UD1260/2012

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms P. McGrath BL

Members:     Mr T. O’Grady

                     Mr F. Keoghan

heard this appeal at Dublin on 24 February 2014

Representation:

Employee:

                    In person

Respondent:

         Ms Paula O’Hanlon, IBEC, Confederation House,

         84/86 Lower Baggot Street, Dublin 2

The determination of the Tribunal was as follows:

These cases came before the Tribunal with the employee appealing against a recommendation of a Rights Commissioner R-117748-UD-11/DIunder the Unfair Dismissals Acts, 1977 to 2007.

Dismissal as a fact being in dispute it fell to the employee to prove that she had been dismissed.

The employee was employed by a recruitment agency (the agency) and on 14 March 2011 the employee was engaged by the agency to work as a general operative/production operator in the respondent’s manufacturing plant. During April 2011 the employee advised the respondent that she was pregnant. On 4 May 2011 the employee, who was experiencing difficulty with her pregnancy, submitted a medical certificate to the respondent to the effect that she was unfit for work for two weeks and thereafter should not engage in physical work, including lifting heavy objects. This certificate was forwarded by the respondent to the agency.

On 10 May 2011 the respondent’s human resource generalist (HR) sought cover for the employee from the agency as the employee was unable to fulfil her role with the respondent. It was the respondent’s position that there was no alternative work available for the employee which did not involve lifting. On 23 May 2011 the employee wrote to the respondent, with a copy to the agency, to enquire as to whether a risk assessment had been carried out in relation to threats to pregnant women such as her. The employee suggested that there were several tasks within the respondent, such as inspection work, that she would be able to carry out.

On 8 June 2011 HR wrote to the agency’s operations manager to confirm that it was more appropriate for the agency to reply to the employee’s letter. The letter confirmed that the respondent had no suitable position for the employee but still needed a replacement for her.

On 1 June 2011 the agency’s account manager (AM) wrote a “To Whom It May Concern letter” and sent it to the employee. This letter is in the following terms:-

This letter is to certify that the employee was a temporary employee of the agency. The employee had been working with us from 14 March to 4 May 2011 as a production operative. Unfortunately we do not have any suitable position for her at the moment.

If you have any queries please do not hesitate to contact our payroll department on ……….

Kindest regards

AM

The employee considered this letter as one of termination and instituted proceedings against the agency under the Employment Equality Acts alleging discriminatory dismissal. After an unsuccessful mediation process the employee did not pursue that matter any further.

Determination:

The Tribunal is satisfied that the employee was justified in considering that she had been dismissed by the agency by reason of the letter of 1 June 2011 from AM. There is no evidence to suggest that she was dismissed by the respondent against whom the within claim was lodged. The employee did not seek to pursue an unfair dismissal claim against the agency despite having, initially at least, pursued a claim of discriminatory dismissal against the agency. The employee was not dismissed by the respondent and, accordingly, the claim under theUnfair Dismissals Acts, 1977 to 2007 fails and the recommendation of the Rights Commissioner is upheld.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)