Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2007/209_06.html
Cite as: [2007] NIIT 209_6, [2007] NIIT 209_06

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THE INDUSTRIAL TRIBUNALS

CASE REF: 209/06

CLAIMANT: Antony Diamond

RESPONDENT: Desmond Heathwood T/A Hectors House

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly/constructively dismissed and the claim must fail.

Constitution of Tribunal:

Chairman: Ms D A Elliott

Members: Mr A Huston

Mr J McCusker

Appearances:

The claimant was represented by Mr G O’Neill, Newry and Mourne Citizens Advice Bureau.

The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Worthingtons Solicitors.

1. ISSUES

1.1 The tribunal had to determine if the claimant had been unfairly dismissed by the respondent. It was the claimant’s case that he had been constructively dismissed.

1.2 The respondent contended that the claimant had not been dismissed but that he had resigned. The respondent denied that the claimant had been constructively dismissed.

2. FINDINGS OF FACT

2.1 In determining the facts in this case, the tribunal had regard to the written materials, witness evidence and submissions by the parties.

2.2 The tribunal found that the claimant worked for the respondent for fifteen years. In or about July 2005 the respondent advised the claimant that due to a downturn in that business it might be necessary to reduce his working week. This amounted to a change in the claimant’s terms and conditions of employment. The claimant accepted this change when it was introduced in early August 2005 on the basis that two conditions were to be fulfilled. The claimant sought a pay slip which he had never previously been provided with and also that his wages would be paid into a bank account to meet his direct debits. The claimant was concerned that he would be unable to manage on his reduced income and understandably looked for additional work to supplement his reduced income for a three day week.

2.3 The claimant was offered a part-time position with Tesco on 28 September 2005. The claimant was advised by Tesco that he should provide a P45 before commencing work. The claimant assumed that this document was to prove that he was entitled to work in the United Kingdom and assumed that his employer had to have this document before he could start work. On 28 September 2005 the claimant advised the respondent by telephone that he required a P45. The respondent stated that he did not appreciate the significance of the request at that time and advised his mother who acted as his book keeper. The respondent’s mother advised that the request for a P45 meant that the claimant was leaving his job. The respondent immediately put in place alternative staffing arrangements as the claimant was due to start working with Tesco on Saturday, 1 October 2005. The respondent was able to do so with limited difficulty as his wife changed her arrangements for Tuesday and the Saturday worker was organised to provide additional cover.

The claimant’s position with Tesco involved working Tuesday, Wednesday and Saturday nights until Christmas 2005. The claimant had hoped to switch over one day of work in the respondent’s shop to enable him to do both jobs. The claimant stated that Tuesday was his only cross over day and he hoped to swap that day with another. The respondent stated that he only became aware of these facts at 3.00 pm on 30 September 2005, one hour before the end of what he understood was the claimant’s final day. The respondent took the view that the claimant had resigned when he requested his P45, other arrangements were then put in place. The claimant gave evidence under cross examination that he had advised the respondent during the phone call on 28 September 2005 that his employment with Tesco was short term.

2.5 The tribunal found as fact that the claimant did not realise the significance of his request for a P45 during the telephone call on 28 September 2005. The tribunal finds as fact that the respondent did not appreciate the significance of the claimant’s request at that time. The tribunal further finds that the claimant did not advise or convey that his contract was short term when he requested his P45. The tribunal reaches this conclusion on the basis of the claim form, response and evidence of the parties. The claimant did not appreciate the significance of his request at the time of this telephone conversation and was therefore less likely to have mentioned this information. The claimant did not mention this matter in his evidence in chief.

2.6 The tribunal finds as fact that the claimant did not work a notice period and had taken his holiday leave entitlement at the date his employment ended. The tribunal finds that this was not a redundancy situation.

3. LAW AND CONCLUSIONS

Article 126 (1) of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) states that “an employee has the right not be unfairly dismissed by his employer”.

3.2 Where, as in this case, the employer (the respondent) denies that the employee has been dismissed, the claimant in seeking to establish a case of unfair dismissal on the grounds of constructive dismissal has resort to Article 127 of the 1996 Order. Article 127 provides that “an employee is dismissed by his employer if … and only if … 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”.

3.3 The tribunal then turned to the issue of constructive dismissal and considered whether the claimant had been dismissed by the respondent as described by Article 127(c) of the Employment Rights (Northern Ireland) Order 1996. The principles of law relating to constructive dismissal are set out in the leading case of Western Excavating ECC -v- Sharp [1978] IRLR 27. An employee is entitled to treat the contract of employment as terminated where the employer has breached an expressed or implied term of the contract to such an extent that there is evidence that the employer has committed a fundamental breach of contract. Four conditions must be met:

There must be an actual or anticipatory breach of contract by the employer.

That breach must be sufficiently important to justify the employee resigning or, it must be in the last of a series of incidents which justify his leaving.

He must leave in response to the breach and not for some other unconnected reason.

He must not delay too long in terminating the contact in response to the employer’s breach, otherwise he will be deemed to have waived the breach and agreed to vary the terms.

3.4 Such conduct by the employer broadly speaking must be conduct which shows a clear intention not to be bound by the terms of the contract of employment, and can include behaviour which effectively destroys the relationship of mutual trust and confidence which both parties are entitled to expect from each other.

3.5 The case of Mahmud -v- Bank of Credit and Commerce International [1997] IRLR 462 provides authority for the proposition that an employer shall not without reasonable and proper cause conduct itself in a manner calculated likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee.

3.6 It was the claimant’s case that he had been forced out of his job on 30 September 2005 as the respondent forced him to decide between working for him or Tesco and thereby the respondent behaved in such a way as to entitle him to terminate the contract, in accordance with the provisions of Article 127 of the 1996 Order.

3.7 The tribunal unanimously considers that when the claimant requested his P45 he did not appreciate the significance in terms of his employment during that conversation. The respondent did not understand the significance of the request for the P45. Thereafter the respondent understood the claimant to have resigned. The tribunal took the view that this was not unreasonable, given the circumstances, that the respondent formed that conclusion. In light of the request for a P45 the respondent made alternative staffing arrangements. The claimant gave evidence that he had been advised in or about 28 November 2005 that he would have been entitled to redundancy money and for that reason proceeded to lodge his claim form. The claimant had not previously been aware of his entitlement.

3.8 The tribunal therefore unanimously concluded that the claimant had not established that he had been dismissed by the respondent. The tribunal further concluded that the claimant failed to establish that he had been entitled to terminate the contract by leaving his employment because of the conduct of the respondent. The claim therefore must fail.

3.9 The tribunal concluded that the claimant was not entitled to a redundancy payment, holiday pay or pay in lieu as claimed in the originating claim.

3.10 The claim form, response and oral evidence from the claimant and respondent reflected that the claimant earned £170 net per week which was paid in cash. There was no dispute about this part of the evidence. The claimant had never received a pay slip although he did receive a P60. This document was produced by the respondent and reflected the following figures for the tax year to 5 April 2005. The total pay reflected was £6,760 with a tax deduction of £201 and employee’s national insurance contributions of £225.68. It would appear that there is a discrepancy in these figures as the P60 reflects a lower weekly income than was in fact paid in cash to the claimant. The respondent indicated through his solicitor by letter dated 13 October 2006 that the respondent had no explanation to offer in relation to the figures contained in the claimant’s P60 and as such was not in a position to assist the tribunal in this regard. The tribunal had directed the parties to attend at the reconvened hearings on 6 October 2006 and 30 November 2006 however the respondent declined to do so. The claimant gave evidence on 30 November 2006 and advised that he had never received a pay slip despite requesting same. The claimant was paid in cash and had no responsibilities during his employment which related to the shop’s finances. The claimant refuted the suggestion raised by the respondent’s solicitor on instructions at the hearing on 6 October 2006 that his wages may have included an extra allowance for travelling. In all the circumstances the tribunal formed the view that the contract of employment was tainted with illegality and the respondent could not therefore rely on same. In view of the fact that the claimant’s claims have failed it is not necessary to make a ruling on whether the claimant can rely on enforcing his statutory rights. The absence of a pay slip ensured that he was placed in a difficult

position. This factor would have made it more difficult for the tribunal to conclude that the claimant was a party to or was aware of any illegality.

Chairman:

Date and place of hearing: 21 June 2006, 6 October 2006 and

30 November 2006, Belfast

Date decision recorded in register and issued to parties: