Industrial Tribunals Northern Ireland Decisions

Murphy v Nursing Caring Direct Ltd (Constructive Dismissal) [2003] NIIT 2589_02 (28 November 2003)

INDUSTRIAL TRIBUNALS

CASE REF: 2589/02

APPLICANT: Dolores Murphy

RESPONDENT: Nursing & Caring Direct Ltd

DECISION

The unanimous decision of the tribunal is that the applicant's claim for constructive dismissal be dismissed.

Appearances:

The applicant was represented by Mr M Wolfe Barrister-at-Law instructed by Trevor Smyth & Co Solicitors.

The respondent was represented by Mr J Dunlop Barrister-at-Law instructed by Cleaver Fulton Rankin Solicitors.

Summary Reasons

1. The tribunal had an agreed bundle of documents before it and heard evidence from the applicant, the respondent's managing director Mr O'Loan, the respondent's book-keeper Ms Theresa McGlone and Ms Denise Rodgers, a former employee of the respondent company.
2. On balance, the tribunal preferred the evidence of the respondent witnesses as being more internally consistent.
3. The tribunal found the following facts:-

(i). The applicant was employed by the respondent as a nurse manager in its office in Lisburn.

(ii). The applicant in bringing her claim to the tribunal relied upon a course of conduct by the respondent as follows:-

(a) In June 2002 an alleged unsympathetic comment about her absence while at her critically ill mother's bedside;

(b) A refusal to honour a commitment to give her a day off for a graduation on 5 July 2002;

(c) In August 2002, the respondent's failure to permit the applicant three days off to move house and

(d) A meeting with the applicant and Denise Rodgers at which Mr O'Loan and Theresa McGlone met to investigate time sheet discrepancies on the part of care workers.

4. Considering all these events in turn the tribunal finds as follows:-

The incident concerning the applicant's mother

The tribunal finds on the evidence that Mr O'Loan was not aware of the reason why the applicant was absent from employment and when he was aware expressed concern for the applicant saying that he did not know her situation. Of itself, the tribunal does not find that this is a fundamental breach of the contract of employment. Even if it were to be a fundamental breach, the tribunal finds that the applicant affirmed it by staying on in the employment of the respondent.

5. The refusal to give a day off previously granted for the graduation of the daughter of the applicant's partner.

This incident is linked to the above incident as it happened in or around the same time. For operational reasons, days off could be cancelled. The applicant did not challenge this withdrawal of her previously granted day off at the time. If this is a fundamental breach of the contract of employment, the tribunal finds that the applicant affirmed it by staying on in the employment of the respondent. The tribunal did not find this to be a fundamental breach of the applicant's contract of employment.

6. The house move

At very short notice while Mr O'Loan was on holiday in Spain, the applicant required three days off to move house. The tribunal was subjected to discussion by the parties as to whether or not this was a bizarre situation and that conveyancing practice was such that it was entirely inconceivable that this could happen. The tribunal does not consider that it is necessary to make any finding on this issue. The tribunal finds that in relation to this matter the respondent acted entirely reasonably by giving the applicant two out of the three requested days.

7. The time sheet discrepancies

During an audit by the respondent company's external auditors, the problem with time sheet discrepancies came to light. The respondent's business operates by the use of care plans which detail the number of hours for which the respondent will be paid for providing care workers. During an audit, the company's auditors found that the care workers had been overcharging the company and being paid for hours that the company could not claim from the various Trusts for whom it operated the care plans. The book-keeper of the company, Ms Theresa McGlone, brought this to the attention of Mr O'Loan the managing director. They immediately arranged a meeting with the applicant and Denise Rodgers. This meeting took place on 21 October 2002. The purpose of the meeting was to discuss the discrepancies. Mr O'Loan, considered that it was the responsibility of Denise Rodgers to check the care plans and the hours submitted by the care workers to the respondent company. In evidence to the tribunal Ms Rodgers corroborated this contention of the respondent. She also admitted that sometimes she simply submitted the forms for payment by the book-keeper without checking them to see that they were correct. The other three parties at the meeting were therefore very surprised when the applicant claimed to be responsible for checking the forms. The applicant alleged that Mr O'Loan had accused her of being lazy and incompetent. On the evidence, the tribunal does not find that this was the case. Instead of sitting with her colleagues and trying to resolve the discrepancies and investigate the various time sheets produced by Ms McGlone, the applicant stormed out of the office in tears. Mr O'Loan, Ms McGlone and Ms Rodgers were stunned and then Denise Rodgers left the office to go after the applicant. She was unable to persuade the applicant to come back into the office and thus the applicant resigned and left immediately. The tribunal finds that the respondent was entirely entitled to investigate these discrepancies and that the manner in which it was done by Ms McGlone and Mr O'Loan was reasonable. The tribunal is not able to find that this respondent investigating discrepancies in its business in a quiet controlled manner is guilty of a fundamental breach of this applicant's contract of employment.

8. There were various attempts by the applicant's representative to challenge the credibility of Mr O'Loan. The first was an allegation that he had endeavoured to induce Ms Rodgers his former employee to give evidence favourable to him to the tribunal. No objective basis for this contention was adduced to the tribunal and the tribunal has disregarded this in reaching its decision. Secondly, the tribunal heard the applicant on recall indicate that she had searched the back issues of the Belfast Telegraph and had found an advertisement of a nursing co-ordinator position for Belfast. This was adduced to support the contention that the respondent was trying to bring about a situation where the applicant would have no choice but to resign. The tribunal does not find that this was the case. The tribunal finds that the nature of the respondent's business requires there to be a nurse in place at all times. The tribunal also finds that at the time of the advertisement, the respondent was endeavouring to expand its business within Belfast, and indeed, the applicant had assisted the respondent with a tender to Belfast City Hospital for nursing care. This was not disputed by the applicant. In any case, the tribunal finds that as even if the tribunal were to take the applicant's case at its height on this point and accepts that the applicant did not know about this advertisement, if she did not know at the time it was placed, how therefore could it have operated on her mind to make her feel uncomfortable and unwanted within the respondent company?
9. Taking all the above factors into account, the tribunal finds that the respondent has endeavoured to facilitate most of the applicant's requirements, and does not find that any of the individual incidents taken either singly or together could constitute a fundamental breach of the applicant's contract of employment entitling her to leave immediately.

Chairman:

Date and place of hearing: 11 and 12 September 2003 and 28 November 2003, Belfast.

Date decision recorded in register and issued to parties: