Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2004/3539_01.html
Cite as: [2004] NIIT 3539_1, [2004] NIIT 3539_01

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THE INDUSTRIAL TRIBUNALS

CASE REF: 3539/01

APPLICANT: Mary Alice Catney

RESPONDENT: N.I.P.P.A.

DECISION

The unanimous decision of the tribunal is that the applicant was not unfairly dismissed.

Appearances:

The applicant appeared in person and represented herself.

The respondent was represented by Mr David Dunlop, Barrister-at-Law, instructed by Elliott Duffy Garrett, Solicitors.

Summary Reasons

In reaching its decision the tribunal generally preferred the evidence given by or on behalf of the respondent. The tribunal did not find the applicant to be a credible witness.

The applicant was employed by the respondent on a succession of fixed term contracts commencing on 3 November 1997 with the last extension being to 31 July 2001. She was an area support worker whose job was to deal with community groups in or around their applications for Peace and Reconciliation funding.

The first tranch of funding was expected to come to an end around the end of 1999, but for various reasons it was extended by way of gap funding until Peace Two funding was secured.

There was some considerable doubt over whether or not NIPPA would receive any funding from Peace Two, and if NIPPA did not receive this funding then it was unlikely that it would continue as an entity. It was clear that even if funding were to be received, it would be unlikely to be at the previous level.

Negotiations were ongoing from in or around 7 March 2001 to 18 July 2001. At a meeting on 13 June 2001, at which the applicant was present, it became apparent that while NIPPA was recommended for IFE status, no posts could be advertised until negotiations were completed. The formal contract negotiation for funding was set for 18 July 2001.

On 23 June 2001 the applicant became ill and did not attend work. The applicant did not comply with the sickness absence notification procedures. It was only when the applicant was requested by Mr Neil Pinniger to provide sickness certificates by his letter of 18 July 2001, that a certificate dealing with the reason for her illness was provided to the respondent.

The applicant's reason for this was that she was too ill. It was certainly the case that she made little or no effort to contact her line manager and indeed failed to provide a self certification certificate. The applicant said that she had explained her situation to Elaine McElhill in a call from her to the applicant. Ms McElhill denied that this conversation ever took place. The tribunal noted that while the applicant provided BT telephone records, they did not support her contentions that she had made calls to the respondent. Furthermore, the tribunal has noted in the evidence from the applicant's father, that she was frequently coming down to his house to look after her mother during the period of her illness. This is contrary to the applicant's evidence that she was so ill that she was unable to contact her employer. On balance, the tribunal prefers the evidence of the applicant's father on this point. It is supported by the evidence of Mr Cahill Hynds whom the applicant allegedly contacted to explain that at the expiration of her sickness absence, she would be going to America with her mother to support her during the illness of her mother's brother. Mr Hynds said that this call never took place and furthermore contended that he was a friend of the applicant, concerned about her. as such had tried a number of times to contact her and had even called at her house to enquire after her health during the period of her illness. When taken together, the evidence of Mr Cahill Hynds which was despite many attempts to contact the applicant he was not able to speak to her after a call at the outset of her illness, and the applicant's father's evidence that the applicant came down to his house to look after her mother, on balance the tribunal considers that it is more likely than not that the applicant was not present in her house right throughout her sickness absence, and in fact was spending a great deal of time looking after her mother.

The applicant knew that there was doubt over the future of NIPPA. Before her illness, she and her colleagues had been enquiring regularly as to the position.

As this is the case, the tribunal finds it strange that the applicant made very little to no attempts to communicate with her employer during her illness and failed signally to inform her employer of her departure to America at the expiration of her sickness leave. The tribunal accepts the evidence of the respondent's Siobhan Fitzpatrick, that she did try to contact the applicant via her father and eventually managed to speak to the applicant while she was in America. Effectively, the applicant was told that her post had come to an end, and as she had not chosen to be present in Northern Ireland, the other area support worker was appointed to the new post under the second tranch of the Peace and Reconciliation funding. It is undoubtedly the case that the applicant's fixed term contract eventually came to an end and that constituted a dismissal in law, for which the applicant received a redundancy payment. The applicant's complaint about the respondent was that she was not afforded an opportunity to compete for the new job. She said that she was devastated to be told that her job was terminated when she was thousands of miles away. The tribunal finds that it was the applicant's choice to be absent without leave. The tribunal found that the applicant was fully aware of the compassionate leave requirements of the respondent and she simply did not take any steps to operate them. The tribunal finds that if the applicant was denied equality of access to the new job, this was entirely the applicant's fault. Accordingly, the tribunal finds that the applicant was not unfairly dismissed.

Chairman:

Date and place of hearing: 1 October 2004, Belfast.

Date decision recorded in register and issued to parties: