EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Malgorzata Borucka UD404/2013
-claimant MN214/2013
WT59/2013
Against
Corporate Staffing Solutions Limited (In Liquidation) - first respondent
AP Corporate Staffing Solutions Limited T/A Allpro Services -second respondent
A.P. Corporate Management Services Limited-third respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K. T. O'Mahony B.L.
Members: Mr J. Hennessy
Mr J. Flavin
heard this claim at Killarney on 2nd July 2014
Representation:
_______________
Claimant: Mr Richard Liston B.L. instructed by,
Ms. Miriam McGillycuddy, Solicitor, Derryana, Ballyard, Tralee, Co Kerry
First Respondent : Mr Patrick Horkan, KMPG, Odeon House, Eyre Square, Galway
Second Respondent : No appearance on behalf of the second respondent
Third Respondent : No appearance on behalf of the third respondent
Summary of Evidence
The claimant commenced employment with the first respondent on 3 March 2011. On 16 April 2012 the first respondent went into liquidation. By letter dated 25 April 2012 from Allan Connolly of the second respondent, the claimant was notified that the first respondent was placed in liquidation on 16 April 2012 and her employment had not been terminated and the clear implication of the further content of the letter is that her contract of employment was transferred to the second respondent as of 1 April 2012 The claimant continued to work as normal until she went on maternity leave on 13 May 2012.
The claimant received payslips dated 30 April 2012 from both the first respondent and the third respondent. The claimant was told by her supervisor that this was normal, that the company changed its name every couple of years. The claimant also received her Terms and Conditions of Employment and a disciplinary procedure from the second respondent.
A month before the claimant was due to return from maternity leave she rang the accountant for the second respondent (who had also been the accountant for the first respondent) and enquired about her return to work on 16 December 2012. The accountant informed the claimant that her position was no longer available. The claimant queried her position through her representative and on 24 January 2013 Alan Connolly in his reply to the claimant’s solicitor on behalf of the third respondent stated that he believed that the claimant’s grievance is with the first respondent as there had been no transfer of the business as no tangible assets had been transferred.
Determination
The Tribunal is concerned that the same two individuals may be the directors and/or owners of the three identities named herein as the respondents.
Based on the uncontroverted evidence of the claimant the Tribunal finds that the claimant was dismissed. Under the provisions of the Maternity Protection Act, 1994 the purported dismissal while on maternity leave was void and the dismissal is deemed to take place on the date of her expected to work, which was 16 December 2012. As the respondents and each of them failed to appear and discharge the onus of proof that rests on the employer under s.6 (6) of the Unfair Dismissal Acts the Tribunal, in applying s.6 (1) of the Acts, deems the dismissal to be unfair. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds. The Tribunal determined that compensation is the appropriate remedy. Having heard evidence of loss the Tribunal awards the claimant compensation in the sum of €29,000.00. The Tribunal awards the claimant €318.63 being the equivalent to one week’s pay under the Minimum Notice and Terms of Employment Acts, 1973 to 2005. The claimant is awarded €1,274.52, being 4 weeks’ compensation, in respect of annual leave under the Organisation of Working Time Act, 1997.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)