EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Margaret Brewster (appellant) UD247/2015
against the recommendation of the Rights Commissioner in the case of:
St Lawrence O'Toole Social Services Ltd
(respondent)
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey B.L.
Members: Mr. L. Tobin
Mr S. Mackell
heard this appeal at Dublin on 3rd March 2016
Representation:
_______________
Appellant(s) : Ms. Mary Duffy King, Siptu, Liberty Hall, Dublin 1
Respondent(s) : Mr. Paul Cahill, Ask Hr Solutions, 1 Melco House, Goatstown
Cross,, Dublin 14
The determination of the Tribunal was as follows:
This case came before the Tribunal by way of an employee appeal of a Rights Commissioner recommendation under the Unfair Dismissals Acts, 1977 to 2007, reference r-146571-ud-14/JT.
Summary of respondent’s case
The appellant was employed by the respondent as a Supervisor on 25th March 2013. The role involved office administration, monitoring of home care workers and acting as a substitute for home care workers as required. Three to four weeks after the appellant commenced her employment she had a fall on her way to work which resulted in a serious injury to her shoulder.
Although the appellant was not absent from work, she informed the respondent that she could not continue in her current positon as there may often be heavy lifting with clients required. The Manager told the Tribunal that as it transpired the respondent needed someone to help in the office with a new clocking system which would record care workers clocking in and out from various locations. This position was on a temporary basis with 20 hours per week which subsequently increased to 30 hours per week. The appellant took this role and continued to carry out some home care work if the visit merely involved tea and a chat with the client with no heavy duties required.
At the time, the Manager and the appellant were the only two office employees. As it transpired, in March 2014 a full time role became available regarding the clock-in system. At this time the appellant was on sick leave from 18th March 2014. The respondent wrote to the appellant on 28th March 2014 giving her notice that the temporary contract had expired and that her sick cert was due to expire on 5th May. The letter informed her that if she wished to apply for the full time positon now available, further details could be given to her.
The Manager stated that as well as writing to the appellant, she also rang her but there was no contact from the appellant regarding the new position available.
On 11th April 2014 a letter was issued from the appellant’s union to the respondent highlighting their concerns regarding the appellant’s employment. The respondent wrote to the appellant on 16th April 2014 informing her that her employment would cease on 2nd May 2014 and she was invited to contact the Manager if she wished.
Under cross-examination, the Manager stated that she understood the appellant’s injury to be a shoulder injury. She said it was the appellant herself who stated she was ‘unfit’. The Manager denied that the appellant attended clients who required care beyond that of tea and a chat.
There was no contract issued to the appellant regarding her office role. The Manager denied that she was aware of the 20th March 2014 as being the appellants date for surgery. She said the appellant would have got the new full time job had she expressed an interest. When questioned in relation to five clients, the Manager stated that the appellant had requested overtime at the weekends and evenings and was not required to do ironing, wash, dress or put skin cream on any clients.
Summary of appellant’s case
Giving evidence, the appellant told the Tribunal that at her first interview with the respondent she was told the job was for the position of Home Care Supervisor/Locum Care Worker. She was told at the interview that there would be a three month probation period with the position then becoming permanent based on 20 hours per week which subsequently increased to 30 hours per week. At the second interview the appellant indicated that the Manager offered her the post of Administrative Assistant instead and the appellant was happy to accept this offer and started on 25th March 2013. The appellant assumed this was a permanent post as was offered with the Supervisor role. After a three month period, the appellant asked for a contract and the Manager informed her that she was pursuing it with a member of the committee.
On 30th April 2013 the appellant had an accident on the way to work and injured her elbow. The appellant continued in her work following her fall. Aside from her work in the office, the appellant provided cover as a carer and carried out duties such as washing a client, ironing, creaming and emptying toilet containers. The appellant was informed in March 2014 that she needed surgery and this was carried out on 20th March 2014. The appellant sent in sick certs and on the morning of 2nd May 2014 her husband dropped off her return to work cert with a return date of 5th May 2014 but that evening she received her dismissal letter from the respondent.
Under cross-examination, the appellant stated that she did not reply to the letter dated 16th April as the letter stated her employment was ‘finished’. She was too sick after her surgery in March to pick up calls while on sick leave.
The appellant wrote to the board on 23rd April 2014 and received a reply dated 25th April 2014 telling her to deal with matters through the Manager.
The appellant believed she was going back to what she had considered her job on 5th May 2014. The appellant did not take up an invitation to meet the respondent on 22nd May 2014 as she had already been dismissed.
On re-examination, the Manager stated that during the second interview the appellant was not offered the office job instead of the Supervisor role.
Determination
Having considered the evidence adduced by both parties, the Tribunal is satisfied that the appellant was unfairly dismissed and accordingly the claim under the Unfair Dismissals Acts succeeds. Therefore the Rights Commissioner’s recommendation is overturned.
However, given that the appellant is on illness benefit since April 2013, the Tribunal is not in a position to award compensation in this instance.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)