UD1377/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                     CASE NO.

Malgorzata Matuszewska      -claimant

                                                                                                                          UD1377/2013

against

B & P Supermarket Limited  -respondent    

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. K.T. O'Mahony B.L.

Members:     Mr J. Hennessy

                    Mr F. Dorgan

heard this claim at Thurles on 18th November 2014

Representation:

Claimant:        In person

Respondent:    Patrick J O'Meara & Co., Solicitors,

                        Liberty Square, Thurles, Co Tipperary

Dismissal was in dispute in this case.

Summary of Evidence

The claimant was employed as a shop assistant with the respondent company from October 2007. The respondent employed around 15 part-time workers. Initially the claimant worked 30 hours per week but when business levels reduced her hours were cut to 25 per week.

It was the claimant’s evidence that when she returned from a period of maternity leave in 2011 her hours were reduced further by PE (a co-director of the company) to 15 hours per week. However, the employee who had replaced the claimant while she was on maternity leave continued to enjoy the same number of hours without any reduction andthe claimant was told that it would be unfair to cut that employee’s hours.

In any event the claimant worked the reduced hours, approximately 15 hours per weekon Fridays and Saturdays and covered any absences during the week throughout 2012 and into early 2013. In or around this time the claimant became pregnant with her second child. It was the claimant’s case that from the time she informed PE that she was pregnant; her hours were reduced further to one day per week and later to zero hours per week. Over a four month periodshe went to the respondent’s premises on a weekly basis to check the roster and to enquire about work but her name was not on the roster and each time she was informed that the roster was completed for that week and to check in again the following week.

The claimant’s evidence was disputed by witnesses for the respondent company. In early 2013, JE, the daughter of the directors of the respondent company, became responsible for rostering. Her evidencewas that the claimant’s other work interfered with her getting work from the respondent. The store manager’s evidence was that the claimant was offered numerous additional hours up to 7 March 2013 but as the claimant always refused these the respondent decided to stop offering her work and to wait for her to seek hours.

The claimant refuted the respondent’s assertion that other work commitments had prevented her from accepting hours offered by management.Her other work included working as an interpreter in garda stations, for Social Welfare and hospitals. The claimant admitted to turning down a few last-minute offers of work, made by the respondent with only one or two hours prior notice because she could not arrange childcare at such short notice. It was common case that the claimant was offered Dominique’s job when she left in early 2013 but the claimant’s evidence was that having accepted that offer she heard nothing further about it and another girl got that job. The claimant’s position is that she was also offered the hours of two other employees but these hours were never allocated to her. Having regularly and unsuccessfully sought hours from the respondent over a four-month period the claimant understood that she was dismissed. In May 2013 she discovered that she was one month short to qualify for maternity benefitit.

The respondent’s position was that the claimant’s job was still available to her. The claimant’s position was that she was no longer interested in her old position as she had by this time found a job that suits her perfectly.  

Determination:

The Tribunal notes that on the expiry of the claimant’s maternity leave in 2011 she was entitled to return to 25 hours work with the respondent but she took no action about the respondent’s failure to allocate her these hours at that time and she worked the reduced hours allocated to her.

From around the beginning of 2012 to sometime early in 2013 the claimant had been working at least15 hours at weekends regardless of any other work commitments she may have had. While the fact was disputed between the parties the Tribunal accepts the claimant’s evidence that the offer of Dominique’s position was not followed through by the respondent and that the claimant was not offered any other position or rostered for work at weekends subsequent to this. The Tribunal finds that the failure to roster the claimant over a substantial period amounted to a dismissal. As there were no grounds to justify the dismissal it was unfair. Accordingly, the claim under the Unfair Dismissals Acts 1977 to 2007 succeeds. The Tribunal, finding compensation to be the appropriate form of redress, awards the claimant compensation in the sum of €4,500 under the Acts

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)