UD1269/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                  CASE NO.

Teresa Gilligan           - claimant                                                                   UD1269/2014

Against

Tougher's Oil Distributors Limited

-        Respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. D. Mac Carthy S C

Members:     Mr. J. O'Neill

                    Mr S. Mackell

heard this claim at Dublin on 10th December 2015.

Representation:

Claimant:        Mr. Stephen O’Sullivan BL, instructed by Mr.Jim Woods,

Coughlan White & Partners, Solicitors, Moorefield Road, Newbridge,

Co. Kildare

Respondent:    Ms Nora Cash, Peninsula Business Services (Ireland)

                       Limited, Unit 3, Ground Floor, Block 3, East Point Business

                        Park, Dublin 3

The determination of the Tribunal was as follows:-

Respondent’s Case:

The respondent is an oil distributor and owns several petrol service stations with convenience stores. The claimant worked in Store R. LF is Store Manager and has worked for the respondent for nine years. Her son who worked with the claimant in Supermarket T was approached by the claimant who said she was interested in working in Store R.

The claimant had two years experience in Supermarket T. The claimant was interviewed and offered a Sales Assistant position in Store R. LF is Store Manager and she trained the claimant on the operation of the various tills located in the Store together with other store duties. The claimant’s probationary period was for six months. She had variable hours, 20-25 hrs per week and worked evenings and weekends.

LF became aware of complaints and issues arising during the claimant’s tenure. She addressed these with the claimant informally and did not document them. LF felt the claimant lacked a willingness to learn and to improve her work performance.

On 20th January 2014 LF spoke to the claimant concerning her work performance. The claimant had not been doing her fair share of the workload.   She asked the claimant if she needed training but the claimant responded that she did not.

At the end of February 2014 the claimant informed LF that she was pregnant. The claimant continued to work her variable hours.

On 8^th April 2014 LF again spoke to the claimant about her work performance and addressed certain issues. The claimant had been missing shifts, a customer had lodged a complaint about being overcharged and staff complained about the claimant not pulling her weight. The witness sought advice from Head Office.

By letter dated 19^th April 2014 LF invited the claimant to a Performance Review Meeting. HR Manager, CMcN also attended this meeting. A friend accompanied the claimant to the meeting.

Issues addressed at this meeting included the claimant standing around and not working, customer complaints, short changing customers and staff members’ complaints about the claimant’s poor performance.

By letter dated 22^nd April 2014 the claimant’s employment was terminated. The claimant had not demonstrated her suitability for the role during her probationary period. She was offered a right of appeal but chose not to appeal the decision to dismiss her.

Claimant’s Case:

The claimant had worked in Supermarket T for two years and was enticed to work for Store R. Store R was located closer to the claimant’s home. She commenced employment on 13^th December 2013. She was trained in on the Store’s tills which were not complicated. She worked the 4 pm to 10 pm shift and at week ends.

The last week end in February 2014 she had been ill and became aware that she was pregnant and distraught and was unable to work her week end shift. On her return to work she informed LF of her pregnancy.

She got on well with her work colleagues.

On 19^th April 2014 the claimant was handed a letter to attend a meeting on 22^nd April 2014.

She attended this meeting with a work colleague. She was dismissed at 3.30 that day.

Her baby was born in November 2014 and in the past month she has applied for several positions but has been unable to secure alternative employment.

Determination:

The claimant had less than one year’s service and would normally be excluded from the scope of the Unfair Dismissals Act. An exception to this rule is dismissal by reason of pregnancy, and the onus is on the claimant to make that case. Having heard the evidence we are not satisfied that pregnancy was the reason.

The Tribunal, therefore, has no jurisdiction in this case and the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

                 (CHAIRMAN)