UD127/2015

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                     CASE NO.

Margaret Doherty                                                                                           UD127/2015

against

Higgins & Keegan Retail Limited T/A Centra Enniscrone

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms C. Egan B.L.

Members:     Mr. D. Morrison

                  Mr T. Gill

heard this claim at Sligo on 27th June 2016

Representation:

_______________

Claimant:             Denis M Molloy, Solicitors, Bridge St, Ballina, Co Mayo

Respondent:       Galvan Smyth McEnroe, Solicitors, 11/12 John St., Sligo

Background:

Dismissal was in dispute. The claimant was employed in the deli/shop of the respondent’s supermarket. She was employed from August 2008 until September 2014. The respondent contended that she requested her P45 and left of her own accord.

Claimant’s case:

MD told the Tribunal that she had her third child in February 2014 and was due to return to work in 19^th August 2014. She sent a text to D the store manager on 14^th July to remind him of her return date. She did not receive a reply so she sent another message on 4^th August.

On 8^th August she received a message asking her to ring the owner PK. She rang but got no reply so proceeded to text him. He replied to her (via text) to say he had “too many staff at the moment” but would “try to fit her in for a shift or two”.

The claimant called to the store on three occasions over the next few weeks but was never put on the roster. Under cross examination she stated that 19hours would have been sufficient for her and she would gladly have accepted that. She acted reasonably at all times. She stated that somebody else was doing her job and she shouldn’t have to fight to get her hours back.  

Respondent’s case:

PK gave evidence of receiving a text from the claimant and replying saying that he would try to fit her in for a shift or two but could not guarantee her five days. He said that September was the start of the quiet time of year in the supermarket and it is when hours begin to be cut back to try and retain staff. He told the Tribunal that a new shop had opened in the town that year, so trading had become difficult and it was a tough time financially. The claimant was a part time flexible employee as per her contract. He worked well with her but said she chose not to return to work. He did not dismiss her.    

Under cross examination he said that a letter had been drafted for Social Welfare citing that no hours were available but that was done because the claimant had made her decision not to return. He was unaware of the P45 issuing but assumed that the claimant had requested it from the respondent’s bookkeeper.

Determination:

The Tribunal carefully considered all the evidence and submissions in this case. The claimant was due to return to work on the 19^th August, 2014 having been on maternity leave. Despite numerous messages by text and by phone, commencing on the 14^th July, notifying the respondent of the return to work date, the respondent failed to properly engage with the claimant. The claimant was eventually informed by text message that that the respondent “had too many staff at the moment but would try to fit her in for a shift of two”. Subsequently the claimant called in person to the respondents supermarket on three occasions over the following weeks, but was never placed on a roster.

As per the Maternity Protection Act, 1994

Section 26 – (1)

Subject to this part, on the expiry of the period during which an employee was absent from work while on protective leave, the employee shall be entitled to return to work-

1. With the employer with whom she was working immediately before the start of that period or,

2. In the job which the employee held immediately before the start of that period, and

3. Under the contract of employment under which the employee was employed immediately before the start of that period  

    

   The Tribunal finds that the claimant was unfairly dismissed and determines that the most appropriate remedy is compensation.

    

   The Tribunal awards the claimant €20,000 under the Unfair Dismissal Acts 1977 to 2007.  

    

   Sealed with the Seal of the

    

   Employment Appeals Tribunal

    

    

   This   ________________________

    

   (Sgd.) ________________________

        (CHAIRMAN)