UD73/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                       CASE NO.

Karen Cullen                                                                                                     UD73/2014

against

Thunder Road Café Ltd

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Mr. D.  Mac Carthy S C

Members:     Mr W.  Power

                     Ms. N.  Greene

heard this claim at Dublin on 20th February 2015

Representation:

_______________

Claimant:        Mr Danny Nolan, John P. O'Donohue, Solicitors, Suite 2,

                       Waterside Chambers, Waterside, Waterford

Respondent:    Mr Shea Cullen, Shea Cullen Solicitors, 23 Fitzwilliam Place, Dublin 2

Summary of Evidence:

The claimant’s case is that she was suspended without pay in May 2013 and that this was a disciplinary sanction applied without due process. By letter of 31^st May 2013 her solicitor set out her complaints and called for a de novo hearing. The claimant returned to work and there was a further incident on 16^th June 2013 after which she was suspended with pay pending an investigation. The claimant left work that day and attended her doctor who certified her unfit for work due to stress. She continued to supply regular medical certificates. 

After two weeks her employer ceased to pay her wages as there was no sick pay scheme in operation within the respondents business. The suspension was extended several times until the investigation could proceed. The respondent sent letters at weekly intervals repeating this extension but received no reply until the claimants solicitor wrote on 20^th August 2013 insisting on a reply within three days.

By letter of 28^th August 2013 solicitors for the respondent wrote offering a full de novo investigation and providing 6 witness statements. The claimant or her representative did not reply until 30^th September 2013 when they sought her P45.

Counsel for the claimant argued that their case was based on the original suspension in May in which due process was adhered to. Counsel for the respondent conceded that there were procedural defects, but argued that a suspension in May could not ground a constructive dismissal in August/September, given the correspondence between the parties in the meantime.    

Determination:

Constructive Dismissal as defined in Section 1 of the Act reads:

“the termination by the employee of his/her contract of employment with his/her employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was reasonable for the employee, to terminate the contract of employment without giving prior notice to the termination to the employer,”  

The question for the Tribunal is whether the conduct of employer was such that it was reasonable for the claimant to resign. The Tribunal regards the lapse of the time between the suspension and the termination as too long for that suspension to ground a constructive dismissal. The Tribunal is also of the view that following several months of one way correspondence, the claimants solicitors insistence on the 20^th August 2013, for  a reply within 3 days was also unreasonable and therefore is was not “reasonable” for the employee to resign in that manner.

The claimant has failed to prove that she was constructively dismissed. The claim under the Unfair Dismissals Acts, 1977 to 2007, therefore fails.  

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)