Benjamin Aihie v Noonans services Group Ltd [Employment Appeals Tribunal]




Claimant: Mr. Paudie O'Mahony, Babington, Clarke & Mooney, Solicitors, 48 South Mall, Cork

Respondent: Mr. John Barry, Management Support Services (Ireland) Limited, The Courtyard, Hill Street, Dublin 1


Employment law - Unfair dismissal - Preliminary issue - 6 month time limit for claims - Availability for alternate work - Constructive dismissal - Unfair Dismissals Acts, 1977 - 2007


Preliminary Issue


The application in this instance was not brought within six months of the alleged dismissal. Having heard submissions made on behalf of the parties in this regard, the Tribunal took the view that there was a lack of clarity with regard to the date of termination. The Claimant received his P45 from the Respondent on the 7th of January 2009. The application was brought within six months of this date. In all the circumstances the Tribunal took the view that the application had been properly brought within the time provided for by Statute, and the Claimant was entitled to proceed.


Respondent's Case


Evidence was given on behalf of the Respondent the confluence of which was as follows:


The Respondent took over the contract for the cleaning of an office building in Wilton in Cork in April 2008. The Claimant was employed by the Respondent prior to the transfer of the cleaning contract and was entitled on the transfer of undertaking to be employed by the Respondent. The Respondent was required to regularise the provision of cleaning services in the office building and required the work to be done between 6.00 p.m. and 9.00 p.m. Monday to Friday. The Claimant who is a Jehovah's witness wished to attend religious services on Tuesday and Thursday evenings for two hours and would not be available during the times required by the Respondent.


Furthermore, when the Respondent sought alternative cleaning work for the Claimant he was unable to place him because of the Claimant's inability to use a buffing machine. This inability was caused by virtue of the fact that the Claimant is an amputee.


The Respondent also investigated the possibility of getting morning work for the Claimant but discovered that the Claimant had educational commitments in the mornings.


A number of meetings were held to resolve the matter between the Claimant and the...

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