EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Melissa Farrell, - claimant
Whitewash Limited, - respondent
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Mac Carthy S C
Members: Mr G. Mc Auliffe
Ms. N Greene
heard this claim at Dublin on 16th December 2014
Claimant(s) : Mr James Doran BL instructed by Manus Sweeney & Co, Suite 226 Capel
Building, Mary's Abbey, off Capel St, Dublin 7
Respondent(s) : Director of respondent company
Summary of case
Dismissal in this case was in dispute. The claimant was employed by the respondent launderette/dry cleaning business from September 2012. She gave evidence that she was due to report for work at 4pm on Saturday, 28 September 2013. At approximately 2.30pm she telephoned her manager known as (T) and informed her that she would not be going to work because of the manner in which she was being treated. In that regard she told the Tribunal that she was being ignored in the workplace by an employee known as (S) and there was a bad vibe between them. She gave evidence that she was very upset during the telephone conversation and (T) requested her to attend for work. She could not recall the exact words of the conversation but understood from (T) that her job would be gone if she did not attend for work. She could not recall if (T) said that her action in not reporting for work was grossly irresponsible/unacceptable and could not recall if she said she would be leaving her job but she did not resign from her job. She expected (T) to enquire into the issues between herself and (S) and could not recall if (T) told her that she would address the issues at a later stage.
She gave further evidence that she received a text message from (T) on the following Monday stating that her P45 and any monies owing to her would be forwarded by post and understood from this that she had been shoved aside. She accepted that she had similar difficulties with another work colleague previously and (T) had addressed those issues. She accepted that (T) had always been reasonable prior to 28 September 2013.
(T) gave evidence that she received a phone call from the claimant at approximately 2.35 on Saturday 28 September 2013 and the claimant said that she was not going to work as there was a bad vibe between herself and employee (S). This was the first occasion that the claimant raised this issue and she had never previously complained to her about employee (S). She asked the claimant to report for work and told her that she would speak with her and (S) regarding the matter. She had facilitated the claimant previously when similar issues arose between the claimant and another employee by ensuring that both parties did not work the same shift pattern.
She was trying to be as fair as possible on this occasion but the claimant point blankly refused to meet with her and discuss the difficulties. She explained to the claimant that it was too late to find a replacement at such short notice and that her actions were grossly irresponsible/unacceptable and tantamount to giving up her job. She gave evidence that the claimant then stated that she will leave her job and the conversation ended abruptly as she could overhear a male person shouting and swearing in the background.
She gave further evidence that she sent a text message to the claimant on the following week. She could not recall the exact day but believed it was the following Friday. She informed her that she was sending her P45 and any monies owing. She also stated that she was happy to meet with her on personal level. She told the Tribunal that she did not dismiss the claimant as dismissal was not in her head at all and she had always enjoyed a good relationship with the claimant.
The Tribunal considered the evidence adduced at the hearing and notes that there was a substantial measure of agreement in the evidence given by both parties. The Tribunal finds that both the claimant and the witness for the respondent were honest witnesses.
The claimant alleges that she was unfairly dismissed from her employment and the Tribunal must address the question as to the termination of the claimant’s employment. As dismissal was in dispute there is an onus on the claimant to satisfy the Tribunal that she was dismissed from her employment.
The Tribunal finds that the claimant did not give any clear evidence of a dismissal and the Tribunal is not satisfied that she was dismissed from her employment. In those circumstances the Tribunal finds that there was no dismissal and the claim under the Unfair Dismissals Acts fails.
The claim under the Minimum Notice and Terms of Employment Acts also fails.
Sealed with the Seal of the
Employment Appeals Tribunal