Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1048/08

CLAIMANT: Karen Dawn Pollock

RESPONDENT: GMK Property Management Ltd

DECISION

The claimant's claim for unpaid notice pay is dismissed.

Constitution of tribunal:

Chairman: Mrs Ó Murray (sitting alone)

Appearances:

The claimant attended and was not represented.

The respondent was represented by its two Directors namely Mr Michael Kane and Mrs Geraldine Kane.

The claim

1. The claimant's claim was for notice pay. The nett figure claimed was £265 being the approximate nett figure from a gross figure of £397.75.

The issue

2. The issue for the tribunal was whether the claimant was entitled to receive notice pay following termination of her contract.

Sources of evidence

3. The tribunal had a bundle of documents from both parties and heard oral evidence from the claimant on her own behalf and from Mr and Mrs Kane, Directors of the respondent company.

Facts found

4. The claimant worked for the respondent company from 2 January 2008 until 22 May 2008.
5. The claimant had given notice of her resignation on 13 May saying that she wanted to spend more time with her mother and on 14 May 2008 it was agreed between the parties that the claimant would stay at work until 31 May 2008.
6. On Tuesday 20 May, Mr Kane met Ms P, a colleague of the claimants, who said that Mrs Kane was aggressive and abusive to people in the office causing a poor atmosphere. Mr Kane spoke to his wife that night about this allegation and she became upset at the accusation.
7. On 22 May 2008, Ms P resigned without notice.
8. On the same day Mrs Kane met the claimant and asked her to sit at reception because another member of staff would sit at her desk to have access to all the documents she required for the financial reconciliations. Mrs Kane also advised the claimant that she could leave work the next day, that is Friday 23 May 2008. The claimant agreed to leave the next day.
9. Shortly after Ms P walked out, the claimant left the premises saying to Mrs Kane that she had "had enough".
10. The claimant's evidence was that she had previously had a great relationship with Mrs Kane and that they had worked well together but that she had decided to hand in her notice because of Mrs Kane's moods and the shouting at clients. No complaints were ever made by the claimant about this alleged behaviour. The only allusion to any problems working with Mrs Kane were raised by the claimant when she had a discussion with Mr Kane after she had handed in her notice and the claimant discussed whether or not she could become a partner in the business.
11. The claimant's evidence was that she left earlier than the agreed date of 23 May because of the atmosphere in the office and because she would be on her own with Mrs Kane.
12. The claimant set up her own business which, she said, started operating in June 2008 following receipt of a loan from her mother's inheritance. Ms P joined the claimant in her business from the outset. The claimant was clear in her evidence that she had always thought of starting her own business and the tribunal finds that she was making preparations to open the business in May 2008.

The law

13. The Employment Rights (Northern Ireland) Order 1996 sets out the minimum notice required to be given by an employee seeking to terminate their contract. Under Article 118(2) the minimum notice which the employee must give if they are employed for a month or more is one week. This is the statutory minimum which can be a longer period if the parties agree.
14. Under Article 123(4) it states: "If, during the period of notice, the employee breaks the contract and the employer rightfully treats the breach as terminating the contract, no payment is due to the employee under Article 120 or 121 in respect of the part of the period following after the termination of the contract".
15. Essentially this means that if the employee breaches the contract during the period of notice and the employer accepts that as repudiation of the contract, the employee forfeits their right to notice pay. A repudiatory breach of contract by either the employer or the employee entitles the other party to terminate the relationship without giving notice or by giving short notice.
16. The tribunal's breach of contract jurisdiction is set out in the Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994. Under the Order the tribunal has the power to award a sum of money in respect of sums outstanding following the termination of an employment contract.

Conclusions

17. The burden is on the claimant to prove her case. It is for the claimant to prove that the situation was such that she left on 22 May in response to some repudiatory breach by the employer. The tribunal does not accept the claimant's evidence on the reason for her leaving one day earlier than the agreed date of 23 May which had been brought forward from the agreed date of 31 May 2008. The claimant was a single mother with two children and in her evidence had little money so the tribunal finds it hard to accept that she would resign with nothing to go to simply because of an alleged atmosphere. If the atmosphere in the office was the reason for her resignation the tribunal finds it curious that no complaint was made about Mrs Kane other than discussion which took place with Mr Kane after the claimant gave her notice, regarding the claimant's discussions on becoming a partner. In summary, the claimant agreed termination date of 31 May and then agreed that that be changed to 23 May and the tribunal has not been persuaded by the claimant of any compelling reason why she failed to stick to the agreement and left one day early.
18. The claimant therefore left in breach of the agreement between her and her employer as regards her leaving date and she therefore repudiated the contract and forfeited her right to notice pay. By no means could the relationship be said to be still in existence after the claimant handed in her keys and walked out on 22 May 2008.
19. It is the tribunal's belief that the claimant was anxious to leave the respondent's employ in order to start her own business. The claimant had confirmed in evidence that she had always wanted to start her own business and the tribunal finds that this was the driver for her resignation and indeed for her anxiety to leave as soon as possible following the resignation of Ms P who joined her in the new business.
20. Numerous allegations were made by each party against each other in relation to their businesses and the effect on each other of the claimant leaving. None of this information was relevant to the issue before the tribunal which was whether the claimant had a good reason to walk out a day earlier than she had agreed.
21. In summary, the claimant's action resulted in her forfeiting the right to notice pay and her claim is therefore dismissed .

Chairman:

Date and place of hearing: 3 October 2008 at Belfast

Date decision recorded in register and issued to parties: