EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD534/2014
CLAIM OF:
James Moloney
against
Health Service Executive
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. Hurley
Members: Mr T. Gill
Mr D. McEvoy
heard this claim at Limerick on 9th March 2016 and 9th May 2016
Representation:
Claimant:
Mr Colin Morrisey, English Leahy Solicitors, 8 St Michael St, Tipperary Town, Co. Tipperary
Respondent(s) :
Ms Lisa Walsh, University Hospital Limerick, Employee Relations, Human Resources Department, Ul Hospitals, HSE, Limerick
Preliminary issue:
A preliminary issue arose as to whether the Tribunal had jurisdiction to hear this claim.
The respondent’s position was that the claimant had been granted a career break for one year from 26th May 2007 to 24th May 2008 but that since then he had failed to correspond with them or notify them of any change of address. The claimant failed to respond to numerous attempts by the respondent to contact him and the respondent therefore held that the claimant had affectively terminated his employment with them sometime in 2009.
The respondent therefore sought direction as to whether the Tribunal had jurisdiction to hear this claim given that the claim was lodged on 7th April 2014.
The claimant’s position was that he had not received any of the correspondence sent by the respondent as he had changed his place of residence. He also told the Tribunal that he had not received any phone calls from the respondent despite the fact that they had his current phone number. The claimant also alleged that he had contacted the Assistant Head Porter of the respondent in relation to his return to work at prior to the end of his career break but was told that he could not return to work.
Determination on preliminary question:
The Claimant’s case is dependent on his employment status with the Respondent at the date of the lodging of his complaint form or T1A. The T1A form is receipted by the Workplace Relations Commission, as successor to the Employment Appeals Tribunal, on 7th April 2014.
The respondent contends that the Claimant’s employment had been terminated by the Claimant’s own inaction, failure to attend for work, with the exception of one day’s unpaid work in 2008 and critically his refusal, wilful or otherwise, to communicate with the Respondent in response to the latter’s numerous efforts to contact him. In this respect the single most significant communication from the Respondent is the penultimate and ultimate paragraphs of the letter dated 31st January 2014 to the Claimant’s solicitor. In the view of the Tribunal these provisions merit verbatim repetition because of the clarity and finality they bring to the dispute. On their own they encapsulate and are determinative of the litigation, albeit at a level subordinate to that of a court, between the parties.
The letter states that “since 2008 Mr. Moloney has not maintained contact or engaged with us or advised of a change in his contact details.
Mr. Moloney had a responsibility to maintain contact with us should he have wished to seek further employment. By Mr. Moloney's own actions he has effectively terminated his employment with the HSE/University Hospital Limerick."
The Claimant in the view of the Tribunal did not comply with the clear conditions of the Career Break Scheme set out in a letter addressed to him dated 30th April 2007. The claimant did write to the respondent on 12th February 2008 requesting a return to work, however when the respondent subsequently tried to contact the claimant on a number of occasions by phone and by letter dated 7th October 2009 they received no reply.
The Tribunal is satisfied that by the claimant’s failure to respond to the letter from the respondent dated 7th October 2009 or to contact the appropriate person/section within the respondent that he affectively terminated his employment in 2009.
The claimant did not lodge his claim under the Unfair Dismissals Acts 1977 to 2007 until 7th April 2014 which is beyond the time limit for lodging such a claim as set down in the Acts and therefore the Tribunal declines jurisdiction to hear this claim.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)