EMPLOYMENT APPEALS TRIBUNAL
against the recommendation of the Rights Commissioner in the case of:
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms B. Glynn
Members: Mr T. Gill
Ms H. Murphy
heard this appeal at Ennis on 22nd January 2016 and 27th April 2016
Appellant : Mr Conor Glendon, Conor Glendon & Co Solicitors, Ard Na Greine, Clonroadmore, Ennis,, Co Clare
Respondent : Ms Clare O’Driscoll B L instructed by Tom McEvoy, Harrison O'Dowd, Solicitors, Estuary House, Henry Street, Limerick
This case came before the Tribunal by way of an appeal by a former employee against a recommendation of a Rights’ commissioner reference r-141175 –ud-13
The appellant gave evidence that she commenced working for the respondent company’s jewellery business in August 2011. She worked 3 days per week and was based in Quin and Ennis, Co. Clare. Her responsibilities included promoting sales, and online marketing as the company was involved in internet e-commerce business. She continued working 24 hours per week until April 2012 when her hours gradually increased, and from May 2012 she was employed on a full time basis. She enjoyed her work.
She told the Tribunal that when she commenced employment with the respondent that she had a stress related illness. Due to that certified condition her employer received a monetary subsidy from a government department.
The appellant gave evidence that in early 2013 the respondent opened a shop in Dublin. She expressed an interest in working in the Dublin shop and met with a director to discuss this issue. She told the Tribunal that this director made her an offer of working 24 hours per week at a rate of €13 per hour, plus commission to work in the Dublin shop, an offer she was happy to accept. She relocated to Dublin in August 2013. She was subsequently asked to sign a new contract and she was confused about this. She queried this with her employer and was then told that she would have to complete a form confirming her disability. This would allow her employer to continue receiving a subsidy. However since she was unable to do this as she was no longer suffering from a disability and she informed her employer and the department of this development.
Thereafter her employment relationship with her employer deteriorated and eventually she received her P45 on 8 October 2013. She had stopped working by this stage but denied that she handed in her notice or resigned from her employment.
The appellant described a meeting on 17 July 2013 with a director as friendly. She denied telling him she was intending to leave the company. Moving to Dublin, remuneration and other issues were discussed between them at that time. By mid September she was confused about her position with the respondent but sensed something was amiss. This feeling was compounded when the director contacted her saying her contract was terminated and she needed to sign a new one and attend to this wage subsidy.
A director of the company confirmed the employment record of the claimant up to July 2013. He added that the wage subsidy the respondent received for employing the appellant formed part of conditions of employment. Prior to meeting her on 17 July 2013 this witness was aware that the appellant was dissatisfied with her role and tasks in the Ennis branch. However, he was shocked to hear her state that she was leaving that position and moving to Dublin. He regarded this as verbal notice of termination of employment but accepted this notice was not set down in writing as required in her contract of employment. He then took a two week pre-planned holiday abroad.
The respondent then issued her with a P45 giving her date of cessation as 5 August 2013. Due to that document inadvertently been sent to a wrong address it was not properly delivered for some weeks. While the staff knew the appellant was leaving there was not a formal departure event.
This witness and the appellant met again in mid August where it was agreed that that was to re-engage on a part time basis undertaking marketing and web sales work. The issue of the subsidy was raised but never finalised between them and the payer of that money. Another issue relating to wages and jewellery went unresolved at the time. According to the witness the appellant went “off the radar” and was not producing any work. He was puzzled by the contents of an email she wrote to his wife/business partner dated 12 September in which she expressed confusion about her position regarding her employment. He maintained she had resigned her employment in July but the respondent did not directly respond to that email.
In accepting his signature was on a letter addressed To Whom It May Concern dated 22 August the witness denied it was his words on that letter. That letter stated that the appellant had been continuing in her employment with the company on a part time since 12 August and would be working 2 to 3 days per week.
The store manager in Ennis told the Tribunal there was no confusion over the appellant’s status with the respondent. She clearly understood that the appellant was leaving the company and seeking employment elsewhere to undertake marketing. A director mentioned the appellant’s departure to her on 18 July just before he departed on leave. This witness had observed the appellant actively seeking work with other businesses. While the appellant was happy with respondent she disliked her roles there.
There was a considerable amount of conflicting and contradictory evidence given in this case, with particular reference to the contents of a meeting between the parties on the 17th July 2013. Neither party was able to produce any notes and/or minutes in relation to same, so the Tribunal had to rely on the oral evidence given by both parties at the hearing, in addition to examining the content of the e-mails passing between the parties, both before and after this meeting.
Having examined all the paperwork produced at the Tribunal and having listened to the evidence given by both parties at the hearing, the Tribunal are satisfied that the Appellant moved to Dublin to continue working for the Respondent in their Dublin outlet. This employment did not terminate when the Applicant left Ennis. What is further clear is that the Respondent did not know that the wage subsidy he was obtaining for the Applicant would be discontinued, until after the Applicant commenced working for him in Dublin, which fact significantly contributed to his conduct thereafter.
A meeting took place between the parties on the 17th July 2013 at which the Respondent gave evidence that the Appellant terminated her Contract with the Respondent. He further gave evidence that he told the Appellant that her continuing work in Dublin was contingent on his obtaining the wage subsidy. However, no notes or minutes of this meeting were produced, and, more significantly, no mention of these matters were contained in the many e-mails which passed from the Respondent to the Applicant thereafter.
On the 10th September, the Appellant received a call from the Respondent informing her that he had terminated his Contract with her and that she would receive a P45 and a new Contract in the post. The Appellant was very confused by this and expressed her concern in an e-mail to the Respondent to which she received no reply.
Evidence was also given that the Applicant requested her P.45 from the Respondent, and this was not denied by the Applicant, but it is clear from the evidence that the request for same was not to terminate her employment with her employer, but was merely to force her employer to clarify and regularise her status with him.
There is also the matter that on the 22nd August 2013 the Respondent gave a letter on behalf of the Appellant confirming her employment with them.
Based on the evidence given orally by the parties at the hearing and documentation produced, the Tribunal finds that the Appellant did not resign from her employment with the Respondent. Rather, it is clear from the evidence produced that the Respondent terminated the Applicants employment with him, without justifiable cause or utilising proper procedures.
It follows therefore that the Appeal under the Unfair Dismissals Act 1977- 2007 by the Applicant succeeds, and the Tribunal varies the decision of the Rights Commissioner and increase the award given by her to the sum of €5,000.
Sealed with the Seal of the
Employment Appeals Tribunal