EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Employee UD2328/2011
- claimant
against
Employer
- respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. T. Ryan
Members: Mr. R. Murphy
Mr S. O’Donnell
heard this claim at Dublin on 5th September 2013
Representation:
Claimant(s) : John McKenna, Woods Ahern Mullen, Solicitors, Third Floor, Elgee Building,
Market Square, Dundalk, Co. Louth
Respondent(s) : Helena Broderick, Collier Broderick Management Consultants, Unit 17,
St. Olave’s Bus Centre, Malahide Road, Kinsealy, Co. Dublin
The determination of the Tribunal was as follows:-
Dismissal was in dispute in this case.
Background:
The claimant was employed as a Production Operative from the 21st June 2010. In November 2010 she informed the respondent of her pregnancy with an expected due date of the 28th June 2011.
The claimant was having pregnancy health related difficulties and was given shorter hours. Sometime later she moved to the QA Department on the 3rd May 2011. On the 4th May 2011 she emailed Human Resources (VG) informing her that she would be commencing her maternity leave on the 4th July 2011 but was taking two weeks annual leave from the 29th June to the 1st July 2011.
A letter, dated the 10th June 2011, was received by the claimant confirming the date of the commencement of her holidays. However it stated that her employment would cease on the 4th July 2011 and her holiday pay and P45 would be completed and sent to her. On the 14th June 2011 she emailed VG looking for all her contracts. On the 15th June 2011 having received the letter dated the 10th June 2011 she contacted the respondent company. She spoke to VG about the letter. On the 21st June 2011 the Production Manager contacted her (who was not present at the hearing to give evidence or be cross-examined).
On the 17th November 2011 the claimant’s solicitor wrote to the respondent calling for the claimant to be reinstated within 5 days and if there was no reply there was no alternative but to take a claim under the Unfair Dismissals Acts, 1977 to 2007 to the Employment Appeals Tribunal. VG replied on behalf of the respondent stating the claimant was still working for the respondent but on maternity leave. The claimant was due to return from maternity leave on the 3rd July 2012.
On the 12th January 2012 VG wrote to the claimant enquiring if she was taking extra maternity leave and when she was returning to work. The claimant’s solicitor replied stating the letter dated the 12th January 2012 contradicted the letter of June 10th 2011 regarding the claimant’s employment. It also stated the claimant had taken a claim under the Unfair Dismissals Acts, 1977 to 2007 to the Employment Appeals Tribunal. A reply stated the claimant had been re-assured by the Production Manager (not present) that her job was still there for her. The claimant replied requesting her P45 and said she could not return to a job she was terminated “in detail” and would not be returning.
Claimant’s Position:
The claimant maintains she was never told at her interview that it was a one year fixed term contract. She felt she had a permanent role. VG had not reassured her in a telephone conversation that her position was safe. In fact when she, the claimant, told her of the contents of the letter of the 10th June 2011 VG said there was nothing she could do. There was never any mention that her position was safe until her solicitor contacted the respondent company.
When asked why she had not returned to the respondent company she replied she could not return as she felt very uncomfortable about returning to a place where her employment had been terminated.
She gave evidence of loss.
Respondent’s Position:
The respondent maintained the claimant was given a fixed term contract to commence on the 21st June 2010 which was to expire on the 20th June 2011. They admitted the contents of the letter of the 10th June 2010 regarding the claimants termination was an error. A meeting was to be arranged with the claimant and the Production Manager (who was not present at the hearing to give evidence or be cross-examined).
Determination:
The Tribunal have carefully considered the evidence adduced. A letter dated the 10th June 2010 to the claimant stated her employment would be terminated on the 4th July 2011. There is a conflict of evidence as to the conversation between the claimant and VG regarding whether her position was safe. There was a call and emails between the claimant and the Production Manager but these issues could not be tested before the Tribunal as the Production Manager was not present to give evidence or be cross-examined on them.
The claimant’s solicitor wrote to the respondent in November 2011 and it was only then the respondent put it in writing that the position was still open to the claimant and she was still on the payroll.
The claimant, in her evidence of loss, admitted that she had not looked for alternative employment but decided to raise her child.
The Tribunal finds the claimant was unfairly dismissed. As she did not mitigate her loss the Tribunal can only award the maximum sum of 4 weeks gross pay. Accordingly, the Tribunal awards the sum of € 1,348.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)