John McGrath's Convenience Store Ltd Spar Milltown (Represented by Dermot Duignan) v Yuejiao Wang (Represented by Pat Burke)

• Jurisdiction: Ireland
• Judgment Date: 09 April 2018
• Judgment citation (vLex): [2018] 4 JIEC 0903
• Date: 09 April 2018
• Docket Number: FULL RECOMMENDATION DETERMINATION NO.UDD1820 ADJ-00006373 CA-00008708-001
• Court: Labour Court (Ireland)

Labour Court (Ireland)

FULL RECOMMENDATION

UD/17/172

DETERMINATION NO.UDD1820

ADJ-00006373 CA-00008708-001

PARTIES:

John McGrath's Convenience Store Limited Spar Milltown (Represented by Dermot Duignan)

and

Yuejiao Wang (Represented by Pat Burke)

DIVISION:

Chairman: Mr Foley

Employer Member: Ms Connolly

Worker Member: Ms Treacy

SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015

SUBJECT:

1 1. An appeal of an Adjudication Officer's Decision no. ADJ-00006373.

BACKGROUND:

2 2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court on the 4 December 2017 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 22 March 2018. The following is the Court's Determination:

DETERMINATION:

3 This matter comes before the Court as an appeal by Ms Yuejiao Wang (the Appellant) of a decision made by an Adjudication Officer in relation to her complaint that she had been unfairly dismissed contrary to the Unfair Dismissals Act, 1977 to 2015 (the Act), by her former employer, John McGrath's Convenience Store Limited (the Respondent).

4 The fact of dismissal is in dispute.

Background

5 The Appellant was employed by the Respondent from 2008 until the termination of her employment on 26 ^th August 2016. The Appellant contends that she was dismissed on that date by the Respondent and the Respondent contends that the Appellant resigned on that date.

6 The Appellant was absent from her employment by reason of a combination of paid and unpaid leave from 20 ^th June 2016. She contacted the Respondent in early August 2016 seeking to return to work.

Summary position of the Appellant.

7 The Appellant submitted that she returned to China in June 2016 for six weeks. She submitted that this was her regular annual pattern of leave taking and that the Respondent had never raised a difficulty in this regard previously.

8 She returned to Ireland on 3 ^rd August and contacted Mr J. McG of the Respondent company by phone on 5 ^th August seeking a return to her role as a deli counter worker. Mr McG advised her that the role was not available. She met with Mr McG on an occasion between 5 ^th August 2016 and 26 ^th August 2016 where she sought alternative or part time employment. The Respondent made no such work available to her.

9 She called to the Respondent premises on 26 ^th August 2016 to seek her return to work. On that date she met with Mr McG who advised her that her employment was terminated. He gave her P45 to her. That P45 specified the date of cessation of her employment as 29 ^th July 2016.

10 She submitted that the Respondent had at no time following the 5 ^th August 2016 offered her alternative employment to her role on the deli counter. She submitted that she requested the Respondent to provide her with such alternative employment. She submitted that she never asked for her P45 because she was at all times seeking to return to work. She submitted that she did not resign her employment.

Testimony of the Appellant

11 The Appellant gave evidence in accord with her submission.

Summary position of the Respondent.

12 The Respondent submitted that the Appellant did not have a pattern of taking six weeks leave every year. The Respondent clarified that the Appellant took three weeks leave every year to return to China and that in addition to that leave she also regularly took further unpaid leave at the same time.

13 In 2016 the...