FACTS
The claimant began employment as an office administrator with the respondent company, Sandisk International Limited, in or around 2006/2007. In early 2009, the claimant informed the respondent that she was pregnant and began her protective leave under the Maternity Protection Acts 1994 and 2004 on 3 August 2009.
Shortly before the end of her protective leave which was due to end on the 29 January 2010, the claimant’s solicitor wrote to the respondent alleging that due to the behaviour of the respondent the claimant had no option but to consider herself constructively dismissed.
The general manager of Sandisk International Limited replied to this letter on 7 January 2012 outlining that as the claimant was on maternity leave it would be unlawful for the respond to accept any resignation during such period. It further stated that if the claimant wished to confirm her resignation at the conclusion of the maternity leave she could do so and then at that point they would comply with her request for her P45.
On 13 January 2012, the claimant’s solicitor wrote to the respondent confirming that the claimant’s T1A had been sent to the Tribunal, and that it gave the 4 January 2010 as the date employment ceased.
It was submitted on behalf of the respondent that as section 23 of the Maternity Protection Acts, 1994 to 2004 (“the Acts”) provides:
“Each of the following shall be void:
a) any purported termination of an employee’s employment while the employee is absent from work on protective leave,
b) any notice of termination of an employee’s employment given while the employee is absent from work on protective leave and expiring subsequent to such a period of absence.”
then, due to the fact that both the letter of 23 December 2009 gives notice of termination of the employment by way of constructive dismissal and the Form T1A which cites the end of the employment as being on 4 January 2010 both came within the period of protective leave, the notice of termination and the termination of employment itself was void such that there was no dismissal meaning that the Tribunal had no jurisdiction to hear the claim.
It was submitted on behalf of the claimant that as she was on paid maternity leave until 31 January 2010, the employment ended on 1 February 2010 and that the date listed as the end of employment on the T1A form of 4 January 2010 was a mere error.
It was further submitted on behalf of the respondent that, if the date of dismissal was now going to be 1 February 2010, this meant that the claim for unfair dismissal had not been lodged in accordance with section 8 2(a) of the Unfair Dismissals Acts which provides:
“A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of this Act made for the purposes of subsection (8) of this section) to a Rights Commissioner or the Tribunal, as the case may be-
a) within the period of 6 months beginning on the date of relevant dismissal”
and again there was no jurisdiction to hear the claim.
DETERMINATION AND LEGAL REVIEW
The Tribunal accepts that both the letter and the Form T1A were served during the period of protective leave under the Maternity Protection Acts 1994 to 2004. The Tribunal upholds the respondent’s argument that the purported termination of employment occurred during the period of protective leave contrary to section 23(a) of the Acts and finds that there was no termination of the claimant’s employment within the protective leave.
The Tribunal further upheld the respondent’s argument and found that the notice of termination of employment was invalid in that the purported termination of employment was due to occur during the period of protective leave contrary to section 23(a) of the Acts. Therefore, the termination of employment was without notice for the purposes of law and this resulted in the employee in fact resigning without notice.
The Tribunal accepts as a matter of fact that this claim of unfair dismissal was initiated by the claimant filing a notice in writing with the Tribunal prior to the date of dismissal.
Section 7(a) of the Unfair Dismissals (Amendment) Act 1993 amends section 8 of the Unfair Dismissals Act 1977 by substituting the following subsection:
(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of this Act made for the purposes of subsection (8) of this section) to a rights commissioner or the Tribunal, as the case may be-
a) within the period of 6 months beginning on the date of the relevant dismissal, or
b) if the rights commissioner or the Tribunal, as the case may be, is satisfied that exceptional circumstances prevented the giving of notice within the period aforesaid as the rights commissioner or the Tribunal, as the case may be, considers reasonable,Â
and a copy of the notice shall be given by the rights commissioner or the Tribunal, as the case may be, to the employer concerned as soon as may be after the receipt of the notice by the rights commissioner or the Tribunal.
The Tribunal held that the filing of a notice in writing with the Tribunal prior to the date of termination of the employment and therefore prior to the period of six months beginning on the date of the dismissal but not withdrawn prior to the date of termination of employment constitutes the giving of notice in compliance with section 8 of the Unfair Dismissals Acts.Â
The Tribunal further held that by leaving the Form T1A with the secretary to the Tribunal prior to the commencement of the statutory period the form was with the secretariat at the commencement of the statutory period and throughout that period. Therefore the claimant had given notice within the statutory period as well as for an additional period and the Tribunal finds that the giving of additional notice does not invalidate the required notice.
The Tribunal held that nothing in the Unfair Dismissals Acts indicates an intention to prohibit or penalise a person who provides greater notice than is required by law. In this case there has been no evidence of prejudice to the employer by the giving of greater notice of the unfair dismissal clam than is required by law.
The Tribunal further noted that it is a requirement under the Maternity Protection Acts 1994 to 2004 that as a condition precedent to the return to work a person on protective leave must provide their employer with four weeks’ notice of their expected date of return. It is therefore understandable that a person on maternity leave contemplating circumstances which could amount to constructive dismissal might feel it necessary to decide if she intends to return to work at least four weeks in advance of the date of the end of the maternity leave period. If she were to leave it any later her option to return to work will have expired. By informing her employer in advance, her employment terminated without notice in law, but it is usual in constructive dismissal cases for the employee to terminate the relationship without giving statutory notice.
CONCLUSION
Any purported termination, notice of termination or suspension of employment while an employee is on a period of maternity leave, additional maternity leave, father’s leave, health and safety leave, leave to attend ante-natal classes, leave to attend ante-natal or post-natal care or for breastfeeding will be void. Both employees and employers must be aware of this if there is an intention to terminate or provide notice of termination or suspension of employment during a period of protective leave.
Employees usually wait until their notice period has ended and they have officially been dismissed before filing their Form T1A. As evidenced above, this case shows the Tribunals acceptance of filing a Form T1A before their notice period has ended and the employee has actually been dismissed. Employers may now find themselves in a situation whereby they receive notice of an employment claim against them before an employee has even been dismissed.
Full Case Decision:
http://www.eatribunal.ie/determinationAttachments/47c63f06-cc0e-405c-ac9a-c3de53b78548.pdfÂ
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