EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Eilish Kenny - claimant
RP874/2013
UD1281/2013
MN652/2013
against
Aidan McGrath & Henrietta McGrath T/A Aras Chois Fharraige - respondent
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B L
Members: Mr T. Gill
Ms H. Murphy
heard this claim at Galway on 11th December 2014
Representation:
_______________
Claimant(s) : Mr. Adrian Harris, Padhraic Harris & Co., Solicitors,
Merchants Gate, Merchants Road, Galway
Respondent(s) : Ms. Siobhan McGowan, Purdy Fitzgerald, Solicitors,
Kiltartan House, Forster Street, Galway
The claim under the Redundancy Payments Acts 1967 to 2007 was withdrawn by the claimant’s representative at the commencement of the hearing.
Summary of Case
The claimant was employed as a care assistant by the respondent nursing home from early 2006. Initially she worked 24 hours per week but her hours were subsequently reduced to 12 hours per week. This was done by way of a 12 hourly shift each Wednesday. She was paid €120.00 per week for this shift.
The claimant gave evidence that in February 2013 she telephoned the owner of the nursing home, known as (A) and enquired as to how much notice she would be required to give on terminating her employment. She also requested a reference as she was seeking employment in another nursing home in the area, which would provide her with an increase in her weekly working hours. She told the Tribunal that she indicated to (A) during the telephone conversation, that she would be leaving his employment when she had sorted out her finances, but she did not give him notice that she was leaving her employment. She gave evidence that she stated that she would let him know when she had made the decision to leave. She confirmed that she did receive a reference and continued working for the respondent.
She gave further evidence that she then received a telephone call from another staff member on 25 March 2013 informing her that she was not rostered for duty on Wednesday, 27 March 2013 and her P45 and two weeks pay were available for collection. She was shocked to receive such a call and telephoned the matron in charge. She gave evidence that she did not enjoy a good working relationship with the matron who hung up the telephone during the course of the conversation.
She exchanged further written correspondence with (A) by way of letters dated 26 March 2013 and 1 April 2013 copies of which were opened to the Tribunal. Her legal representative then wrote to (A) by way of letter dated 22 August 2013 seeking a response to her instructions that she had been unfairly dismissed. No reply was received to this letter.
(A) gave evidence that heenjoyed a cordial working relationship with the claimant. He gave evidence that he received a telephone call in January 2013 from the claimant and she informed him that she was applying for a position in an alternative nursing home and “she would be getting out of his hair”. She also sought a reference from him and he was happy to provide her with a reference, a copy of which was opened to the Tribunal. He accepted that the claimant was going to be provided with an increase in her working hours with the alternative nursing home, hours which he was unable to offer. He had no difficulty with this and gave evidence that an agreed date for the termination of her employment was set for the end of March 2013. This was to allow for a smooth transition of her employment and he was happy to facilitate this transition. He arranged for the paperwork to be put in place for this smooth transition and went on holidays in March 2013.
On 25 March 2013 he received a text message from the claimant which he was disappointed to receive. He replied to this message by way of letter dated 26 March 2013. This letter outlined his position confirming inter alia that there was no question of her being ‘sacked’. He believed that he had facilitated the claimant in the context of her obtaining employment with the alternative nursing home employer. He received further correspondence from the claimant and her legal representative. He did not reply to this correspondence as he did not want to engage in confrontation with the claimant.
Determination
The fact of dismissal was at issue in this case. The Tribunal after giving careful consideration to the evidence adduced is satisfied that the claimant’s employment terminated by mutual consent at the end of March 2013, in order to facilitate the smooth transition of the claimant’s employment with the respondent to another employer.
In those circumstances the Tribunal finds that the claimant was not unfairly dismissed and the claim under the Unfair Dismissals Acts 1977 to 2007 fails.
The claim under Minimum Notice and Terms of Employment Acts 1973 to 2005 also fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)