Complainant

Respondent

Anonymised Parties

A Barista

A Cafe

Representatives

 Solicitors

 Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00018404-001

10/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00018469-001

12/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00018469-002

12/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00018469-003

12/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00018493-001

11/04/2018

This is a claim for Unfair Dismissal in circumstances where the Complainant went out on notified Maternity Leave. The issue between the parties is whether the parties knew or ought to have known whether or not the Complainant intended returning to the workplace at the end of the said Maternity Leave.

The Complainant was represented and gave her own evidence. The Complainant withdrew two extraneous claims for Unfair Dismissal as only one claim was needed. There are also complaints under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 and under section 7 of the Terms of Employment (Information) Act, 1994

The Respondent was represented and written submissions were provided. The Respondent company is owned and operated by two sisters both of whom were present and gave evidence.

I have carefully considered the evidence adduced at the hearing of this matter. The Complainant had been a successful Employee of the Respondent Café since 2011. She was their most senior member of staff and was on extremely friendly terms with the two owners (NL and CL) of the Café. The Complainant became pregnant and was due to go out on Maternity Leave in September of 2016 with an expected return date of the 6th of March 2017 (this date is agreed though a different one appears in the medical reports). There is a clear conflict of evidence regarding the conversation had around the Maternity Leave and the intention to return to the Workplace. The Employer formed the definite impression that the Complainant did not intend returning to the Café at the expiration of her Maternity Leave though they were sorry at the prospect of losing a valued Employee. The Complainant was sure that her return to work was inevitable and that she wanted to come back to a place where she had always enjoyed working.

In any event, no formal Notice was given and no P45 issued and I have to accept that the Respondents were operating on the understanding that even if the Complainant was really leaving them, they were inclined to leave the door open for her return just in case.

I have no doubt that if the Complainant had presented herself for employment on the 6th of March 2017 her employment would have been continued with her full service intact.

As it happens, the closeness between the parties meant that they were in regular contact throughout the Maternity Leave. I accept that neither party raised the issue of a potential return to work one way or another. The Complainant believed she would return to work and the employer believed she probably would not.

During the Post-Partum period it is accepted that the Complainant was not doing as well as she might have hoped. I have been given a chronology of attendances with her G.P which show that the Complainant was under the medical supervision of her G.P. The records show that the Complainant attended with her G.P three times in October November after the Baby was born. This appear to be routine check-ups.

Crucially the date for the return to work comes and goes without comment on the 6th of March 2017. The fact that the Complainant does not attend for work passes without comment on the part of the Employer which tends to suggest a genuinely held belief that the Complainant had never intended returning to the workplace.

Three days later on the 9th of March, the Complainant attends with her G.P. at which time she appears to have become overwhelmed with the situation and feels stressed and unable to return to work. It is quite clear that there is a discussion around work and the inability to return to work at this meeting and indeed at subsequent consultations held with the G.P in May and June of 2017. I am mindful of the fact that this conversation would have been necessary in any event as the Complainant was in receipt of illness benefit from Social Welfare and her incapacity to work would have to be confirmed by her G.P.. Therefore, the fact of having a conversation around work does not of itself suggest a definitive pre-existing intention to return to the Café which the Complainant was heretofore an employee of.

I note that the parties gathered at the end of March 2017 to celebrate the christening and there was no conversation at that time as to where they stood in relation to their Contractual relationship and if same even existed. On balance, I accept that the Employer at this time was aware of the fact that the Complainant was having a difficult time medically and that she was tired and low. I would also accept that it was not unreasonable of them to assume that this was primarily as a result of having a newborn baby and being generally exhausted coping with all that that entails. There is nothing to suggest that the Respondent was aware that the Complainant was being certified as unfit to work as any medical certs created were not being presented to them.

The Complainant accepts that she did not present medical certs but makes the case that her Employer never asked for them because they knew from her conversations with them that she was unwell. On balance, I would accept that the Complainant was only considering returning to work on a part-time basis, if she was considering it at all.

I accept that during this period and up to September the Respondents would have been happy had they been asked by her to re-engage the Complainant. In fact CL, even asked the Complainant outright in June of 2017 if the Complainant was coming back to the Café to which the Complainant replied I don’t know (although the Complainant cannot recall this).

I have no doubt that difficulties arose in the course of a planned renovation of the premises in and around August of 2017. The Respondent engaged the Complainant’s partner/husband to carry out the construction works and subsequently fell out with him. The Respondent had no reason to blame the Complainant nor did they. However, it was against this backdrop that the Complainant texted the Respondent saying “If you still need me I’m available from Monday. Thanks.”

Had circumstances been different, I believe the Respondent would have jumped at the chance of taking the Complainant on board. Contrary to the evidence given, I would even say that the Respondent would have taken her on in a part time capacity as they were looking for staff at this point in time with NL due to go out on her own Maternity Leave in due course. However, the situation had changed and the Respondent was uneasy about having the Complainant back into the workplace where associates of the Complainant’s partner had been in and out looking for the Complainant’s partner in a menacing way. I believe that that the Respondent decided that bringing the Complainant onto the premises was just inviting difficulty.

The question for me to decide is whether this decision made on the 18th of October 2017 was a dismissal of an employee seeking to return to the workplace after an extended period of sick leave or a decision not to re-hire an employee who had left the employment nearly a year earlier.

As I indicated to the parties, for me the crucial issue is what was intended and understood by the parties at the commencement of the Maternity Leave and at the conclusion of the Maternity Leave. On balance I find that I favour the Respondent’s understanding of what the Complainant’s plans were. I accept that the Complainant did not expect to return to the workplace at the end of her Maternity Leave and that all parties understood this when the Complainant left in September. As I say, I think the Employer hoped she might return at some point in the future but had no expectation and therefore did not react to the non-attendance without explanation on the 6th of March 2017.

I believe that if the Complainant genuinely expected that she was due to return to the workplace on the 6th of March 2017 she would have been in touch before that date to confirm she did not think it would be possible and or to look for an extension of time – and nothing in the relationship between the parties would suggest that she would not have been accorded every facility if she flagged an intention to seek to return. I believe that the fact that she did not make any communication on or before the 6th of March is evidence of the fact that she did not feel obliged to because she had already indicated that she had no intention of returning.

The Complainant made two points.

Firstly that the Employer is obliged to make every effort to confirm that a person has resigned and whilst I accept that proposition in principal, in practise it is not always necessary and I can see that from the Respondent’s perspective nothing in what the Complainant said or did suggested an intention to return to their Café.

Secondly, I have been asked to consider the Complainant’s mind set at the end of her Maternity Period and in particular having regard to the fact that she had been experiencing feelings of depression and therefore maybe not having clarity of thought when the 6th of March came and went. I do not wish to be insensitive in this regard, but it does not explain the months and months of silence on the issue. The Respondent was aware that the Complainant was having difficulty but at no point was the Respondent notified that that difficulty was preventing the Complainant returning to their specific workplace.

In light of the foregoing I find that the Complainant was not Unfairly Dismissed

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977.

The claim brought under the Unfair Dismissals legislation fails.

The Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 fails in circumstances where the Complainant worked through her Notice period prior to taking Maternity Leave.

The Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 fails as no evidence was adduced.