EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Isabella Skolpa UD786/2013
- Claimant MN400/2013
Against
Shawcove Limited
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K. T. O'Mahony B.L.
Members: Ms M. Sweeney
Mr D. McEvoy
heard this claim at Killarney on 1st December 2016
Representation:
Claimant: Ms. Aoife Lynch BL instructed by: Ms. Deirdre Quinn
Respondent: Malone Hegarty, Solicitors, Muckross Road, Killarney, Co. Kerry
The determination of the Tribunal was as follows:-
Preliminary Issue:
The representative for the respondent contended that even if claimant succeeded in her unfair dismissal claim, the Tribunal could not award compensation in respect of loss as the claimant had accepted an undifferentiated tender in respect of a personal injuries claim which had included a claim for loss of earnings in March 2016.
Lengthy submissions were adduced by both representatives in this matter.
Background:
The claimant commenced employment as an accommodation assistant with the respondent in September 2010. Although the three contracts between the parties were variously stated to be either seasonal or fixed term there was a dispute between the parties on the issue.
The claimant sustained an injury on 13 April 2012 in the course of her employment with the respondent. She returned to work on one occasion but was clearly unfit for work and thereafter she never returned to work and continued to submit sick certificates until February 2013.
The respondent’s position was that by letter dated 26 November 2012 it notified the claimant that her seasonal contract had ended. The claimant denied receiving the letter. On 9 December 2012 the respondent filed the claimant’s P45 with Revenue. The claimant received her P45 in February 2013.
In April 2013 the claimant was notified by the relevant authority that she was eligible to receive full-time carer’s allowance in respect of her child and this payment was backdated to 31 January 2013. As far as the claimant could recall, she had applied for the carer’s allowance in December 2012 or January 2013. She remains in receipt of this allowance.
The claimant initiated a personal injury claim against the respondent in May 2014. The claim included a claim in respect of loss of earnings.
In May 2015 the claimant told her doctor that she could not work as an accommodation assistant again.
On 14 March 2016 the claimant accepted a tender in the sum of €35,500 in respect of her personal injury action. The tender was undifferentiated as to the amount in respect of the loss of earnings and the amount in respect of damages.
Preliminary Determination:
Under section 7 of the Unfair Dismissals Acts 1977 to 2007 the Tribunal, in the event of a successful claim by an employee, may make an award of re-instatement, re-engagement or compensation.
Given the nature of the claimant’s injuries and the uncontested evidence that she had informed her doctor that she could not work as an accommodation assistant again compensation would be the only appropriated remedy the Tribunal could award.
Under section 7 (1) of the Acts compensation may be awarded in respect of “any financial loss incurred … and attributable to the dismissal as is just and equitable having regard to all the circumstances ”. As the claimant was unfit for work up to the time she became a full-time carer for her child, she suffered no financial loss. Thus, apart altogether from the issues raised by her acceptance of the tender, the Tribunal would not have the jurisdiction to award damages in the event of a successful unfair dismissal claim.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)