EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Ashleigh Martin -claimant UD2158/2011
Liam Fraser & Joe Fraser T/A Fraser Oil -respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Revington S.C.
Members: Mr D. Moore
Mr C. Ryan
heard this claim at Dublin on 24th July 2013, 19th December 2013 and 16th July 2014
Claimant: Mr. Michael McNamee B.L. and Mr. Barry O’Mahony B.L. instructed by Patrick V. Boland & Son, Solicitors, Main Street, Newbridge, Co Kildare
Respondent: The respondent (JF) was present on the 19th December 2013 and 16th July 2014
The claimant’s date of termination was entered as 21st January 2011 on the T1A form. However, the claim was lodged with the Tribunal on 16th November 2011, outside the stipulated six-month time limit for claims under the Unfair Dismissals Acts, 1977 to 2007. It was submitted by JF that the claim was out of time.
Summary of evidence:
Dismissal as a fact was not in dispute.
The claimant commenced her employment on 18th October 2008. The claimant was a student for the duration of her employment with the respondents. She worked 5-15 hours per week for the business. In December 2010 her hours were halved. Subsequently, in January 2011 she was informed by the Shop Manger (Ms. J) that there were no hours for her at that time. Ms. J assured the claimant that she would telephone her as soon as hours became available.
On occasions between January and July 2011 the claimant attended at the shop to see if any hours were allocated to her on the roster. She did not raise the fact that no hours were allocated to her with the Shop Manager, as she thought the shop was quiet and that she would receive hours during the summer months when it was busier. Her name remained on the roster.
The claimant recalled that in January 2011 two male employees commenced working in the shop in or around the time that she was informed that no further hours were available. At the time the claimant was told they were employed to carry out forecourt work but this was work which the claimant carried out in addition to operating the till.
However, the claimant heard nothing further until the Shop Manager telephoned her to collect a P60 on 14th July 2011. When the claimant later called to the shop to collect this document she enquired as to whether or not she still held a position with the respondents. The Shop Manager told her she should have received a P45. The claimant only then realised that she had been dismissed but this had never been said to her nor communicated to her in writing. The claimant’s father later requested a P45 on her behalf.
During cross-examination the claimant agreed that she mainly worked Sunday mornings. The claimant refuted that she was asked to alter her hours by the Shop Manager as allowed for under her contract of employment. It was put to the claimant that her employment was terminated by the Shop Manager due to the claimant’s unwillingness to change her hours due to social and personal reasons. The claimant stated this was untrue and that there was no discussion in January 2011 regarding a change of hours and in any event there was no personal reason preventing her from changing her hours.
The claimant gave evidence of her loss and her efforts to seek new employment which were unsuccessful.
The respondent JF stated in evidence that the claimant worked under a contract for 5-20 hours per week and the contract contained a flexibility clause regarding the hours of work. A number of issues arose in January 2011 that required the rostered hours of staff to be changed. Due to thefts the respondents decided there was a requirement to roster both a male and female member of staff at the same time for security reasons. A meeting was held with the shop managers in January 2011. The managers were also informed that the rosters were to come in line with the business.
Subsequently, Ms. J contacted JF reporting that the claimant was unwilling to be flexible with changing her rostered shift for personal reasons. JF later emailed Ms. J on 12th January 2011 stating that if the claimant could not comply with the contract of employment then her employment was terminated. A letter of dismissal was drafted by JF which was sent to the shop for the manager to provide to the claimant. It was JF’s belief that the Shop Manager held a meeting with the claimant but Ms. J was not present at the hearing to give evidence. He accepted that the claimant’s name may have continued to appear on the roster until her name was archived. The claimant’s position was replaced.
JF added that P60s were prepared much earlier in the year and had the claimant been visiting the premises as per her evidence she would have been provided with this document. He heard nothing further until he was contacted by the claimant’s father in September 2011.
Determination on preliminary issue:
The Tribunal did not have the benefit of hearing from the Shop Manager (Ms. J) as to whether or not she actually informed the claimant that she was dismissed earlier than the conversation held in July 2011. The Tribunal is satisfied on the evidence presented that the first indication the claimant had that her employment was terminated was in July 2011. Accordingly, the Tribunal finds that the claim under the Unfair Dismissals Acts, 1977 to 2007, was brought within the stipulated time limit.
Determination on substantive issue:
The Tribunal carefully considered the evidence in this case. Despite not having the benefit of Ms. J’s evidence, the Tribunal on the balance of probability preferred the evidence of JF. The Tribunal accepts the evidence put forward by JF that there was a requirement to alter the claimant’s hours for security reasons and that the claimant refused to co-operate with this change. In such circumstances, the Tribunal finds that the dismissal of the claimant was not unfair and the claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
However, as no evidence was produced to show that the claimant was paid her relevant notice entitlement, the Tribunal finds that she is entitled to the sum of €70.00 (being the equivalent of one week’s gross pay as calculated from the claimant’s P60 for 2010) under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
The Tribunal dismisses the claim under the Redundancy Payments Acts, 1967 to 2007; as such a situation does not arise in the circumstances of the case.
Sealed with the Seal of the
Employment Appeals Tribunal