Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2004/591_03.html
Cite as: [2004] NIIT 591_03, [2004] NIIT 591_3

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THE INDUSTRIAL TRIBUNALS

CASE REF: 591/03

APPLICANT: Selina Marshall

RESPONDENT: G S Associates (Scotland) Limited

DECISION

The unanimous decision of the tribunal is that the applicant was unfairly dismissed and that the respondent pay to the applicant the sum of £5,645.20 by way of compensation.

Appearances:

The applicant was represented by Mr B McKenna, Barrister-at-Law, instructed by John J Rice & Co Solicitors.

The respondent was represented by Ms M Anderson, Peninsula Business Services Limited.

Summary Reasons

The tribunal heard evidence from the applicant that she had commenced work for Initial Cleaning Services, as an operative in their Makro cleaning contract, in 1995. The date of commencement of work was approximately Easter 1995. The arrangement was that a mini bus picked up the relevant staff and took them to work. The bus was owned and provided by Initial and driven by John McGoogan. The bus was necessary because there was no other way of getting to the Makro premises in time. Public transport would not have been suitable. The applicant went by the bus from the time she started . No charge was made by Initial in connection with the bus. The contract was taken over by the respondent in January 2003. The applicant was not involved in any real discussion with them. A representative of the respondent came to the Makro premises on Christmas Eve 2002. She spoke to some of the employees and handed out forms. She also talked to the supervisor, Mrs Boyd. There was no discussion with the applicant about the bus. After the last shift prior to the transfer of the cleaning contract to the respondent the applicant spoke to Ms Helen Bryson of the respondent by telephone to enquire about the transport. She asked what was happening the next morning about the bus. The reply was that there was no bus. Ms Bryson said that it was her decision not to have a bus. The applicant indicated there was no other way she could get to the premises. Ms Bryson replied that she would be at the Makro premises for the rest of the night working and that if the applicant came in in the morning Ms Bryson would see her. There was no further conversation.

The tribunal also heard from the applicant's former supervisor Mrs Lilian Boyd. She had been employed by Initial and had been working in Makro in the year 2000 and thereafter. She also started work at 7.00 am and was brought to work in a bus belonging to Initial and driven by Mr McGoogan. It would have been difficult to get to work in time otherwise. There was no question of payment as the bus was provided by Initial. In cross examination Mrs Boyd stated that she had asked Ms Helen Bryson about the matter of transport. It had been indicated that there would be transport and that Ms Bryson would ring Initial to see if Initial would sell the mini bus. She also took Mr McGoogan's telephone number. These discussions were in the run up to the take over of the cleaning contract at Makro. Mrs Boyd's employment did not continue after the transfer of the contract since she regarded the cost of the bus fares as too great.

Evidence was also given by Ms S McCready, the Regional Manager of Initial Cleaning Services, who had been Operations Manager at the time when the contract with Makro had been obtained and at the time the contract was transferred to the respondent. She had written a letter dated 7 January 2004 confirming that the transport provided by the cleaning staff working for Initial at the Makro site was an integral part of their terms and conditions. In evidence to the tribunal she confirmed this to be the case and further confirmed that no payment or deduction from wages was made in relation to the provision of this service. In cross examination she stated that some fifteen or so workers were transported to the site in this way, that the bus had been purchased for the Makro contract and that a driver was employed for that purpose. She agreed that there were one or two members of staff who lived close by who made their own arrangements. Ms McCready further indicated that all relevant information was provided to the respondent at the time of the transfer and that any information which they sought would have been supplied to them. She stated that they would have been told about the transport situation.

No evidence was called to contradict the evidence described in the previous three paragraphs. That evidence is consistent with the applicant's Originating Application. It is also consistent, insofar as it concerns the actions of the applicant at the time of the transfer of the contract, with the facts stated in the respondent's Notice of Appearance, notably at paragraph five of that document. The tribunal accepts the evidence given by and on behalf of the applicant and finds that the provision of transport to the Makro site was part and parcel and a term of the applicant's contract of employment with Initial.

The respondent in paragraph two of the Notice of Appearance accepted that the transfer of the contract at the Makro site was governed by the Transfer of Undertaking (Protection of Employment) Regulations 1981 and no attempt was made to resile from this position at the hearing. Accordingly, the tribunal finds the contractual requirement to provide transport for the applicant to the Makro site was transferred to and fell to be performed by the respondent.

The respondent did not provide such transport as is made clear in the evidence given by the applicant and as appears in paragraph five of the Notice of Appearance. The applicant had made it clear that she could not and would not come to work without transport. The respondent had made it equally clear that no transport would be provided. In the tribunal's view the requirement to provide transport was, having regard to the degree of inconvenience and financial impact which would be occasioned by lack of it, was a fundamental term of the contract and breach of that term by the respondent amounted to circumstances in which the applicant was entitled to terminate her employment without notice. As she did, in fact, terminate her employment she is regarded as constructively dismissed. No reason or justification was put forward for any such dismissal and, accordingly, the dismissal must be treated as unfair. Nor was it suggested, at the hearing, that there was any question of contributory fault. Accordingly, the applicant is entitled to appropriate compensation.

In relation to compensation the parties agreed the following figures namely:-

BASIC AWARD £1,995.00

Loss of Statutory Rights £ 250.00

Loss of Wages from the effective date of termination to

the date of the applicant's obtaining new employment £ 235.00

Continuing Loss from the date the applicant obtaining

new employment to the date of hearing £3,165.20

TOTAL £5,645.20

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The applicant sought, in addition, future loss at continuing rate of £38.60 per week. It was suggested that, as she had been born on 5 April 1940, it was now unlikely that she would get any further employment and that it would be appropriate to award continuing compensation until she reached the age of sixty five. On the part of the respondents it was suggested that approximately one and a half years had elapsed since the date when the applicant's contract had been terminated and that that should be sufficient in the circumstances.

The tribunal considered that it would be just and equitable to compensate the applicant up to the date of hearing but no further. It would be reasonable to expect that by that time the applicant should have been able to recover her position to the same level of remuneration as she had enjoyed previously.

No question of recoupment arises.

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 2 September 2004, Belfast.

Date decision recorded in register and issued to parties: