UD1100/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                               CASE NO.

EMPLOYEE                                                                                                             UD1100/2012

Against

EMPLOYER

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr E. Harrington

Members:     Mr D. Hegarty

                    Mr O. Wills

heard this claim at Cork on 10th December 2013

Representation:

Claimant:

             Mr. Terence English, Murphy English & Co., Solicitors, 33-34 Cook Street, Cork            

Respondent:

            Mr. Damian Cahill, IBEC, Knockrea House, Douglas Road, Cork.

Background

The Claimant alleged unfair dismissal in the following circumstances:

1. Claimant commenced employment as a cleaning supervisor with the Respondent in Cork in August 2006
2. Claimant went on maternity leave in July 2009
3. Claimant delayed her return to work as a result of severe back pain and post natal depression
4. In February 2012, the Claimant contacted the Respondent’s HR Department in Dublin and sought to return to work, indicating a preference to work in a different site location with reduced hours, if possible.
5. In a subsequent phone-call, the Claimant said she was informed that her job had been given away and was gone
6. The Claimant’s solicitor wrote to the Respondent in May 2012 complaining about what had occurred, but did not receive any response.
7. The Respondent denied any dismissal ever took place, maintaining that the Claimant’s position remained open to her.

Evidence was given by witnesses on behalf of both parties.

Determination

1. In relation to the preliminary issue of whether there was a dismissal, the Tribunal noted the following:

1. The Claimant's evidence was that she had contacted the HR Department of the Respondent by telephone in February 2012, indicating her wish to return to work, as she was no longer sick. She acknowledged that in her discussion, she had said she would like to work at a different location, with different co-workers, on a shorter week, but stressed that she said if this was not possible she would return to her original prior post.

1. The Claimant said that in a subsequent phone-call, with the same representative of the HR Department, she was informed that her job was "gone".

1. By letter of 31 May 2013, a Solicitor then retained by the Claimant wrote to Respondent and noted specifically that "she was told that her job had been given away" and "there was nothing here for her".

The letter was date stamped as received by the Respondent on 1 June 2012.

1. The Respondent 's position was as follows:

• the telephone discussion with the HR department did take place, but the Claimant had only indicated a willingness to return if conditions set out by her were met

• the Claimant was never told her job was gone

• the Claimant remained on the payroll as an employee of the Respondent

• there was no dismissal

1. The Respondent acknowledged that it had not contacted the Claimant or her solicitor at any time prior to December 2013

1. The Tribunal finds the Claimant to be a truthful and reliable witness. No direct evidence was called by the Respondent to contradict her version of the phone-call. The relevant HR employee of the Respondent had since left the employment of the Respondent and was not called to give evidence. Even if the Claimant misunderstood what had been said to her, the Respondent at no stage sought to clarify its position, nor did it respond to the solicitor's letter of 31 May 2013 to point out that the Respondent's position was that the Claimant's allegations were misconceived and that in fact her employment continued and the Claimant's job remained available.   The Claimant' representative informed the Tribunal that the first communication from the Respondent to indicate that the Claimant had not been dismissed was received on the 6th December 2013, being the Friday preceding the Tribunal hearing.

     Accordingly, the Tribunal finds that the Claimant was dismissed.

2. In terms of loss, the Claimant stated the following:

1. she had actively sought employment but had only secured other jobs at a significantly reduced rate of pay in more demanding positions, with fewer hours of work available to her, after periods of unemployment.

1. that it would be unreasonable to expect her now to return to work with the Respondent, where in effect the relationship of mutual trust and confidence was now broken

3. In terms of loss, the Respondent argued as follows:

1. the Claimant was not in a position to return to work in February 2012, as she had not provided an appropriate medical certificate at that time

1. the Claimant was in some way responsible for not querying her purported dismissal, in that she should have contacted other members of the management team who were personally known to her

1. the Claimant only ever wanted to return to part-time work

1. her travel allowance should not be taken into account in computing her loss

1. the Claimant was failing to mitigate her loss by taking up the post which the Respondent said remained open to her

1. the Claimant had delayed from February 2012 to May 2012 in bringing her grievance to the attention of the Respondent

Determination

The tribunal finds that the claimant did not fail to mitigate her loss nor did her conduct contribute to her losses. Taking all factors into consideration, the Tribunal finds that the claimant was unfairly dismissed and awards the sum of €14,000 to the claimant under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)