UDD1820

The fact of dismissal is in dispute.

Background

The Appellant was employed by the Respondent from 2008 until the termination of her employment on 26^thAugust 2016. The Appellant contends that she was dismissed on that date by the Respondent and the Respondent contends that the Appellant resigned on that date.

The Appellant was absent from her employment by reason of a combination of paid and unpaid leave from 20^thJune 2016. She contacted the Respondent in early August 2016 seeking to return to work.

Summary position of the Appellant.

The Appellant submitted that she returned to China in June 2016 for six weeks. She submitted that this was her regular annual pattern of leave taking and that the Respondent had never raised a difficulty in this regard previously.

She returned to Ireland on 3^rdAugust and contacted Mr J. McG of the Respondent company by phone on 5^thAugust seeking a return to her role as a deli counter worker. Mr McG advised her that the role was not available. She met with Mr McG on an occasion between 5^thAugust 2016 and 26^thAugust 2016 where she sought alternative or part time employment. The Respondent made no such work available to her.

She called to the Respondent premises on 26^thAugust 2016 to seek her return to work. On that date she met with Mr McG who advised her that her employment was terminated. He gave her P45 to her. That P45 specified the date of cessation of her employment as 29^thJuly 2016.

She submitted that the Respondent had at no time following the 5^thAugust 2016 offered her alternative employment to her role on the deli counter. She submitted that she requested the Respondent to provide her with such alternative employment. She submitted that she never asked for her P45 because she was at all times seeking to return to work. She submitted that she did not resign her employment.

Testimony of the Appellant

The Appellant gave evidence in accord with her submission.

Summary position of the Respondent.

The Respondent submitted that the Appellant did not have a pattern of taking six weeks leave every year. The Respondent clarified that the Appellant took three weeks leave every year to return to China and that in addition to that leave she also regularly took further unpaid leave at the same time.

In 2016 the Appellant had indicated on the leave roster in March 2016 that she would take three weeks leave commencing on 20^thJune 2016. A few days later the Deli manager advised the Respondent that the Appellant intended to take six weeks leave to return to China. Mr McG met with the Appellant and advised her that he would not sanction such a six week leave arrangement and advised her that she would be breaking the terms and conditions of her contract. At that meeting also the Mr McG advised the Appellant that he would have to ‘backfill’ for her on the deli counter and that this position would not be guaranteed to her on her return.

The Appellant contacted the Respondent on 3^rdAugust 2016 and met with Mr McG on 5^thAugust. At that meeting the Respondent advised the Appellant that her position on the deli counter was not available but advised her that she could take up a position on the checkout until the deli counter position became available. The terms and conditions of employment of both positions were identical. The Appellant refused to take up the option of working on the checkout.

The Deli manager subsequently contacted the Appellant and spoke to her about taking up the position on the checkout but the Appellant said that she was not interested.

Nothing further was heard from the Appellant until the 25^thAugust when she asked for her P45. On the following day she came to the Respondent’s premises and the P45 was given to her.

Testimony of Mr J McG on behalf of the Respondent

Mr McG stated that he met with the Appellant on the 5^thAugust and that he offered her alternative employment in the store. He stated that she refused this offer and he asked her to think about it.

He stated that he asked his bookkeeper to procure a P45 for the Appellant on 8^thAugust 2016 and that she supplied that to him some few days later.

He stated that he tried to make contact with the Appellant by phone on a number of occasions after 5^thAugust 2016 but failed to do so.

He stated that he had no contact with the Appellant until 25^thAugust 2016 when she asked for her P45. That request resulted in a meeting on 26^thAugust 2016 when her P45 was given to the Appellant.

Discussion and conclusions

The Court was faced with an almost total conflict between that parties as to the factual matrix of this case.

The Appellant submitted, and stated in evidence, that she returned to Ireland from China late at night on the 3^rdAugust 2016. The Respondent submitted that the Appellant contacted him on 3^rdAugust.

The Appellant submitted that she contacted the Respondent for the first time by phone on 5^thAugust 2016. The Respondent submitted that the parties met on that date.

The Appellant submitted that she met the Respondent some time between 5^thAugust and 26^thAugust 2016 and that she ‘begged’ for any form of work at that meeting. The Respondent submitted and stated in evidence that no contact, other than by phone from the Deli manager to the Appellant, took place between 5^thAugust 2015 and 25^thAugust 2016 when the Appellant phoned seeking her P45.

The Respondent submitted that Mr McG made a number of attempts in the weeks following the 5^thAugust 2016 to contact the Appellant to repeat his offer of employment made on 5^thAugust.

The Court notes that, notwithstanding the Respondent’s evidence and submission to the effect that no dismissal took place and that the Respondent was at all times seeking to encourage the Appellant to return to work, albeit in a role other than in the deli, Mr McG instructed his book-keeper on 8^thAugust 2016 to draw up the Appellant’s P45. That P45 was drawn up and certified the cessation of the Appellant’s employment as having taken place on 29^thJuly 2016.

The Court is unable to reconcile the evidence and submission of the Respondent with the fact that Mr McG instructed his book-keeper, on what presumably was the Book-keeper’s first working day after what he says was a meeting with the Appellant and what the Appellant says was a phone call on the 5^thAugust, to draw up a P45 certifying the termination of the Appellant’s employment.

Faced with conflicting evidence and submissions the Court, in light of the indisputable fact that the Respondent instructed his bookkeeper to draw up a P45, the Court finds the evidence of the Appellant as to the events of August 2016 to be more credible.

The Court finds, on the balance of probabilities, that the Appellant was dismissed on

26^thAugust 2016.

Section 6(1) of the Act provides as follows

• 6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

The Respondent in the within matter has offered no substantial grounds justifying his dismissal of the Appellant. In those circumstances the Court, by operation of the law, finds the dismissal of the Appellant by the Respondent to be unfair.

The Court, in light of the fact that the Appellant has secured employment since her dismissal, concludes that compensation is the appropriate remedy in this case.

The Court has carefully considered the submission of the Appellant as regards her earnings and the loss she suffered as a result of her dismissal.

The Court takes account of the fact that the Appellant secured employment approximately two weeks after her dismissal and notes her unsupported contention that this employment carried a lesser rate of pay than that which she had enjoyed in her employment with the Respondent. The Court has been offered no submission or evidence as regards the Appellant’s attempts to mitigate her loss in that respect.

The Court measures the amount of compensation which is just and equitable in all the circumstances of this matter at €2,500.

Determination

The Court determines that the Claimant was unfairly dismissed and orders that the Respondent should pay the sum of €2,500 in compensation for the loss she suffered as a result of her dismissal. The decision of the Adjudication Officer is set aside.

The Court so determines

Signed on behalf of the Labour Court



Kevin Foley
CR______________________
09 April, 2018Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.