UD224/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                                CASE NO.

Evita Benjava                                                                                                           UD224/2014

against

Alltest Limited T/A The Chicken Hut

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Mr. P.  Wallace

Members:     Mr. W.  O'Carroll

                     Mr J.  Flavin

heard this claim at Limerick on 12th March 2015

Representation:

Claimant:

             Mr Mike McNamara, SIPTU, Liberty Hall, Eden Quay, Dublin 1

Respondent:

             Mr. Joe Murphy,

             Connolly Sellors Geraghty, Solicitors, 6/7 Glentworth Street, Limerick

Claimant’s case:

Dismissal was in dispute and therefore the claimant went into evidence first. The claimant commenced employment with the respondent on 16^th January 2004. In October 2010 the claimant went on maternity leave and when that finished she went straight onto sick leave. In July 2011 the claimant wanted to return to work and got a certificate of fitness to return to work from her GP. However the GP subsequently withdrew this certificate on foot of a phone call from the respondent. The basis of that phone call was that the claimant had been in hospital in her home land with back problems and had not disclosed this to her GP.

The claimant then went back on Illness Benefit and told the Tribunal that she did not send sick notes to the respondent thereafter as the respondent knew that she would be absent for two years. A personal injury claim was brought by the claimant against the respondent in respect of her back injury and this claim was settled before going to court. The claimant continued to claim Illness Benefit until 12^th July 2013.

On 19^th February 2013 the claimant requested a P60 for 2012 and instead received a P45.  However the claimant still regarded herself as an employee of the respondent and the first mention of her no longer being an employee was by way of a letter dated 4^th April 2013 from the respondent in relation to the claimant’s application for Maternity Benefit.

It was the claimant’s position that she never resigned from her position with the respondent and that the assertion by the respondent that she was no longer employed there amounted to an unfair dismissal.

Respondent’s case:

It was the respondent’s position that the claimant had left the employment. The respondent had not received sick notes since July 2011 and when the personal injury claim was settled the respondent thought that this was the end of the working relationship between them. 

The respondent refused to complete a form for Maternity Benefit in April 2013 on the basis that the claimant no longer worked there.

As the respondent did not hear anything from the claimant in almost two years and they had taken on another person to replace her the respondent presumed that the claimant had resigned.

Determination:

The Tribunal carefully considered the evidence adduced at the hearing and is satisfied that there was a frustration of the contract of employment by the claimant due to her lack of communication with the respondent in respect of her long absence from work. In the circumstances it was reasonable of the respondent to conclude that the claimant had left her employment.

Therefore the Tribunal finds that the claimant was not unfairly dismissed by the respondent and her claim under the Unfair Dismissals Acts, 1977 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)