.
The HR Manager no longer works for the appellant and was not employed there when the Director received a letter from SIPTU in November 2011 on behalf of the respondent seeking reasons why she was dismissed. However the Director told the Tribunal that he phoned the author of that letter and told him that the respondent had not been dismissed but had resigned and that he, the union representative, should revert to the respondent. The Director received no other contact from the union representative and the next he knew of the issue was when he received notification that a claim had been lodged with the Tribunal. The union representative who wrote the letter was not present at the hearing.
It was the appellant’s position that the respondent was not dismissed but that she resigned of her own volition.
Dissenting opinion:
The Tribunal decided by a majority decision that the respondent was not unfairly dismissed by the appellant. Mr. Owen Wills dissented as follows:
The relevant facts I adduced from all the evidence given were:
(a) The respondent had a foot condition that made it difficult to wear the footwear provided by the appellant. The footwear had steel toe caps that expanded or contracted depending on the work areas she worked.
(b) The appellant operates in the food industry where the areas of Health and Safety. Quality control and Hygiene is critical to the integrity of the process. All employees are required to wear approved apparel and footwear which is approved and monitored by the Quality control/hygiene department.
(c) The respondent, on her doctor’s advice, sought leave from the appellant so she could have an operation on her foot late in 2010, the appellant requested that she would defer her operation until after January 2011 due to work pressures. The respondent acceded to the request and had the operation in 2011.
(d) On the 24thAugust 2011 the respondent received a medical certificate from her doctor to resume work conditional on not wearing the steel toe cap footwear for 6 months
(e) On the same day (24th Aug.) the respondent went to her employment and met with the appellant she presented the certificate, alternative footwear (she had purchased) and brochure which she had been advised met the same ISO standards as the current footwear but did not have steel inserts. After some discussion the appellant (Mr.O’C) took the brochure and he said he would refer it to Mr.J.M in the Quality Department, the option of working in the Packing room was also discussed. The appellant Mr.O’C agreed he would revert to the respondent on the matter. It was also agreed after the appellants HR Manager (Ms.A.M) checked the files that the appellant would take 10days outstanding annual leave before she would resume work.
(f) On the 8th September 2011 the respondent went to the appellants premises and met the appellant. In evidence the respondent stated she attended to enquire about her resumption of work as she had not heard from her employer.
The appellant stated that the employee attended and said ‘she was leaving work’ and ‘I don’t need to work.
(g) A P45 with a termination date of the 9th September 2011 along with a reference was left in a locker on the appellants premises for collection which the respondent acquired in October 2011.
(h) On the 14th November 2011 the respondent’s union SIPTU wrote to the appellant as follows:
‘We refer to the above member of this Trade Union, who was an employee of Prestige Foods until September of this year, when her employment was terminated. However our member was not given any reason for same, i.e. no letter of dismissal was issued to her. It would be greatly appreciated if you would advise the undersigned of the reason for her dismissal, by return.
The appellant (Mr.O’C) in evidence stated that he contacted the Union official by phone and informed him that the employee had resigned.
The respondent (Ms.D.G.) in evidence stated that in contacting the Union official to enquire about progress she was informed ‘There was no contact’ ‘we have to proceed’
Conclusions:
Having done an analysis of all the evidence and facts I am convinced by both the consistent and credible evidence of the respondent along with the proactive actions taken to secure a resumption of her employment that the respondent was Unfairly Dismissed and no resignation existed.
I found that the appellant failed to show that the dismissal was fair and reasonable or a resignation took place in that:
It never responded to the options discussed at the meeting of the 24th August 2011.
It failed in accordance with Section 14 (4) of the Unfair Dismissals Act, 1977 to respond in writing to the Union letter of the 14th November 2011.
Given the consequences of the termination of employment and in particular given the poor language skills of the employee the employer was obliged to adopt fair and reasonable procedures to ensure that it was understood by all that a termination of employment was occurring.
Hence it is my opinion that no resignation took place and the appeal should fail and the Rights Commissioners recommendation should stand in this instance.
Determination:
The Tribunal carefully considered the evidence, both oral and written, adduced at the hearing.
There was clearly a conflict in evidence between the parties. On the one hand the respondent said that she never resigned from her employment on 8th September 2011 or at any other time and that she was dismissed by way of the issuing of her P45 in October 2011. Furthermore the respondent denied that the meeting of 8th September was attended by the HR Manager. On the other hand the appellant’s witnesses told the Tribunal that the respondent resigned of her own volition at a meeting on 8th September 2011 attended by the respondent and her son on one side and the HR Manager and a Director on the other side.
The respondent told the Tribunal that she had signed on for Job Seekers Benefit in September 2011 and that she received her P45 in October 2011. However she also told the Tribunal that she was awaiting a response to her request for alternative safety boots and that she was shocked when she received her P45. It was the respondent’s evidence that she did not realise she had been dismissed until she received her P45. The Tribunal is therefore dismayed at how the respondent concluded that she ought to claim Job Seekers Benefit in September 2011 and yet was shocked at getting her P45 in October 2011.
On the balance of probability and in all the circumstances the Tribunal finds by a majority decision that the respondent was not dismissed but resigned of her own volition. Accordingly the appeal by the employer against the Rights Commissioners decision Ref: r-118662-ud-11/GC is upheld and the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)