EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Natalija Orlova UD1545/2013
against
Global Fruit Company Limited
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. J. Revington SC
Members: Mr. J. Horan
Mr. N. Dowling
heard this claim at Dublin on 30 December 2014
and 9 March 2015
Representation:
_______________
Claimant(s):
Mr. John Daly, 35 Bolton Court, Henrietta Place, Dublin 1
Respondent(s) :
Mr. Alastair Purdy, Purdy Fitzgerald, Solicitors,
14 Bachelors Walk, Dublin 1
The determination of the Tribunal was as follows:-
Giving sworn testimony, RM (the respondent’s commercial director) said that the respondent imported and distributed fruit. The business had been in Ireland for over fifty years. The work done by the claimant was mainly administration. It was an important role. The respondent had an open-plan office. The claimant and RM sat about five metres from each other.
There was a meeting on 18 September 2013. The purpose was to talk to the claimant. There had been a meeting a few weeks earlier. The claimant had not wanted to stay in the respondent. RM called the meeting. He, the claimant and NH (chairman and owner of the respondent) attended. NH would visit almost daily to guide the respondent. RM asked NH to be present at the meeting. RM asked the claimant if she wanted to have someone attend with her. The claimant said no. NH said that she could have someone with her. NH himself was a father and grandfather.
The claimant had said that she did not want to stay with the respondent. She had said that she and her husband were thinking of setting up a business. It was clear that the claimant wanted to leave. RM offered to help and provide a reference. RM was comfortable that the claimant was happy to leave. She was not asked if she was pregnant.
Subsequent to the meeting RM received correspondence from the claimant alleging that she had been dismissed. RM replied and another meeting was held. The claimant owned up to giving a different interpretation of the previous meeting. The claimant ultimately took sick leave and left the respondent. RM was sure that she had not been dismissed. It was not in his remit to hire or fire.
Giving sworn testimony, NH said that he had started the business in 1958. He went in to the respondent daily. He went to the meeting on 18 September 2013. RM went through the procedures. The claimant had said that she would start a business with her husband. She was not dismissed at the meeting. She declined an offer to bring someone to the meeting.
There had been problems with administration. Asked why the claimant would need a representative, NH said that RM had wanted him in to hear what was said. There was a serious administration problem. It was said to the Tribunal that the purpose of the 18 September 2013 meeting had been to discuss administration.
There had been problems with the claimant’s work and it was being attempted to resolve them. The claimant said she was starting a business with her husband. It was not denied that the respondent was conscious of employee numbers at that time. Someone was brought in to deal with the claimant’s work on a part-time basis.
When it was put to NH that a very grey picture was being painted he replied that, when an order came in, customers would not pay the respondent if it were not put correctly on the respondent’s system. Administration work was not right. Asked what was said to the claimant about the problem, NH replied that the claimant could have done better. He took from the meeting that the claimant was leaving. NH was not involved day-to-day but a signed docket had to come back correctly entered.
Recalled to give further sworn testimony, RM said that the purpose of the 18 September 2013 meeting had been to talk to the claimant with NH as a witness. He offered the claimant representation at the meeting itself but not before. A loose meeting note was given to the Tribunal. NH stated that the respondent had had concerns but that the claimant had wanted to move on.
Giving sworn testimony, DH (managing director of the respondent) said that he had dealt with the claimant from 19 April 2013 to the end of her employment. They had issues. Orders workings were missing. The claimant did some things well but she put business at risk.
Asked why the disciplinary procedure had not been used, DH replied that the respondent had not wanted to dismiss the claimant who had asked to take on the administration role. DH told the Tribunal that e-mail correspondence from the claimant had been the opposite to what he had heard had happened at meeting stage. DH met her for only about five minutes but, subsequently, after 23 September 2013, he was satisfied that she was leaving.
Giving sworn testimony, the claimant said that had started with the respondent in August 2012 and had been a line leader before applying for the administration job she got in April 2013 and held until her employment ended on 26 September 2013.
The claimant had been out on 16 and 17 September but was dismissed as of 20 September 2013. RM had asked her to the office on 18 September 2013 and said that her post would not be needed because of work lost with a major customer (TSX) and that her work would end on Friday 20 September 2013. He said that she was leaving. No chance was given to her to have a representative. That was all. Asked if she had been asked if she were pregnant, she replied that that question had occurred at a later meeting.
The claimant did speak to RM after meeting with him. He gave her blank signed papers for reference purposes. She had taken sick leave. He asked if she were pregnant. She said no and he said that she would be in time.
Commenting on her interaction with the respondent, the claimant told the Tribunal that she indicated to the respondent that she had not agreed the ending of her job. RM had said that there was no work for her because of TSX contract loss. She heard no more from the respondent from which she had got no formal warnings or even company handbook.
She had got no work since 26 September 2013. It was agreed by the representative of both the claimant and representative that she had earned a salary of twenty-eight thousand euro per annum when with the respondent. She had looked for new work and had applications. She was an unpaid director of her husband’s car valeting business.
Determination:
The Tribunal heard detailed cross-examination as well as the direct testimony of the above witnesses.
The claim under the Unfair Dismissals Acts, 1977 to 2007, succeeds because, the Tribunal, after considering the position of both sides, prefers the evidence of the claimant. In all the circumstances of the case, the Tribunal considers compensation to be the appropriate redress and unanimously deems it just and equitable to award the claimant the sum of twenty-five thousand euro (this amount being equivalent to 46.4287 weeks’ gross pay at €538.46 per week) under the Unfair Dismissals Acts, 1977 to 2007. The Tribunal gave consideration to the extent to which the claimant strove to mitigate her loss subsequent to her employment with the respondent.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)