EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Paula Laverty UD692/2014
- Claimant MN326/2014
De Exeter House Limited
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Daly B.L.
Members: Mr. D. Morrison
Ms. R. Kerrigan
heard this claim at Letterkenny on 5th October 2015 and 30th November 2015
Claimant: Mr. Gareth McGrory BL instructed by:
Mr. Denis O'Mahony, VP McMullin Solicitors, Port Road,
Letterkenny, Co. Donegal
Respondent: Mr. Frank Dorrian, PA Dorrian & Co, Solicitors, St Anne's Court, High Road,
Letterkenny, Co Donegal
The respondent provides respite to people who are having difficulties in their lives. AM, (CEO) of the business interviewed and gave the claimant her job. It was based on 40 hours per week as a receptionist with general office duties included. During the claimants tenure various people were let go so the job then began to include housekeeping/cooking and other things. The hours were also reduced significantly. The claimant says it is because of job bridge people and that she was told by AM it was hardly worth her while working. The respondent contends that the she was not dismissed and that the reduced hours are still available to her (over a five day week).
The claimant told the Tribunal of the various people she had worked with who were all let go. She said she was told by AM that her hours would be reduced to 2.5 days on her return from Christmas holidays. She agreed initially and drafted a letter to Social Welfare indicating her change of hours on 6th January. She was given time off to take the letter to the Social Welfare offices.
On 7th January in a follow up conversation with AM the claimant told the Tribunal that AM suggested that it would be uneconomical to drive to work each day. The claimant totally denied that there had been any mention of working 5 days a week or the cost of fuel in the initial conversation on 6th. AM told her that she didn’t have the money to pay her full hours and to blame the county enterprise board as they were withdrawing funding. A second letter was drafted for Social Welfare by the claimant stating that no hours available for her and this was signed by AM.
The claimant contended that a Jobbridge employee had taken her hours and it was only after her complaint was submitted that the respondent wrote to her advising that 20hours were still available.
AM gave detailed evidence of her educational background. She began the process of setting up the respondent business in 2010 and opened up to the public in June 2012. It is privately funded and at the time in question, there was a staff of five, including herself and the claimant.
AM explained to the Tribunal that the business was seasonal and by the end of 2012 it was quiet. In early 2013 business picked up but by again late 2013 it became quiet again, so quiet AM had to put the cook on a 20 hour week.
On the 6th January 2014 AM informed the claimant her hours of work would have to be reduced to 20 hours per week. AM told the Tribunal she felt the claimant anticipated this would happen. AM told the claimant she would require her to work five half days per week due to business needs. The clamant replied that it wouldn’t be worth her while. The claimant requested a letter for the Department of Social Protection concerning the reduction of her hours. The claimant drafted the letter herself. AM told the Tribunal she scanned over it before signing it. The claimant was given the afternoon off to go to the Department of Social Protection to sort it all out.
The following day AM again spoke to the claimant regarding the need for her to work five half days per week. The claimant again said it would not be worth her while working five half days due to the cost of petrol. The claimant requested a second letter for the Department of Social Protection as the hours offered were unsuitable. Again the claimant drafted the letter for AM to sign. AM told the Tribunal that again she only scanned over the letter before signing it, she trusted the claimant. AM also wrote a reference for the claimant.
AM told the Tribunal that she was shocked the claimant was going to leave. She was a valued colleague and a great worker. When asked AM explained she took over the claimant’s duties after she left.
On cross-examination AM said there had been no issues with the claimant and again stated she was a great worker and had not wanted to lose her. When asked she stated the conversation on the 6th January 2014 was only a five minute “general discussion”. When the claimant told her the 20 hours would not be worth she told the claimant that they would discuss it again.
When put to her AM a block period of working two and a half days was never agreed with the claimant. AM told the Tribunal that she felt the claimant had wanted to leave her employment.
When put to her she denied an intern (Ms. S) from Jobbridge had taken over the claimant’s role. She had been employed to oversee the marketing of the business. AM reiterated she had not read the second letter the claimant had drafted for the Department of Social Protection accurately. The letter had not stated that the hours available were “suitable”.
When asked if she contacted the claimant in the first three months after she left her employment she replied that she had not, the business had been quiet and the claimant had lodged a claim with the Employment Appeals Tribunal by then.
Ms. S gave evidence. She explained she had been employed by the respondent to oversee the marketing of the business. She agreed that she had answered the telephone on occasions but had not taken over the claimant’s role.
On the 6th January 2014 the claimant came into the staff room where she was sitting. The claimant told her she had been offered 20 hours per week but it would not be worth it due to the cost of petrol.
She left the respondent’s employment in July 2014.
The Tribunal finds the following was the most credible version of events:
The claimant was told by AM on the 7th January that her weekly hours would be reduced from 40 to 20 hours and that she would be needed to work five half days, not two and a half days. The claimant indicated that might be problematic for her.
AM approached the claimant on the 8th January to press her that she needed her to do five half days.
The claimant said that she wouldn’t manage that and AM told the claimant that she could not give her two and a half days.
This was misunderstood by the claimant that there were now no hours for her but AM was still referring to two and a half days of work for five days – not that there was no work for her.
The claimant, believing she had just been told that there were no hours for her said “do you want me to go?” The company then thought the claimant wanted to leave rather than do two and a half days.
This was a misunderstanding on both parties.
The Tribunal is confident that this was what occurred because the evidence adduced by both parties is candid, clear and credible.
However the onus is on the claimant to prove the fact of dismissal. At this point it could not be said there was a dismissal. It is unfortunate there was not a conversation to clarify what the actual position was. The fact that the claimant believed that she was being dismissed at this point in time is accepted. However on its own, at this point, that belief was not a fully reasonable belief and an onus lay on her to clarify her position, before leaving the job.
The relationship between the two had been always been positive until after this and it need not have taken the turn that it did – if further clarification had been given or sought.
But when AM was presented with the letter of the 8th January, this was an opportunity to clarify the situation. However in failing to read the letter properly but signing it anyway, she did not take that opportunity.
Numerous authorities emphasise that a signatory of a document is expected to know the content of that document. AM should have read the letter of the 8th January before signing it.
The question to be asked then is whether it was reasonable for the claimant to believe that she was dismissed, after AM had signed the letter. The Tribunal finds that it was reasonable for the claimant to believe that it must be assumed that AM understood the contents of the letter and accepted its terms.
Having taken all this into consideration and also taking into account that the claimant was also at fault for not clarifying the position with AM prior to the letter of the 8th January, the Tribunal finds the claimant was unfairly dismissed and awards the sum of €5,000.00 (five thousand euro) under the Unfair Dismissals Acts, 1977 to 2007.
Loss having been established the Tribunal awards the sum of €400.00 (four hundred euro), this being one weeks’ gross wages, under the Minimum Notice and Terms of Employment acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal