UD442/2015, PW183/2015

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                         CASE NO.

Diana Jegorova

                                                                                                                  UD442/2015

                                                                                                                  PW183/2015

against the recommendation of the Rights Commissioner in the case of:

Andrew Brooks Accountant

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

PAYMENT OF WAGES ACT 1991

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms P. McGrath B.L.

Members:     Mr. L. Tobin

                    Mr N. Dowling

heard this appeal at Dublin on 2nd November 2015

Representation:

_______________

Appellant:         Mr. Richard Grogan, Richard Grogan & Associates,

                         Solicitors, 16 & 17 College Green, Dublin 2

Respondent:     Mr. Anthony Murphy, Regan McEntee & Co., Solicitors,

                         High Street, Trim, Co. Meath

This appeal came before the Tribunal by way of an employee appealing the recommendation of a Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007, ref: r-148205-ud-14/JT and r-147312,147313-pw-14JT

The determination of the Tribunal was as follows:-

The Tribunal has carefully considered the evidence adduced. The claimant was engaged as an accounts clerk on a temporary basis in and around the 10^th July 2013. It was common case that the respondent accountant needed a temporary clerk to cover maternity leave being taken by his then employee who was expected back at the end of October 2013.

As it happened the employee due to return did not in fact return and the claimant continued in her employment on a 5 day weekly basis up to March of 2014. In March, the employer told the claimant that he was letting her go as he did not have the work to keep her going. The respondent told the Tribunal that the nature of accounts work is very seasonal and there simply wasn’t enough work to justify the claimant being there five days a week.

The claimant was pregnant when she got this news and the Tribunal accepts that whilst the employer knew this fact he had only been made aware of the pregnancy minutes before he intended letting the claimant know he was letting her go. The knowledge of the pregnancy only came to pass in the respondent employer’s conversation with one of his other employees – who confirmed this version of events in evidence.

The claimant agreed with her employer that, rather than be let go, she would be allowed continue on the basis of one days employment each week. Both parties agreed that the purpose of this arrangement was to allow the claimant to qualify for maternity benefit from the following November. She continued in this capacity of working one day a week at the rate of pay of €60.55 per week. This arrangement subsisted up to the very quiet summer months at which time, once again, the employer made a move to terminate the claimant’s employment, again citing the unavailability of a sufficient quantity of work to keep the claimant busy.

The Tribunal notes, with some surprise, the lack of any supporting evidence in this case and in particular no letters, contracts or other documentation to support the nature of the contractual arrangements between the parties. The Tribunal was shown nothing to prove either way on what date the claimant was notified that she was being let go(for the second time). The claimant maintains it was on 7^th July (which date, including notice, would bring the claimant up to the required 52 weeks of service). The respondent says it was the 25^th June which would mean the claimant would not have the required 52 weeks service.       

On balance the Tribunal finds that it prefers the claimant’s evidence and accepts that the claimant was notified that she was being let go on 7^th July 2014 and was not paid her one week’s notice. The claimant was consequently let go in and around the time that the respondent had been advertising the post and in circumstances where they knew that she would be required again in the not to distant future (September/October being their busiest time) and the option of lay off should have been considered.

The Tribunal finds no case had been made under the Payment of Wages Act as the parties had mutually agreed the change in pay structure for their own mutual benefit. This claim therefore fails.

The Tribunal is quite satisfied that the claimant’s employment was unfairly terminated and upsets the Rights Commissioner decision awarding the sum of €1,500 to the claimant under the Unfair Dismissals Acts 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)