Flanagan v Byrnmar Ltd

• Jurisdiction: Ireland
• Judgment Date: 11 December 2007
• Judgment citation (vLex): [2007] 12 JIEC 1101
• Date: 11 December 2007
• Court: Employment Appeal Tribunal (Ireland)

Employment Appeals Tribunal

EAT: Flanagan (appellant) v Byrnmar Ltd (respondent)

Representation:

Claimant:	Mr. B. Sugrue BL
Instructed by	Ms. T. Hills Solicitor, Brophy & Hills Solicitors, Abbey House, 7 Bank Place, Limerick
Respondent:	Mr. B. Kelly BL,
Instructed by	Mr. P.J. O'Leary Solicitor, P.J. O'Driscoll & Sons, Solicitors 73 South Mall, Cork

Abstract:

Employment - Termination of employment - Dismissal - Redundancy - Whether dismissal prima facie unfair - Whether substantial grounds justifying dismissal - Employee returning from maternity leave - Whether claimant unfairly dismissed - Redress - Appropriate form of redress - Unfair Dismissals Acts 1977 to 2001 - Maternity Protection Acts

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:	CASE NO:
	UD542/2006 RP277/2006

Tracey Flanagan, of 61 Caravullawn, Lower Park, Corbally, Limerick

against

Byrnmar Limited Trading As Castle Estates

Lodge, Puckane, Co Tipperary

under

Redundancy Payments Acts, 1967 to 2003

Unfair Dismissals Acts 1977 to 2001

I certify that the Tribunal

(Division Of Tribunal)

Chairman:	Mr. P. Quinn BL
Members:	Mr. G. Phelan
	Ms. A. Clune

heard this claim at Limerick, on the 11th day of December 2007.

Facts the claimant was employed by the respondent as an accountant. Whilst the claimant was on maternity leave, the respondent underwent a re-organisation of its business and the claimant was told that she was being made redundant. She claimed that she had not been offered the opportunity to relocate to one of the offices that the respondent was retaining, which she would have availed of. The other relevant evidence was that the relationship of trust between the parties was intact and that the claimant had suffered some post-natal depression.

Held in directing that the claimant be re-engaged with the respondent, under the Unfair Dismissals Acts that, in breach of the provisions of the Maternity Protection Acts, the respondent failed to allow the claimant to return to her job or to provide her with suitable alternative employment on her return from maternity leave and such failure is deemed to be a dismissal. Having regard to the evidence and the absence of evidence from the respondent's director, the respondent failed to establish that there were substantial grounds justifying the dismissal on grounds of redundancy.

1 The determination of the Tribunal was as follows:-

2 The fact of dismissal was not in dispute in this case. At the hearing before the Tribunal, the Claimant did not prosecute a case under the Redundancy Payments legislation.

3 The Respondent is a letting company. The Claimant commenced her employment with the Respondent as a Financial Controller or Accountant, in or about the 18th March 2003.

4 Although the salary details as provided by the Plaintiff in her form T1-A were not disputed by the Respondent at the hearing, the Respondent's evidence was that the Claimant was initially engaged on a full time basis in this role and that she subsequently approached the Respondent to work on a part-time basis of four half days, plus one full day, at a salary of EUR25,000 per annum, whereas the Claimant testified that worked in total twenty hours per week over three full days from 9.00 am - 5.00 p.m.

5 The Respondent's evidence was that the Claimant, in addition to being a Financial Controller for the Respondent, also oversaw the accounts of various management companies, of which the Respondent acted as agent, instead of the Respondent having to outsource the accounts of such management companies to external accountants.

6 The Claimant also gave evidence that she was responsible for all matters pertaining to VAT, wages, salaries, holiday pay, sick leave and creditors, as concerned the Respondent's enterprise.

7 The Claimant commenced her maternity leave on the 13th June 2005. The Claimant testified that she initially intended to avail of a period of eighteen weeks paid leave and further period of unpaid leave, although ultimately, she notified the Respondent of her intention to return to work at an earlier date.

8 Throughout this time, the Respondent had been operating out of Limerick for about five years, as well as out of other branch offices in Cork; Galway, Waterford and Kerry. The Respondent's evidence was that ultimately on the advice of its accountant, it made a decision to franchise out all of its regional offices and to re-locate its centre of operations, or “ administrative department” to Dublin. In this regard, the Respondent gave evidence of endeavouring to secure the disposal of various regional offices after having moved the centre of its operations to Dublin in October 2005, although the “ lettings department” of the Respondent's enterprise did remain in Limerick thereafter.

9 Apparently the Respondent divested itself of the Waterford office in July 2006 and ultimately the Limerick premises, in September 2006.

10 A Director of the Respondent gave evidence that having made the decision to re-locate its Limerick operation to Dublin, all employees in the Limerick branch were offered the opportunity of re-locating to Dublin, or of availing of the Limerick franchise. Specifically, this is alleged by the Respondent to have occurred at a meeting in the Clarion Hotel in or about the 18th July 2005 at which the Claimant and another Director of the Respondent attended.

11 The Director of the Respondent who...