EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE-claimant UD1219/2010 WT503/2010
against
EMPLOYER -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms K. T. O'Mahony B.L.
Members: Mr J. Hennessy
Mr J. Dorney
heard this claim at Kilkenny on 4th April 2012 and 24th June 2013 and 9th September 2013
Representation:
Claimant: Mr. James Kavanagh B.L. instructed by O'Brien & Associates, Solicitors,
Mill House, Henry Street, Limerick
Respondent: No appearance or representation on behalf of the Liquidator
Summary of Evidence:
The claimant commenced employment in the respondent’s hotel in May 2008 as an accommodation assistant. Initially the claimant was responsible for cleaning fourteen bedrooms during her working hours. The porter assisted the accommodation assistants, by lifting heavy items for them. However, when the porter was dismissed in the summer of 2008, the claimant and her co-worker had to do the heavy lifting involved in their work from then on. Over time the number of bedrooms which the claimant was expected to clean increased and she was allocated additional cleaning duties in the public areas of the hotel. The hotel's washing machine was broken for a period of time and the claimant was requested by her manager to take the laundry home, which she did; each of the laundry bags weighed approximately 10 kgs.
The claimant first suffered back pain in the winter of 2008 and it got worse over time until she was no longer able to do any lifting. She attended her doctor on 17 August 2009 and was certified unfit for work as well as being referred to a neurosurgeon. A medical report was submitted to the Tribunal. At a meeting in early November 2009 the claimant provided her manager with a letter from her doctor stating that she was fit for work but could not lift more than 10 kgs.
Some days later, the claimant attended a meeting with two of the respondent’s managers who suggested that she should leave the employment and when she protested that she was fit to carry out her original duties, she was told that if she did not leave that she would be dismissed. A colleague of a different nationality was able to translate some of the discussion at this meeting for the claimant.
On 9 November 2009 the claimant was requested/forced to sign a letter. The contents of this letter were in English and were not explained to her. This letter, which was opened to the Tribunal, stated that for the benefit of the claimant’s health it was mutually agreed between the parties to terminate her employment. The letter was first translated for the claimant by her daughter at home, later that day. The claimant was not asked to attend a company doctor until one year later after her dismissal and that was in relation to a personal injury claim.
The claimant would have been able to carry out the role of accommodation assistant after the date of dismissal. She had applied for similar position in other hotels. In addition, it was confirmed to the Tribunal that the settlement of the claimant’s personal injuries claim did not contain a sum in respect of loss of earnings.
Determination:
The Tribunal is satisfied that the liquidator was duly notified of the hearing. The claimant did not have a good understanding of the English language. The letter of 9 November had not been translated into her own language or its contents explained to her. The Tribunal accepts that the claimant did not understand the contents of this letter, which she was pressured to sign. The Tribunal finds that there was not a termination of her employment by mutual agreement and finds that the claimant was dismissed. As the respondent did not attend the hearing to offer any evidence to discharge the onus of proof that rests on the employer under s.6 (6) of the Unfair Dismissal Acts, the Tribunal, applying s.6 (1) of the Acts, deems the dismissal to be unfair. Accordingly, the claim under the under the Unfair Dismissals Acts, 1977 to 2007 succeeds. The Tribunal is cognisant of the fact that the respondent went into liquidation on 12 August 2010 and that the claimant’s employment would have ended on that date. Taking this into account the Tribunal awards the claimant compensation in the sum of €14,399 under the Unfair Dismissals Acts, 1977 to 2007. The claim under the Organisation of Working Time Act, 1997 was withdrawn during the hearing.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)