Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2005/2485_04.html
Cite as: [2005] NIIT 2485_04, [2005] NIIT 2485_4

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2485/04

APPLICANT: Fran Atkinson

RESPONDENTS: Alan Morrow and Sharon Lowe

t/a Quality Cleaning Service

DECISION

The unanimous decision of the tribunal is that the applicant was not unfairly dismissed. Upon the consent of the parties the tribunal orders that the sum of £28.00 be paid by the respondents to the applicant in respect of outstanding travel expenses.

Appearances:

The applicant was represented by Mrs J Griffith of Citizens Advice Bureau.

The respondent was represented by Mr J Dunlop, Barrister-at-Law, instructed by J W McNinch & Son, Solicitors.

It was agreed that the proper title of the respondents was Alan Morrow and Sharon Lowe trading as Quality Cleaning Services and the tribunal accordingly amended same.

The issues in this case were:-

(i) Whether or not the applicant was constructively dismissed by the respondents.

(ii) Whether or not the applicant was owed any monies by the respondents in respect of wages or holiday pay.

Having heard the evidence of the applicant and the evidence of Sharon Lowe, Etta McAuley and Alan Morrow and considered the documents produced the tribunal found the following facts:-

1 The respondents operate a contract cleaning business all over Northern Ireland. They have five area supervisors, four of whom are in Belfast and one in Magherafelt/Cookstown area.

2 The applicant who lived in Magherafelt was employed by them as an area supervisor in the Magherafelt/Cookstown area. Prior to her appointment to this position in May 2003 she had worked as a contract cleaner for some sixteen years for the respondents and their predecessors. As area supervisor she covered contracts in Londonderry, Coleraine, Cookstown, Toome, Magherafelt, Newry and Portadown. She was provided with a van and fuel costs. She interviewed, selected and placed girls in her area. If a girl did not turn up she had to find a replacement or do the work herself. She calculated their hours and pay and dealt with their complaints. She was paid £180.00 per two weeks for being area supervisor plus payment at an hourly rate of £5.00 for the cleaning work she did. In addition she had a van and cost of fuel.

3 On Sunday 7 March 2004 the applicant broke her left wrist. She left a message on the respondents' telephone informing them.

4 It was not disputed the applicant and the respondents met on several occasions after this. What was in dispute was what was said at the meetings. The respondents said the applicant resigned from her role as area supervisor whereas the applicant denied resigning and said the respondents asked her to resign. On balance the tribunal found the evidence of the respondents to be the more consistent in the circumstances. It was satisfied:-

(a) The respondents did not dismiss the applicant from their employment or as area supervisor.

(b) The applicant was embarrassed about the circumstances in which she broke her wrist and was upset about letting the respondents down. She was in a very distressed state about this and other personal matters, details of which were not provided to the tribunal. It was because of these personal matters that the applicant felt she could not continue as the area supervisor and resigned from that position.

(c) The respondents accepted her resignation as area supervisor, collected her van and mobile telephone and paid her wages owed. She was promised work as soon as she was able to return – Sharon Lowe said she would work out a run for her in Belfast.

(d) The applicant expected at some stage to get back her position as area supervisor.

(e) On or about 16 March 2004 she heard from a work colleague that someone had been appointed to it.

5 The applicant sent two certificates from her doctor, each for four weeks, to the respondents. She therefore did not regard herself as having been dismissed from their employment. The declaration on the first certificate signed by her was dated 22 March 2004 and the second 16 April 2004. She did not receive Statutory Sick Pay until end of April when her local Social Security Office contacted the respondents. While the tribunal did not accept the respondents had no intention of paying her, it was not impressed with their excuse for the delay that they could not contact her. They must have been aware she would have needed the money.

6 The applicant was due to return to work on Monday 24 May 2004. On or about 18 May 2004 she was telephoned by Sharon Lowe and offered fifteen hours per week in Cookstown and two days in Belfast which she accepted. She attended at the respondents' office on Shore Road, Belfast on Friday 21 May 2004 to confirm arrangements. She asked for a loan of £300.00 to pay tax and insurance on her car. Sharon Lowe gave her two cheques for this purpose. None of this suggested an employer who had dismissed or demoted an employee.

7 In Belfast, she was to work along with Etta McAuley, at different locations. She drove her own car to the respondents' office on Shore Road where she picked up a van. Then she collected Etta McAuley. On some occasions, depending where the job was, she collected Etta in her car and then went to the Shore Road to pick up the van.

8 The first job in Belfast was on Sunday afternoon 23 May 2004. Time sheets for this confirmed the applicant arrived forty five minutes late and worked one and quarter hours instead of two hours.

It was clear from the evidence of Sharon Lowe and Etta McAuley and also from the applicant's own evidence that she was late on a number of occasions after this in arriving at the respondents' premises in Belfast and was reprimanded. She resented being reprimanded. As an area supervisor she had been able to organise her work. On 16 June 2004 she was over an hour late and again on 17 June 2004.

9 On 17 June 2004 when reprimanded she threw down her keys and left.

10 The tribunal did not accept that the fact Etta did only two and a half hours on 17 June 2004 confirmed the job that day was not due to start till late, but rather that, without transport from the applicant, it was all Etta could do. The tribunal also did not accept that getting to jobs on time was not essential.

Article 126 Employment Rights (Northern Ireland) Order 1996 provides that an employee has the right not to be unfairly dismissed.

Article 127(1)(c) provides that an employee is dismissed by his employer where the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.

1 The essential elements of constructive dismissal are set out in Western Excavating (ECC) Limited -v- Sharp [1978] IRLR 27:

(i) There must be a breach of contract going to the root of the contract or which shows the employer no longer intends to be bound by one or more essential terms of the contract.

(ii) It must be sufficient to justify the employee leaving immediately.

(iii) The employee must leave in response to the breach and without delay.

2 Did the applicant resign in response to a significant breach of contract and if so what was the breach?

3 The applicant's case was that her employers changed the terms and conditions of her employment i.e. they demoted her from area supervisor to contract cleaner and as a result she suffered a wage loss and that after this they constantly criticised her time keeping; the final straw for the applicant was when Sharon Lowe called her into the kitchen of the business premises on 17 June 2004 and told her off for being late.

The facts do not support the applicant's case in particular she was not dismissed from her position as area supervisor. Further as soon as she was fit to return to work the respondents endeavoured to give her enough work to ensure she did not suffer a wage loss. It is correct they reprimanded her for her time-keeping but the applicant was late for work on those occasions.

The tribunal was satisfied the applicant was not constructively dismissed. There was no breach of contract going to the root of the applicant's contract of employment or which showed the respondents no longer intended to be bound by any essential terms of the contract; in short the applicant had no justification for her resignation.

Her representative in her final submissions also tried to argue that the applicant was dismissed by the respondents from their employment after she broke her wrist. The facts did not support this. The subsequent treatment by the respondents was totally at odds with their having dismissed her.

In relation to the second issue the tribunal, having considered the documentation produced and the evidence of Mr Morrow, was satisfied the applicant had been paid all arrears of wages and holiday pay due to her. It was accepted that she was owed a sum in respect of two days' travelling expenses. The parties agreed that a sum of £28.00 would be paid to the applicant in respect of this and the tribunal so ordered.

Chairman:

Date and place of hearing: 7 February 2005, Belfast.

Date decision recorded in register and issued to parties: