EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Aisling Reid UD1706/2014
-Appellant
against
Claire's Hair Salon Limited T/A Ballance House of Hair
& Beauty -Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. T. Ryan
Members: Mr. T. O'Grady
Mr. P. Trehy
heard this claim at Dublin on 29th December 2015
Representation:
Claimant: Mr. Peter Connolly, Peter Connolly, Solicitors, 6 Capel
Street, (Opposite Nealons Pub), Dublin 1
Respondent: Peninsula Business Services, Block W, East Point Business
Park, Dublin 3
Preliminary Determination:
The Tribunal have to determine a preliminary point as to whether the Claimant lodged her appeal before her date of dismissal.
The Tribunal heard evidence from the Claimant who was employed as a junior hair stylist in the Respondent hair and beauty salon. The Claimant sent a letter of her resignation that she penned by her own hand dated 3/11/14 and was opened to the Tribunal:
“I (the Claimant) am confirming in writing that I feel I am unable to work on the 5/12/14 as I am unable to face the bullying and victimisation, I feel I have been put through by yourself and your company so I am confirming I will not be returning to work.”
The Claimant told the Tribunal that she sent this letter by post. She then received a letter dated 24 November 2014, by post from the Respondent’s solicitor. The letter saving that they were surprised to receive her complaints and she had been due to return to work on 01st December 2014, following her maternity leave. The letter also stating that they expected her to return to work on 01st December 2014, assuming that that date was the expiry of her maternity leave entitlement.
Another letter sent by the Respondent’s solicitor to the Claimant dated 08th December 2014 was opened to the Tribunal. The letter stating that the Claimant had not returned to work following the completion of her maternity leave and that the Respondent is proceeding on the basis that the Claimant decided to terminate her employment. That they would send her her form p45 together with all outstanding entitlements notwithstanding that she did not give notice of termination of her employment.
The Claimant told the Tribunal that she was unavailable to return to work because of bullying. It was not because she did not want to return to work it was because of bullying. She did not get her p45 until January.
The Claimant was asked about her maternity leave and she explained that she was due 26 weeks from 04th May 2014.
She had problem in obtaining forms from her employer whilst on maternity leave. She needed forms and information to enable her to obtain payments whilst out on maternity leave.
The Tribunal heard evidence from AH, a witness for the Claimant.
The Tribunal heard evidence from GB, a witness for the Respondent. She told the Tribunal that she did not see the correspondence dated 3/11/14. She told the Tribunal that the Claimant called into the premises with her new born child on or about 01st May 2014. The Claimant had forms with her. Her own accountant had passed away. She did give the Claimant her new accountant’s e-mail address and also tell the Claimant that maybe the Revenue Commissioners could help her.
The witness told the Tribunal that she had the same relationship with the Claimant as she had with her other employees, she never bullied anyone and in her fifteen years as an employer she was never rude to anyone.
A letter dated 24th November 2014 from the Respondent to the Claimant was opened to the Tribunal, the letter mentioning inter alia, that the Respondent expected the Claimant to return to work from her maternity leave on 01st December 2014. The witness explained that there was no reply from the Claimant to the letter.
The Tribunal heard evidence from DW a witness for the Respondent.
Determination:
S28 of the Maternity Protection Acts 1994 and 2004:
| |
“Notification of intention to return to work. |
|
(2) Where, in the opinion of a rights commissioner or the Tribunal, there are reasonable grounds— | |
( a ) for an employee's failure to give notification under subsection (1), or | |
( b ) for an employee giving such notification otherwise than within the specified time limits, | |
the rights commissioner or the Tribunal, as the case may be, shall extend the time for giving the notification. | |
(3) In the absence of reasonable grounds— | |
( a ) failure to give notification under subsection (1), or | |
( b ) the giving of such notification otherwise than within the specified time limits, | |
are matters that may be taken into account by a rights commissioner, the Tribunal or the Circuit Court in determining the employee's rights under the 1977 Act, this Act or any other relevant enactment, so far as the remedies of re-instatement, re-engagement or compensation are concerned.” |
The Claimant’s employment is protected by the Maternity Protection Act 1994 and Maternity Protection (Amendment) Act 2004, (The Acts). The Claimant is obliged to notify her employer of her intention to return to work:
“…not later than four weeks before the date on which she expects to return to work, notified in writing (or caused to be so notified) the employer or, where the employee is aware of a change of ownership of the undertaking concerned, the successor, of her intention to return to work and of the date on which she expects to return to work.”
The only letter as regards the above that the Claimant sent to her employer was dated 03rd November 2014.
Letter dated 3/11/14 by the Claimant to the Respondent was opened to the Tribunal:
“I (the Claimant) am confirming in writing that I feel I am unable to work on the 5/12/14 as I am unable to face the bullying and victimisation, I feel I have been put through by yourself and your company so I am confirming I will not be returning to work.”
This letter (Which the Respondent denied they received) did not notify the employer of the Claimant’s date of to return to work.
Accordingly, the Claimant’s claim fails as she did not comply with S. 28 of the Maternity Protection Act 1994 as amended, notifying her employer of her intention of her returning to work. The claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)