UD1655/2012, RP421/2012, MN436/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                 CASE NO.

Viktorija Vasilveca    -appellant                                                       UD1655/2012

                                                                                                        RP421/2012                

                                                                                                         MN436/2012

against

Maybin Support Services (Ireland) Limited T/A Momentum Support -respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr D. Hayes B.L.

Members:     Mr. A. O'Mara

                    Mr F. Keoghan

heard this appeal at Dublin on 29th January 2014

Representation:

Appellant:       Mr. J. Jeffers B.L. instructed by DFMG, Solicitors, Embassy House, Ballsbridge, Dublin 4

Respondent:    Ms. Mairead Crosby, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2

Background:

The appeal under the Unfair Dismissals Acts, 1977 to 2007, came before the Tribunal by way of an employee (the appellant) appealing against the Recommendation of a Rights Commissioner (reference: r-121215-ud-12/DI).

The claims under the Redundancy Payments Acts, 1967 to 2007 and the Minimum Notice and Terms of Employment Acts, 1973 to 2005 were lodged directly to the Tribunal.

Determination on preliminary issue:

The respondent is a contract cleaning company. It had employed the appellant as a cleaner in 2001. It was common case that the appellant’s employment with the respondent had ended. The date of the termination of the employment is in dispute. It is the respondent’s case that the employment ended in 2009. It is the appellant’s case that it ended in 2012. The Tribunal was asked to deal with this dispute as a preliminary issue.

The appellant worked in a number of different offices in the Donnybrook and Ballsbridge areas of Dublin. Up to 2008 she worked up to thirty hours per week for clients of the respondent. Thereafter her hours began to reduce. One client, D Co., who was ending its contract with the respondent directly, engaged the appellant as its cleaner in about May 2009. The respondent does not appear to have had any issue with this. As the work available in Dublin 4 was reducing, the appellant was offered alternative work in the Dublin 8 area. All such offers were not acceptable to the appellant and were refused. The Tribunal does not require to comment either on the reasonableness of the offers or their refusal for the purposes of this application.

The Tribunal heard evidence from the appellant and from RL, who was the appellant’s manager when employed by the respondent. RL told the Tribunal that she continued to look after other clients based in the same building as D Co. She occasionally met the appellant in that building between July 2009 and October 2011. She told the Tribunal that on the occasions that they met she offered work to the appellant, which offers were always refused. RL also told the Tribunal that she had not been aware that the appellant’s employment had been terminated in 2009.

It is the respondent’s case that a P45 together with a payslip in respect of outstanding holiday pay were sent to the appellant in November 2009. The P45 expressed the date of cessation of employment as 24^th July 2009. The appellant accepts that she received the payslip but insisted that she never received a P45. Her manager was not aware that it had purportedly been sent to her. The appellant told the Tribunal that she first received the P45 when a copy of it was sent to her in January 2012. No evidence was adduced by the respondent in relation to when the P45 was initially issued or sent to the appellant.

In October 2010 the appellant sent an email to the respondent’s payroll section to notify them of a change of address. No reply was received in response to this email.

In October 2011 the appellant again met RL in Ballsbridge and, when she inquired about work, was told on this occasion that she no longer worked for the respondent. Subsequent to this conversation the appellant wrote to the respondent seeking clarification. It was in response to this query that she was sent a copy of her P45.

It is clear that the appellant did not do any work on the respondent’s behalf after July 2009. On the respondent’s own case, no step was taken to terminate the appellant’s employment other than to issue a P45. As noted above, no evidence was adduced by the respondent that a P45 was, in fact, sent to the appellant in 2009. The appellant told the Tribunal that she did not, at that time, receive one. In the absence of evidence to the contrary, the Tribunal must accept that a P45 was not sent in 2009. The Tribunal further notes that the appellant advised the respondent in 2010 of a change in address. Such an act is consistent with a belief that she remained in employment. The Tribunal also notes that no step was taken by the respondent at that time to explain to the appellant that, as she was no longer an employee, it was no longer necessary to keep them informed of changes of address.

Whatever the intention of the respondent, the Tribunal is satisfied that the appellant was not notified of any dismissal in 2009. Even though the appellant did not work for the respondent after July 2009, the Tribunal is satisfied that she remained in employment. On the occasions that she met her manager, up to October 2011, she continued to be offered work. In order to be dismissed an employee must, in general, be told in clear and unequivocal terms that the employment has come to an end. What these terms might be will depend on the facts of any given case. It was submitted to the Tribunal that the giving of a P45 does not constitute such a term. The Tribunal in this case does not require to make a finding in respect of whether the giving of a P45 constituted a clear and unequivocal ending of the employment. The Tribunal does observe, however, that it could envisage circumstances in which the giving of a P45 would constitute sufficient communication.

The Tribunal is satisfied that clear and unequivocal communication of the termination of her employment took place in January 2012 when what she had been told by RL the previous October was confirmed to her. For the purpose of determining whether her claims have been brought within statutory time limits, it is not necessary to be certain of the exact day in January 2012 as the entire of the month was within time.

Accordingly, as regards the preliminary issue, the Tribunal is satisfied that the claim made under the Unfair Dismissals Acts, 1977 to 2007, having initially been lodged with the Rights Commissioner Service on 22^nd March 2012, has been made within time and the recommendation of the Rights Commissioner is upset accordingly. Her claims pursuant to the Redundancy Payments Acts, 1967 to 2007 and the Minimum Notice and Terms of Employment Act, 1973 were lodged with the Tribunal on 22^nd March 2012 and were therefore made within time.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                  CASE NO.

Viktorija Vasilveca    -appellant                                                       UD1655/2012

                                                                                                         RP421/2012                

                                                                                                          MN436/2012

against

Maybin Support Services (Ireland) Limited T/A Momentum Support -respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr D. Hayes B.L.

Members:     Mr. A. O'Mara

                     Mr F. Keoghan

heard the substantive matter in this appeal at Dublin on 26^th March 2015

Representation:

Appellant:       Mr. J. Jeffers B.L. instructed by DFMG, Solicitors, Embassy House, Ballsbridge, Dublin 4

Respondent:    Mr. B. Austin, IBEC, Confederation House, 84/86 Lower Baggot St., Dublin 2

Background:

The appeal under the Unfair Dismissals Acts, 1977 to 2007, came before the Tribunal by way of an employee (the appellant) appealing against the Recommendation of a Rights Commissioner (reference: r-121215-ud-12/DI).

The Tribunal issued a determination dated 5 March 2014 in relation to a preliminary issue in this case. In that determination the Tribunal had found that, although the appellant had not worked for the respondent since 2009, she had remained an employee until she was dismissed in January 2012.

In 2009 the respondent had a reducing need for employees in the Dublin 4 area, where the appellant’s work was based. Of the respondent’s three clients for whom the appellant worked in Dublin 4 one was no longer retaining the respondent’s services, a second was moving to Dublin 6 and a third to Dublin 8. The appellant was offered work in both Dublin 6 and Dublin 8. The appellant did not want to work outside Dublin 4. She told that the Tribunal that she does not remember the offer of work in Dublin 6, although the Tribunal is satisfied that it was made. She did not want to work in Dublin 8 because of the difficulty that she said she would face in getting there by public transport in sufficient time to start her early shift. From time to time the appellant met her manager, RL, in Dublin 4 who continued to periodically offer her work, although not in Dublin 4. These offers were all refused. The appellant was waiting for further work to become available in Dublin 4, which further work never materialised.

The appellant told the Tribunal that she would have taken work outside Dublin 4 had she thought that her employment would otherwise be terminated. It is clear that she was never given any warning that dismissal was a possibility. Rather she continued doing her own work in Dublin 4 while waiting for other work to come available and while, at the same time, being periodically offered work elsewhere by the respondent. It came as somewhat of a surprise in October 2011 for the appellant to be told that she no longer worked for the respondent. When she sought clarification of this it was confirmed to her by the sending of a P45 in January 2012.

Clearly the appellant had not performed any duties since 2009. However at no time was it even intimated to her, let alone actually said, that this was a difficulty. Quite the opposite in fact occurred by the periodic offers of further work. It was open to the respondent to require the appellant to work in such locations as allowed by her contract of employment and it was open to them to discipline her should she have refused. While she did decline to work in the alternative locations, the Tribunal accepts that her stance would likely have changed had she been warned that her job was on the line. She was not so warned. It is clear that no disciplinary procedure, fair or otherwise, was used in the termination of the appellant’s employment. Nor was she given the notice to which she was statutorily entitled that her employment was to end.

The Tribunal is satisfied that the appellant was unfairly dismissed. It is further satisfied that compensation is the appropriate remedy in circumstances where the appellant is now in other better-paid employment. In assessing the amount of compensation to be paid the Tribunal must take account of the behaviour of the appellant and its contribution to her dismissal. The Tribunal is not satisfied that the appellant acted entirely reasonably and the award must reflect that. However the Tribunal is satisfied that the substantial contribution was the approach adopted without procedure by the respondent. The Tribunal, in assessing compensation must also take account that the appellant had no loss arising from her dismissal. The Tribunal must, therefore, assess the amount of compensation in accordance with the provisions of s.7(1)(c)(ii) of the Principal Act.

In relation to her claim under the Unfair Dismissals Acts, 1977 to 2007, the Tribunal is satisfied that compensation in the amount of €750 is just and equitable having regard to all the circumstances. Thus the Recommendation of the Rights Commissioner (reference: r-121215-ud-12/DI) is upset.

In relation to her claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 the Tribunal is satisfied that the appellant was entitled to six weeks notice which she did not receive. In this regard she is awarded compensation in the amount of €1320.

The appellant had also brought a claim under the provisions of the Redundancy Payments Acts, 1967 to 2007. No claim was in fact advanced under these Acts in the course of the hearings before the Tribunal and is therefore dismissed.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)