EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Employee - Claimant UD292/2012
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. M. McGarry
heard this claim at Castlebar on 17th October 2013
Representation:
Claimant:
Mr. Bob McArdle, Patrick J Durcan & Co, Solicitors, James Street, Westport, Co Mayo
Respondent(s) :
Mr Peter Loftus, Bourke Carrigg & Loftus, Solicitors, Ballina, Co Mayo
Claimant’s case:
The respondent disputed that the claimant was dismissed and as such the onus was on the claimant to give evidence first.
The claimant commenced employment with the respondent on 8th September 2003 as a shop assistant and worked twenty hours per week earning €187.77 per week.
On 30th July 2011 the claimant went on annual leave and when she returned on 25th August 2011 she was told by the respondent that she was not rostered to work the following week. There was no explanation given to the claimant other than “things were quiet”. She was not given any indication of when she could return to work. The claimant took this to mean she was dismissed and asked for her P45 in order to claim Job Seekers Benefit.
Respondent’s case:
The respondent accepted that the claimant was on holidays for most of August 2011, having taken her full annual leave allowance at once. There was a need for the respondent to reorganise the rosters to suit the requirements of the business and the respondent left the claimant off the roster for the week she was due to return to work. The respondent had not realised at the time that the claimant was due back to work. When the claimant sought her P45 and told the respondent that she was seeking redundancy he was shocked and upset. As far as the respondent was concerned it was never in doubt that the claimant would be placed back on the roster for the following week but he never told the claimant this.
The respondent contended that as the claimant sought her P45 she had effectively resigned from her position.
Determination:
It is accepted by all parties that the claimant attended her place of work the week before she was due to return after holidays. It is further accepted the claimant was advised she did not have any work rostered on her return date or for that week. There was no evidence that she was offered a further week of paid leave. In the view of the tribunal this constituted dismissal. The dismissal was unfair within the meaning of the Unfair Dismissal legislation.
The Claimant was in receipt of a Family Income Supplement and is claiming this sum as part of her loss. The loss involved is outside the remit of this tribunal and cannot be part of any redress.
The tribunal considers the appropriate redress for the claimant is compensation. She claimed Illness Benefit from the date of dismissal on the 25th of August 2011 until 31st of December and was therefore unavailable for work. From January 2012 until August 2012 she was unemployed and actively seeking employment. In August 2012 the claimant gained employment albeit at a lesser rate of pay than she had been receiving with the respondent.
The Tribunal finds that the claimant was unfairly dismissed and in all the circumstances awards her €5,252.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)