EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Jolene Ambrose, UD1212/2012
MN743/2012
against
John Ronan & Company Limited,
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony B.L.
Members: Mr. D. Hegarty
Ms. H. Kelleher
heard this claim at Cork on 8th January 2014
Representation:
Claimant:
Mr. Charles J. O'Connor, Charles J. O'Connor & Co.,
Solicitors, Scarteen Street, Newmarket, Co. Cork
Respondent:
Frank Nyhan & Associates, Solicitors, 11 Market Square,
(Opposite Courthouse), Mallow, Co. Cork
Dismissal was in dispute and therefore the claimant was required to present her evidence first.
Claimant’s case:
The claimant commenced employment as an office administrator with the respondent on 15th August 2011. This was a temporary position as the claimant was filling in for a permanent employee who was on carers leave. However the claimant believed that this could last for up to two years. The claimant was placed in the job by an employment agency and she was being paid by that agency.
The claimant became pregnant and on her doctor’s advice was on sick leave for one week from 10th February 2012. The claimant informed the owner of the agency (OA) and asked to inform the respondent of her absence. The doctor then advised the claimant to have bed rest until 28 March as she was at risk of having a miscarriage. When the claimant phoned the director and secretary (DS) of the respondent company, advising that she would be absent for another seven weeks due to her pregnancy DS responded that it was unfair that she would now have to train someone else for the job for those seven weeks and again when the claimant went on maternity leave. DS said that this was no good for her, that she had worked during her own pregnancies and added, “If you are going to miscarry then you will miscarry”. The claimant was shocked and confused by this conversation and did not know whether the job would be available to her at the end of her sick leave.
At some time during the week before she was due to finish sick leave the claimant phoned OA to ascertain If her job was still available with the respondent and OA informed her that it had been filled by another person and it was not open to the claimant to return there. The claimant took this to mean she had been dismissed. She later requested her P45.
The claimant contended that she was unfairly dismissed because she was pregnant.
Respondent’s case:
DS denied each and every one of the statements alleged to have been made by her to the claimant during the aforementioned phone conversation: she did not say that it was unfair that she would have train another person to replace her, she did not say, “If you are going to miscarry then you will miscarry”, she did not tell the claimant that she had worked through-out her own pregnancies.
The claimant did phone DS within the first week of sick leave to say that she would be out for seven more weeks and during this phone conversation she told DS that she did not expect the job to be kept open for her. DS wished the claimant well for her pregnancy. She was expecting that the claimant would return to work after 28th March 2012 and the position was kept open for her. During the week leading up to 28th March 2012 DS was told by OD that the claimant was not returning to work. DS had kept the job open for the claimant. The job was not filled again until three weeks after the 28th March 2012. The claimant was not dismissed by the respondent.
OD’s evidence was that the only other contact she had with the claimant apart from her initial contact regarding the commencement of sick leave, was a text message from the claimant on or about 22nd March 2012 requesting her P45. The position was not filled again until three weeks later.
The respondent’s position was that the claimant was never dismissed and that she resigned of her own volition.
Determination:
Dismissal was in dispute in this case.
There was a clear conflict of evidencebetween the claimant on one hand and and DS and OA on the other. There is conflict as to whether some phone calls were made or as to the contents of other phone conversation. Having considered the evidence, the Tribunal accepts that DS kept the claimant’s job open for her until well after her specified return date. The evidence of the owner of the agency (OA) is consistent with this version of events. Accordingly, the Tribunal finds that there was no dismissal and it has no jurisdiction to hear a claim under the Unfair Dismissals Acts, 1977 to 2007.
Where an employee resigns her position, she has no entitlement under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 and that claim is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)