EMPLOYMENT APPEALS TRIBUNAL
Direct claims of:
Barbara Tabaczek -employee UD700/2014
RP339/2014
WT101/2014
against
DCB Bistro Limited -employer PW22/2015
TE25/2015
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
ORGANISATION OF WORKING TIME ACT 1997
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
And appeals by the employer under:
PAYMENT OF WAGES ACT 1991
TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 TO 2012
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey B.L.
Members: Mr. T. O'Grady
Mr. M. O'Reilly
heard this claim at Dublin on 30th June 2015
Representation:
Employee: Mr. Diarmuid Murphy B.L. instructed by Mr. Donal Holohan,
Maguire McClafferty Solicitors, 8 Ontario Terrace, Dublin 6
Respondent: Mr. M (a director of the company)
Background:
The employee lodged direct claims to the Tribunal under the Unfair Dismissals Acts, the Redundancy Payments Acts and the Organisation of Working Time Act.
The employer lodged an appeal to a Rights Commissioner Decision & Recommendation under the Payment of Wages Act and the Terms of Employment (Information) Acts, references: r-144186-pw-14 & r-144186-pw-14.
The Tribunal was informed that the company name had changed and the proceedings were amended accordingly.
A Polish translator was provided by the Tribunal for the hearing. The fact of dismissal was not in dispute. The employee was dismissed on 2 November 2013. The dismissal became evident to her when she received a P45 by post while on maternity leave.
It was the employee’s case that she was absent from work due to a pregnancy related illness from 08 April 2013 to 29 June 2013. She subsequently commenced a period of maternity leave on 1July 2013 and her child was born on 28 July 2013. The company completed the maternity benefit form for her when she provided it to the company with letter dated 30 April 2013. In that letter she outlined that the period of maternity leave would commence on 1st July 2013 and continue to January 2014. In addition to this she had submitted medical certificates to the Department of Social Protection. The employee gave evidence of financial loss since the dismissal and the efforts she has made to mitigate it which have been hampered by a continuing health issue.
It was the company’s case that letter dated 30 April 2013 was not received by the company and that the only knowledge the company had was that the employee was commencing maternity leave in March 2013 due to pregnancy-related health issues. Mr. M for the company also stated that the medical certificates had not been seen by him prior to the hearing. A P45 was issued to the employee as she did not return to the employment nor make contact with the company following her maternity leave which Mr. M believed had ended in September 2013. This was not considered unusual as the restaurant industry has a high turnover of staff.
Representation for the employee submitted that notice of the appeal as specified under S.7(2)(b) of the Payment of Wages Act was not served on the employee by the company. This fact was not disproven by Mr. M of the company.
It was common case between the parties that Mr. M may not have had full knowledge of what transpired during the employee’s tenure as she mainly reported to Mr. O. Mr. M became involved in the business on a later date. Mr. M accepted that the employee may not have received a written contract of employment.
Determination:
It is clear to the Tribunal that the dismissal of the employee arose as a result of careless administration rather than any mala fides on the part of the employer. Notwithstanding that, the termination of the employee’s employment in the circumstances outlined is an unfair dismissal. However, there is no evidence that the employee sought work since the dismissal and indeed her efforts appear to have been hampered by the medical condition of which she gave evidence. For all these reasons the Tribunal finds that the appropriate sum of compensation to be €10,000 under the Unfair Dismissals Acts, 1977 to 2007. The claim under the Redundancy Payments Acts, 1967 to 2007, is dismissed as this claim does not arise in the circumstances.
The employee stated in evidence that she did not receive her outstanding holiday entitlements when her employment was terminated but this was disputed by Mr M. The Tribunal’s jurisdiction under the Organisation of Working Time Act, 1997 is confined to holiday pay. The Rights Commissioner Decision under the Payment of Wages Act, 1991 awarded the employee the sum of €553.60 for holiday pay and €86.20 for public holiday pay outstanding. The claim under the Organisation of Working Time Act, 1997 is therefore dismissed.
Section 7(2)(b) of the Payment of Wages Act, 1991 states:
(2) An appeal under this section shall be initiated by a party by his giving, within 6 weeks of the date on which the decision to which it relates was communicated to him—
(a) a notice in writing to the Tribunal containing such particulars (if any) as may be specified in regulations under subsection (3) and stating the intention of the party concerned to appeal against the decision, and
(b) a copy of the notice to the other party concerned.
The employer did not comply with this Section 7(2)(B) and therefore the Tribunal does not have jurisdiction and must dismiss the appeal. Accordingly the Rights Commissioner Decision under the Payment of Wages Act, 1991 stands.
It was acknowledged by Mr. M that the employee more than likely did not receive a contract of employment. The Tribunal upholds the Rights Commissioner Recommendation to award the employee the sum of €750 under the Terms of Employment (Information) Acts, 1994 to 2012.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)