UD476/2015, MN228/2015

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD476/2015

MN228/2015

CLAIM(S) OF:                                                                                              

Xiuying Jiang              -claimant                                                                    

against

St. James's Hospital Board T/A St. James's Hospital

-respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. F. Crawford B.L.

Members:     Mr. M. Carr

                     Mr. J. Maher

heard this claim at Dublin on 18th April 2016

Representation:

Claimant:         Ms. Sarah Lea B.L. instructed by Brophy Solicitors, 38-40 Parliament Street, Dublin 2

Respondent:    Mr. Peter Flood, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2

Background:

It was accepted by the respondent that it was the employer as per S.13 of the Unfair Dismissals Acts.

The claimant lodged claims under the Unfair Dismissals Acts and the Minimum Notice and Terms of Employment Acts. The claimant is an agency worker who receives work as a carer through a nursing agency.

Preliminary Issue:

It was the respondent’s case that when required it contacted the agency who in turn contacted the claimant to make an offer of work. It was the respondent’s case that the claimant worked for the respondent on an irregular basis. For example prior to December 2012, the claimant performed the duties of carer on the respondent’s premises on only one occasion.

It was the respondent’s case that the claimant did not have 52 weeks continuous service as stipulated by the Unfair Dismissals Acts and therefore she was not entitled to bring the claim under the Acts. The respondent highlighted a 15 month gap in the claimant’s employment from the 4^th May 2013 to the 15^th September 2014 in relation to this issue.

It was the claimant’s case that she worked on an on/off basis with the respondent for some 22 months and that during that time she only worked for the respondent, albeit not on a daily basis.

A statement of maternity benefit was submitted to the Tribunal and covered the period from the 27^th June 2013 to the 25^th December 2013. Following the period of maternity leave the claimant decided to taken some further time away from work to care for her child. This period was from December 2013 through to September 2014 at which time she began to work once again. During the period from December 2013 to September 2014 the claimant did not put herself forward for work. It was the respondent’s case that the claimant had broken her continuity of service during that period. The last date she worked for the respondent was in October 2014.

Determination on Preliminary Issue:

Having considered the oral and documentary evidence adduced the Tribunal finds that the claimant’s continuity of service was broken during the period of December 2013 to September 2014 when she chose not to make herself available for work. The claimant therefore does not have the requisite service to bring a claim under the Unfair Dismissals Acts, 1977 to 2007. Accordingly, the Tribunal does not have jurisdiction to make a determination on the substantive matter and must dismiss the claim.

Similarly, the Tribunal finds that the claimant did not have 13 weeks continuous service to entitle her to bring a claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, and accordingly dismisses this claim also.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)