Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 2096/04

APPLICANT: Jennifer Sarah Catherine Reilly

RESPONDENTS: 1. Tony Kelly

2. Richard Stevens

t/a The Perfect Blend

DECISION

The unanimous decision of the tribunal is that the applicant was not unfairly dismissed contrary to Article 126 of the Employment Rights (Northern Ireland) Order 1996. Accordingly the applicant's complaint for unfair dismissal is dismissed.

The correct title of the respondent is that detailed above and the title of the proceedings is amended accordingly.

Appearances:

The applicant was unrepresented and appeared on her own behalf.

The respondent was represented by Mr Howard of Peninsula Business Services.

SUMMARY REASONS

1. The applicant alleged that the respondent dismissed her from her employment as a counter assistant on 15 June 2004. She further alleged that the respondent unlawfully withheld payment from the applicant in respect of holiday entitlement accrued at that date.
2. The respondent in his notice of appearance denied that the applicant had been dismissed and contended that the applicant terminated her employment. Further he denied that any payments had been withheld in respect of annual leave accrued to the date of termination of employment.
3. The tribunal heard evidence from the applicant and Mr Anthony Kelly and June Elizabeth Knight on behalf of the respondent. The tribunal having heard the evidence and considering all the documentation before it found the following facts:
4. The applicant was employed by the respondent from March 2003 until 19 June 2004 when the respondent accepted the resignation of the applicant tendered in a text sent to the respondent requesting that the applicant's P45, wages and holiday pay be ready for collection on Saturday 19 June 2004.
5. The respondent had not provided the applicant with a written statement of terms and conditions of employment. Accordingly holiday leave was determined in accordance with the Working Time Regulations (Northern Ireland) 1998 as amended. The applicant had commenced employment with the respondent in March 2003 so the relevant leave year ran from March to March.
6. The respondent in May 2004 had a meeting with all staff regarding the requirement for all staff to work Saturdays during the months of June to August. Staff at or after that meeting expressed no objections to this requirement governing annual leave.
7. The applicant had a week's annual leave in March 2004. The applicant requested annual leave in June 2004 and was advised that she could take 4 days annual leave in the week of 14 June 2004 provided that she reported for duty on Saturday 19 June 2004. The applicant did not object to this prior to commencing her leave.
8. The applicant terminated her employment 4 months through the relevant leave year. At the date of termination of employment the applicant's accrued entitlement to annual leave in that year amounted to a period of 7 days and she had availed of 9 days annual leave.
9. It was submitted on behalf of the respondent that there was no dismissal in the case either express or constructive. There was no fundamental breach of the applicant's contract of employment entitling her to treat herself as dismissed. The applicant, at the time of the resignation, had received in excess of her entitlement under the Working Time Regulations.
10. The applicant chose not to make any submissions to the tribunal.
11. The tribunal considered Articles 126 and 127 of the Employment Rights (Northern Ireland) Order 1996. The tribunal considered the facts found and in particular the words of the text alleged by the applicant as notice of dismissal from the respondent. The applicant sent a text to the respondent on 15 June 2004 indicating that she would not be reporting to work for Saturday 19 June 2004. The respondent replied by text. The applicant alleged that the words used by the respondent were to the effect that if she failed to report for work on Saturday "you will be sacked". While there was disagreement between the parties as to the exact wording of this text, the tribunal was satisfied that the respondent advised the applicant that if she failed to report to work on Saturday 19 June she may or could be sacked. The tribunal concluded that these words could not reasonably be interpreted as amounting to a dismissal. Equally the words used by the applicant in her text of 18 June 2004 requesting her P45 and outstanding wages were unambiguous. The tribunal took note of Barclay –v- City of Glasgow District Council (1983) IRLR

313 and Sovereign House Security Services Ltd –v- Savage (1989) IRLR 115 and were satisfied that the reasonable listener to those words used by the applicant would have construed them in the circumstances of this case as words showing a clear and present intention to sever the employment relationship.

12. There was no fundamental breach of the applicant's terms and conditions of employment. It is clear that the applicant had initially agreed to restricting her leave in June to 4 days. The tribunal concluded that the applicant had not been entitled on 18 June 2004 to terminate her employment without notice – Western Excavating (ECC) Ltd –v- Sharp [1978] IRLR 27 CA.
13. The material provisions on entitlement to annual leave and compensation related to entitlement to leave are found at Regulation 13 and 14 of the Working Time Regulations (Northern Ireland) 1998 as amended. It is clear from the Regulations that, in the absence of contractual provisions, the leave year for the applicant ran from 1 March 2001 and each subsequent anniversary of that date. Paragraph (2)(c) of Regulation 13 makes clear that the applicant was entitled to 4 weeks annual leave in every leave year. Regulation 13(9) makes clear that leave cannot be carried over from one leave year to the following leave year. In light of the finding of fact at paragraph 8 above and paragraph 9 of Regulation 13 of the Working Time Regulations (Northern Ireland) 1998 the tribunal concluded that the respondent is not required to make any further payment to the applicant in respect of annual leave. Accordingly that element of the applicant's complaint is also dismissed.

Chairman:

Date and place of hearing: 21 February 2005 and 21 March 2005, Strabane.

Date decision recorded in register and issued to parties: