EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Employee - claimant UD335/2012
against
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. F. Murphy
Members: Mr. D. Morrison
Mr T. Gill
heard this claim at Castlebar on 7th November 2013
Representation:
Claimant(s) : In Person
Respondent(s) :Mr Gearớid Ó Brádaigh instructed by Ms Regina Hopkins,
King & McEllin Solicitors, The Mall,Castlebar, Co Mayo
The determination of the Tribunal was as follows:-
Summary of Evidence
The respondents put the issue of dismissal into dispute. It was decided at the outset that the burden of proof was on the claimant to prove the dismissal. The respondent is a statutory provider of educational services to the areas of Mayo, Sligo and Leitrim.
The claimant was employed from February 2004 as a part-time tutor in the literacy service. She worked an average of six hours per week. Contract forms were completed, signed and returned by the claimant for the 2011/2012 academic year. By letter dated August 2011 she was invited to attend a meeting with the new Adult Literacy Organiser (ALO). Due to injury she was unable to attend the meeting and attempted to contact the ALO. The letter contained no contact details for the ALO so she left a message for the individual on the Ballyhaunis telephone number which was on the respondent’s website as a contact number for the ALO. She also sent an email apologising. The previous ALO always contacted her by telephone, text and email. It was usual that the ALO would meet to discuss the number of students registering, their nationality and if any had special needs in advance of the term commencing. It was not until the second week of September 2011 that she succeeded in speaking with the ALO (OR) who informed her that she was no longer needed and that her hours were given to another tutor. With regard to her email and telephone communications the claimant was told they were never received. Two further attempts at contacting the respondent were made in October 2011 and again in November 2011. In these communications she requested both her P45 and a letter explaining why her employment was terminated. These were directed to the respondents general website email address. The first response she received was in January 2012 requesting her to contact MM.
The ALO (OR) was appointed to the role in June 2011 following the closure of the Ballyhaunis centre. The then CEO suggested she meet with all the tutors she wrote to each one individually and included a time and date to meet. The letter was dated the 12 August 2011 and was opened to the Tribunal. Classes were due to commence on the second week of September and as she had received no communication from the claimant she allocated the hours to another tutor. The claimant contacted her between the 15th and the 20th of September. OR was initially shocked and embarrassed when she spoke with her admitting she had allocated her hours to another tutor. The conversation ended suddenly. The witness genuinely believed the claimant was no longer interested in the hours. OR did not indicate at any stage that the claimant’s employment was ended and in her role as ALO this was not within her power. She denied saying that the claimant was no longer wanted. Had the claimant indicated she was interested in hours she would have contacted personnel to check the options available. OR was new to the position at the time and accepted that not having included any contact details on the letter of the 12 August did not help the situation. OR did not consider making contact with the claimant either by telephone or email before concluding the claimant was not interested in teaching hours.
MM the manager responsible for contracts and also responsible for emails directed to the respondent’s website responded to the claimant’s email in January 2012. Although the claimant had returned her contract for the adult tutor panel there was nothing unusual about a tutor not returning in any given year. The claimant failed to make contact. The respondents did not consider making telephone or email contact with the claimant before January 2012. The witness again attempted to make contact in April 2012 with no success.
HR manager (TR) was on a period of long term sick leave during the time the claimant’s employment ended. The HR department was experiencing staff shortages and staff were under a lot of pressure at that time. August, September and October were described as extremely busy periods for the respondent. It is common for tutors to drop in and out of the service in circumstances where they gain temporary alternative employment.
The witness spoke of the claimant in a very complimentary manner describing her as a capable and professional tutor and recalled previously facilitating her in holding an interview with her following the claimant arriving late. The email address to which the claimant emailed was a generic email address and had the claimant succeeded in making contact directly she could have accommodated her. TR is satisfied that the ALO acted appropriately. In TR’s mind the claimant was never dismissed.
Determination
The Tribunal carefully considered the evidence of both parties in the case. A series of unfortunate circumstances arose which resulted in the claimant failing to attend a meeting at the appointed time. The fact that there was no return contact details on the appointment letter and that the respondents website directed telephone and emails to a defunct address created the difficulty that the claimant found herself in. The claimant as a result, clearly experienced great difficulty in making direct contact with the ALO and this was accepted by the HR manager. The claimant in following the instructions on the respondent’s own website directed her correspondence to an email address for the ALO which was not picked up. Unfortunately for whatever reason, the respondent did not consider it appropriate to make direct contact with the claimant at an earlier stage.
In spite of the difficulties in communication the Tribunal is unable to accept the claimant’s contention that she was actually dismissed and that such dismissal was unfair within the meaning of the Unfair Dismissals Acts. She failed to prove that a dismissal occurred in the first place.
The Tribunal note that the respondent acknowledged openly at the hearing the professionalism of the claimant as a tutor and were willing to acknowledge that they might consider her inclusion on any future panels should the claimant seek to be included.
The claimant failed to discharge the burden of proof and the claim under the Unfair Dismissals Acts, 1977 to 2007 must fail.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)