UD195/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                              CASE NO.

Nicola Gavaghan

- claimant                                                                                                      

                                                                                                                         UD195/2014

against

Bluebells & Buttercups Limited T/A Bluebells &

Buttercups Creche

- respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr J. Fahy B.L.

Members:     Mr T. Gill

                    Ms H. Murphy

heard this claim at Galway on 24th November 2015

Representation:

_______________

Claimant(s) :       Ms Gerardine Costello, Gerardine C Costello & Associates,

                           Solicitors, 4a Oranmore Business Park, Oranmore, Co Galway

Respondent(s) :   Mr Michael Cunningham, Michael Cunningham & Co, Devon

                            House, 2 Devon Place, The Crescent, Galway

Claimant’s Case

The claimant gave evidence that she was employed as a Montessori teacher by the respondent from October 2011. She was contracted to work on a part-time basis working 15 hours per week. She signed a contract of employment on 10 January 2012 but told the Tribunal that she was not provided with a copy of the contract at that time, and ultimately did not receive a copy of the contract until August 2013.

She gave evidence that in March 2012 she accepted an offer to work 40 hours per week, covering hours of an employee who had left the company. She gave evidence that she did so to accommodate the respondent and worked for a number of months doing 40 hours per week. It was her understanding that this was only a temporary measure and her written contract of employment was not altered to reflect any change in her working hours. In the Summer of 2012 she informed the respondent that she was pregnant and went on maternity leave in October 2012. In January/February 2013 she contacted the respondent seeking to return to work on her contracted hours of 15 hours per week. She exchanged a number of e-mails with the respondent but ultimately she was not allowed to return to work on a 15 hour per week basis. She was only offered a position of 40 hours per week. She was not in a position to accept this offer of 40 hours per week and accordingly was left with no option but to resign from her employment. The Tribunal heard further evidence in relation to the claimant’s efforts to mitigate her loss since the termination of her employment with the respondent.

Respondent’s Case

(N), director of the respondent company gave evidence that she hired the claimant in November 2011 as a Montessori teacher. The claimant worked part-time hours doing 15 hours per week. In March 2012 a full time position became available and was offered to the claimant. She told the Tribunal that the claimant accepted this position and was replaced in her part-time position. The witness accepted that the claimant was not given a new contract of employment to reflect her full time status.

In October 2012 the claimant went on maternity leave and sought to return to work circa February 2013 to a part-time position. The witness gave evidence that she told the claimant that she would be returning to the full time position, as she had relinquished her part time position in March 2012 and this part-time position was no longer available. She told her that she would look at the possibility of part time hours. In that regard she issued a letter to the claimant dated 3 May 2013 which stated inter alia:

“As you have requested to return on part time hours due to personal circumstances, your rostered hours will be 20 hours for the first two weeks. After this time, depending on business needs, your normal working hours may be up to 40 hours per week Monday to Friday.”

She gave further evidence that the claimant was given her contract of employment in January 2012 along with the company handbook. Ultimately she never returned to work following her maternity leave and she resigned from her employment by way of letter dated 19 August 2013.

Determination

The Tribunal has carefully considered all the evidence in this case. There is a conflict of evidence between the parties as to whether the claimant was offered a permanent contract for 40 hours per week in March 2012 or whether the 40 hour contract, offered at that time, was for a short term to meet the needs of the employer. Both the claimant and respondent offered cogent evidence of their respective recall of what happened in March 2012, concerning the change to the contract hours, which was not put in writing to the claimant. The Tribunal must consider the letter of 3 May 2013 from the respondent to the claimant as significant. The letter does not confirm that the contract was for 40 hours per week, in fact, it says that “…depending on business needs, your normal working hours may be up to 40 hours per week Monday to Friday”.

The Tribunal is satisfied that the claimant was not employed on a 40 hour week contract with the respondent and is satisfied that she sought to return to work, following maternity leave, on her 15 hour per week contract, which was refused. The Tribunal is satisfied that she was constructively dismissed from her employment and awards compensation in the sum of €3,500.00 under the Unfair Dismissals Acts 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)