UDD1859

This is an appeal brought on behalf of the Estate of Maureen Scanlon (Deceased) (‘the Respondent’) against a decision of an Adjudication Officer (ADJ-00004743/CA-00006636-001, dated 21 February 2018) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer decided that the claim under the Act was well-founded and awarded Ms Kathleen Quinn (‘the Complainant’) compensation of €10,000.00. The Complainant gave evidence on her own behalf. Mr Jimmy Scanlon (a son of the late Mrs Maureen Scanlon) and Mr Sean Coyle (an employee in Scanlon’s Jewellers, the business run by the late Mrs Scanlon as a sole trader) gave evidence on behalf of the Respondent.

Jurisdictional Issue

A jurisdictional issue (which had been canvassed before the Adjudication Officer and determined by her in the Complainant’s favour) falls to be determined by the Court afresh on the appeal. The Respondent submits that the Complainant had insufficient continuous service with the Respondent to entitle her to pursue her claim under the Act. The Respondent’s position is that the Complainant’s employment commenced on 12 December 2014 and was terminated by telephone on 17 October 2015. Thus – allowing for one week’s statutory minimum notice – the relevant date of dismissal, in the Respondent’s submission, is 24 October 2015. The P45 issued to the Complainant states her date of cessation to have been 29 October 2015.

Mr Jimmy Scanlon’s evidence was that a named person (DB) who had been working on a part-time basis in his later mother’s jewellery shop as a sales assistant gave him two weeks’ notice in or around the end of November 2014 of her intention to leave her employment. Ultimately, DB worked until 5 December 2014. At that point in time, the late Mrs Scanlon – although not in great health – was still able to come down to the shop to permit the other employee, Mr Sean Coyle, to take his rest breaks. The witness’s recollection is that he contacted the Complainant by telephone on 3 December 2014 to enquire if she would be interested in taking up the part-time position that would be available after DB’s departure. Counsel for the Respondent opened a copy of text messages sent from Mr Scanlon’s phone by his son on 5 December 2014 to the Complainant which it is submitted corroborates the Respondent’s position regarding the Complainant’s start date. The message reads: “Kathleen can you ring re job dad was on to you about on Wednesday night”. The Complainant’s evidence was that that text message related to a different matter entirely – a request from Mr Scanlon to clean an apartment that he owned.

Mr Scanlon went on to tell the Court that the period immediately prior to Christmas was relatively busy in the shop and, therefore, the Complainant was required to work a number of days a week. In January 2015, the family decided that they would no longer open the shop on Mondays and the Complainant wouldn’t be required Mondays going forward. Instead, the Complainant was offered work on Fridays. She worked a full day on a Friday for three weeks and then reverted to a half day on Fridays. The late Mrs Scanlan became seriously ill in mid-April 2015 and remained in hospital until mid-June 2015. On her return, he says he engaged the Complainant under a separate arrangement to look after Mrs Scanlon in her apartment above the shop for two to three mornings per week and on Friday afternoons. He says the Complainant was paid for this work from Mrs Scanlon’s personal resources.

Mr Scanlon said that the Complainant had missed a number of Saturdays in the shop in September and October 2015. On Saturday 17 October, Mr Sean Coyle was anxious to get some time off to attend the removal of his late friend. Mr Scanlon told the Court that he telephoned the Complainant to see if she was going to come into work that day so as to facilitate Mr Coyle’s absence. However, she didn’t come to work that day or ever again. Mr Scanlon’s evidence is that the Complainant told her during the telephone conversation that she was unwell and unable to work and, in any event, she wanted to resume her pottery classes and would not be returning to work in the shop. Mr Scanlon says the Complainant’s last day of paid employment was 10 October 2015. He also told the Court that as he needed somebody to work in the shop in the busy period coming up to Christmas, he asked a friend of his – EM – to work there on a temporary basis, starting during the last week in October. He recalls that Mr Coyle took a week’s annual leave commencing on 7 November 2014 and that EM provided cover in his absence.

Mr Scanlon also recounted an incident that occurred when the Complainant arrived into the shop on 29 October 2015. The Complainant had been told by an employee in Mr Scanlon’s own business that Mr Scanlon had informed that person that the Complainant had resigned from her position in the shop and from her role as part-time carer to Mrs Scanlon. He says that when the Complainant approached him on 29 October 2015, he offered her one day’s work per week in Mrs Scanlon’s shop but the Complainant told him that she would never work for him again.

Mr Coyle told the Court that he had worked in the Respondent business for some thirty-six years. In 2014, he worked Tuesdays to Saturdays. At that time, DB was also working in the business on a part-time basis, including on Mondays. He also told the Court that DB gave her notice in late November and finished up working there on 5 December 2014. His clear recollection was that the Complainant’s service did not overlap with that of DB. Finally, Mr Coyle also referred to a telephone call he heard Mr Jimmy Scanlon made to the Complainant on 17 October 2015, the day on which he wished to have some time off to attend the removal of his late friend. That morning he says he had received a text from the Complainant telling him that she was unable to attend work that day as she was too unwell. Mr Scanlon telephoned her and asked here did she want to continue working in the business. He understood that the Complainant would not be returning to work again following that telephone call.

The Complainant’s case is that her employment commenced no later than 1 November 2014 and terminated on 29 October 2015. She told the Court that she received a phone call from Mr Jimmy Scanlon in late October 2014 offering her part-time employment in his mother’s shop and that she immediately accepted that offer as she had been unemployed in 2014. The Complainant’s recollection is that she must have started the job early in November, at the latest, as she was able to buy an iPad for her son’s birthday later that month. She says she would not have been in a position to do so but for the income she was receiving from her part-time job in the shop. She confirmed that she did not see DB working in the shop after she herself had commenced working there. The Complainant also gave evidence in relation to her efforts to mitigate her loss after her employment with the Respondent ceased.

Discussion and Decision

Having considered the Parties’ submissions, the evidence - oral and documentary - adduced before it, the Court finds that the recollection of the Respondent’s witnesses about when the Complainant’s employment commenced is more coherent than that of the Complainant and is also consistent with P45 and P35L documents furnished to the Court on behalf of the Respondent. DB’s P45 (furnished with her express written consent) confirms her employment with the Respondent ceased on 5 December 2014. The Respondent’s P35L for 2015 confirms that the Complainant was employed for 36 weeks that year and EM was employed for 6 weeks. The Complainant’s P45 confirms her employment ceased on 29 October 2015.

On the basis of the foregoing, therefore, the Court finds that the Complainant’s employment did not commence until after DB’s departure on 5 December 2014. It ceased on 29 October 2015. That being the case, the Complainant did not accrue sufficient continuous service with the Respondent to entitle her to maintain a claim under the Act against the Respondent.

The decision of the Adjudication Officer is, accordingly, set aside.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
12 November, 2018Deputy Chairman



NOTE

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