EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
UD1332/2014
Louise Hayes
against
ISS Ireland Limited T/A ISS Facility Services
and
ISS Ireland Limited T/A ISS Facility Services
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. Hurley
Members: Mr T. Gill
Mr J. Flavin
heard this claim at Limerick on 25th November 2015 and 21st March 2017
Representation:
Claimant: Mr. Gerard J. Meehan, Gerard J. Meehan & Co., Solicitors,
49 Catherine Street, Limerick
Respondent: Not present or represented at either date of hearing.
Background:
There was no appearance by or on behalf of the respondent on 25th November 2015. On the morning of the hearing The HR Manager (SD) phoned the Tribunal to say that his young son had broken his arm and that he (SD) would be unable to attend the hearing that afternoon. SD was to be the only witness for the respondent and he would also be presenting the case on behalf of the respondent. As such SD requested a postponement of the hearing.
The claimant’s representative objected to any such postponement on the grounds that the claimant was already in attendance and had incurred expense in getting there. The representative also informed the Tribunal that he had previously arranged meetings with SD on a number of occasions only to have those meetings cancelled by SD at very short notice.
The Tribunal decided to hear from the claimant’s representative in respect of the basis for the claim of unfair dismissal against the respondent. It is the claimant’s case that she had two separate contracts for two separate jobs with the respondent which had transferred to them under a transfer of undertakings. However subsequent to the transfer the respondent did not employ her under the second contract (part-time supervisor) but did retain her as per the first contract (cleaner). The claimant had been fulfilling both these roles simultaneously up to the date of transfer of undertakings. A claim was brought before the Rights Commissioner by the claimant in respect of her rights on transfer of undertakings and that claim was compromised by the parties. The claimant then expected to be returned to her position as supervisor on the same basis as before. However she was then called to a meeting and made redundant from the supervisor position while retaining her job as cleaner with the respondent.
It is the claimant’s contention that she was unfairly selected for redundancy from the position of supervisor for which she held a separate contract from that of cleaner even though she was employed under both contracts simultaneously by the respondent. Furthermore it is also the claimant’s contention that a genuine redundancy did not exist in respect of the role of supervisor.
Having heard the submission of the claimant the Tribunal decided to adjourn the hearing to a later date so as to allow the respondent a further opportunity to attend and present their case. This adjournment was allowed peremptorily against the respondent.
On the second day of hearing there was no appearance by the respondent or a representative.
The Tribunal heard the un-contested evidence of the claimant.
Determination:
The Tribunal is satisfied the claimant was dismissed on 13th March 2014.
As the respondent did not attend the hearing to offer evidence to discharge the onus of proof that rests on the employer under s.6 (6) of the Unfair Dismissal Acts, the Tribunal, applying s.6 (1) of the Acts, deems the dismissal unfair. Accordingly, the claim under the Acts succeeds.
Compensation is the appropriate remedy. The Tribunal awards the claimant €15,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)