EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Ingrida Butvilience – claimant UD782/2013
Corballis Stores Limited T/a Centra – respondent 1
Sweeney’s Fine Foods Limited T/a Centra – respondent 2
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr T. Ryan
Members: Mr M. Carr
Mr F. Keoghan
heard this case in Dublin on 29th October 2014 and 12th January 2015
Claimant: Mr Jadel Naidoo BL instructed by Mark Dillon of Dillon Geraghty & Co,
Belmont, O’Growney Street, Athboy, Co. Meath
Respondent: Mr Joe Bulger of ESA Consultants, The Novum Building,
Clonshaugh Industrial Estate, Dublin 17
The determination of the Tribunal was as follows:-
The respondents’ representative said that the Tribunal had not jurisdiction to hear the claim because the claimant had only worked for respondent 1 from November 2012 to April 2013, a period less than the service required under the Unfair Dismissals Acts. The claimant’s representative replied that she had continuous employment in the same business from March 2007.
The Tribunal heard evidence on the preliminary issue. The Tribunal found that the claimant’s employment transferred under a transfer of undertaking from respondent 1 to respondent 2 in November 2012. Therefore her service is deemed continuous from March 2007 and accordingly the Tribunal has jurisdiction to hear this claim.
The claimant gave evidence. During her employment her work did not change much. She worked in the bakery for the most part but at times she worked in the deli. She liked her job but she was very busy and at one stage she was working long hours. She was also busy at home because she had a small child.
In March 2013 she decided to talk to the manager about her job. She liked her job and never had the intention of resigning from it. However she was very tired and felt that she needed time off to rest. She spoke to the manager and told him that she was thinking of leaving her job. He asked her to work for two more weeks and she agreed to this. However she expected to continue working after the two weeks ended.
Three days after her conversation with the manager the claimant visited her doctor. She was diagnosed with depression and given a medical cert. On 2 April 2013 she went to her place of employment and gave the manager her medical certs. The manager asked the claimant if she was coming to work the next day. She replied that she had medical certs. He threw the certs on the floor and went down stairs. The next day she received her p.45.
She was in shock. She could not understand it. She asked a friend to contact the manager. She later received a cheque for outstanding pay from the manager together with a letter inviting her to come back to say good bye and have coffee and a cake with her old colleagues. The claimant thought the letter funny. Following the termination of her employment the claimant was unavailable for work due to illness for a period of 8 months.
The claimant’s supervisor gave evidence. She started working for the respondent in March 2007 and the claimant started in October of that year. They became very close friends. The claimant liked her job but did not like the commute. When she worked long hours it was at her request.
On the morning the claimant spoke to the manager about her job she came to work dressed up and wearing high heels. She was not dressed for work. She said that she would not work that day and that she wanted to work closer to home and could get work covering maternity leave.
The claimant did not tell the supervisor that she was unwell. The supervisor thought she was absolutely fine. After the claimant ceased working the supervisor tried to contact her on Facebook but was blocked. However the supervisor changed her phone around this time and did not pass her new number on to the claimant.
The manager gave evidence. He liked the claimant and had a good working relationship with her. The previous year he had increased her rate of pay and he gave her a voucher for petrol to make travelling to work easier. In March 2013 he was catering at a local sports club. The claimant was rostered to work but she did not show up. She was due to return from holidays on 25 March. He stuck his head into the bakery that morning to say hello but the claimant was not in. He asked the supervisor if the claimant was due in and the supervisor say she was. Later that morning the claimant knocked on the office door, she came in and said that she was leaving. The manager responded: you are leaving. The claimant said yes I am leaving. He asked if anything was wrong and she just shrugged. He was short staffed at the time so he asked the claimant to work the following two weeks.
The claimant got up and left the office and went to the bakery where she put on a spare uniform and worked for several hours. She did not come to work the following day. She worked Tuesday, Wednesday and Thursday of the following week but asked to leave early.
On 4 April the claimant gave him a sick cert that expired that day. He asked her if she would be in the following day. She said no. The supervisor informed the bookkeeper that the claimant was going and a p.45 issued to her. This document was incorrect so another p.45 had to issue to the claimant. The manager accepted that it was a mistake not asking the claimant to put her resignation in writing but he was adamant that she had given him notice.
The Tribunal carefully considered the evidence adduced. For the purposes of the claim under the Unfair Dismissals Acts 1977 to 2007 respondent 2 is the correct employer.
The claimant told the Tribunal that she was certified by her doctor to be suffering from depression shortly after the meeting with the manager that ended her employment. Clearly this was a significant illness as she was unfit to work for 8 months. This meeting was highly significant yet no notes were made by the manager and he failed to confirm the claimant’s purported notice in writing. These steps are important particularly in this case where the claimant’s first language is not English.
However the Tribunal notes that the claimant did leave her employment and when she was once again fit to work she did not contact the manager and seek a return to work. The Tribunal finds that in all the circumstances, the claimant’s employment was not terminated as a result of dismissal. Therefore the claim under the Unfair Dismissals Acts 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal