Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/02236_10IT.html
Cite as: [2010] NIIT 2236_10IT, [2010] NIIT 02236_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2236/10

CLAIMANT: Noemi Soosne Nyari

RESPONDENT: Mount Lourdes Grammar School

DECISION

The unanimous decision of the tribunal is that the claim of constructive unfair dismissal is dismissed.

Constitution of Tribunal:

Vice President: Mr Noel Kelly

Members: Mr Norman Wilkinson

Mr David Atcheson

Appearances:

The claimant appeared in person.

The respondent was represented by Ms A McClimond, Solicitor, of Murphy & O’Rawe, Solicitors.

The issue

1. The issue for the tribunal to determine was whether the claimant had been constructively and unfairly dismissed by the respondent contrary to the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’).

The hearing

2. The tribunal heard evidence from the claimant, Mrs Una Ditaranto, the cleaning supervisor, Mrs Katherine Colton, the school administrator, Mrs Yvette Lunny, cleaner, Mrs Magdalena Pazderora, cleaner, and Mr Kevin McManus, cleaner. It was also referred to parts of a bundle comprising 584 pages.

Findings of fact

3. The claimant was one of several part-time cleaners employed by the respondent to clean school premises. The claimant and several other cleaners were employed for 10 hours per week and, during term time, worked from 3.30 pm to 5.30 pm, Monday to Friday. During school holidays the part-time cleaners could work 10 hours per week at different times of the day by arrangement with management. The respondent also employed at least two cleaners who worked full-time either on cleaning duties or in the school canteen.

4. The claimant’s line manager was Mrs Una Ditaranto. The school administrator was a Mrs Katherine Fulton and the school principal was a Mrs McKeever.

5. The claimant was employed as a ‘floater’, ie she had no set area to clean within the school. If another cleaner was off sick or on annual leave, the claimant would be detailed to fill in for that cleaner and to cover that cleaner’s area of work. If no other cleaner was off sick or on annual leave, the claimant would clean the school corridors using a floor cleaning machine on which she had been specifically trained.

6. Mrs Ditaranto was responsible for checking overtime hours which had been worked by the part-time cleaners and for passing the necessary information to the school administrator for payment. That information was gathered on or about the 18^th day of each month and therefore the monthly pay at the end of each month would include the overtime worked up to (approximately) the 18^th day of that month. Overtime worked after the 18^th day of that month would be paid at the end of the following month.

7. In May 2009, President Mary McAleese visited the school and, in the period leading up to that visit, the cleaners were offered additional overtime to assist in the preparatory work. The claimant, together with several of her colleagues, did additional overtime during this period.

8. The claimant did not receive her correct overtime payment at the end of May and at the end of June 2009. The issue was not resolved until the end of July 2009 when the claimant received all the money that had been due to her. The claimant stated in evidence that she had provided a list of all her overtime hours to Mrs Ditaranto and that Mrs Ditaranto had ignored that list and had, in fact, denied ever receiving it. Mrs Ditaranto’s evidence was that she had not received the list and in any event, she had to verify overtime on the basis of the hours which had been recorded in the sign-in book. That was a book in which the cleaners signed in and out of the school premises, when starting and finishing work.

9. The tribunal concludes that it was entirely reasonable for Mrs Ditaranto to take the view that overtime should have been worked out on the basis of the sign-in book entries and not on the basis of any other document, whether or not that document had in fact been received. The tribunal also concludes that it has significant doubts about the claimant’s credibility in certain respects and that it prefers the evidence of Mrs Ditaranto. It therefore concludes that no document listing the claimant’s overtime hours had been provided by the claimant to Mrs Ditaranto as alleged.

10. The tribunal also concludes, and, it appears not to have been in dispute, that the claimant was not the only cleaner whose overtime payment had been delayed in this way. At least one other cleaner did not receive the correct payment for overtime until the end of July 2009. The tribunal heard, and accepted, clear and convincing evidence from Mrs Ditaranto and Mrs Colton to the effect that the incorrect initial payments and the delay in resolving the issue were due to a genuine administrative error and that both Mrs Ditaranto and Mrs Colton had apologised to the relevant staff and had made sure that the underpayment had been rectified as soon as possible.

11. The claimant was extremely annoyed at the late payment. She stated in evidence that she had been relying on the payment of this overtime and that she had told Mrs Ditaranto that she was not prepared to work any more overtime for the respondent. The claimant stated in evidence that she had changed her mind approximately one week later and had made that known to the respondent. She stated that she was denied overtime thereafter. That was not the evidence of Mrs Ditaranto or Mrs Colton. Furthermore, Mrs Yvette Lunny, a colleague of the claimant’s, gave evidence that the claimant had made it plain that she had not been prepared to work overtime and Mrs Lunny had been unaware of that situation changing. It was also clear that there were entries in the sign-in book for at least three occasions on which overtime was offered to all cleaners including the claimant. It is equally clear that certain cleaners signed against those entries to indicate their availability to work that overtime and equally clear that the claimant had not signed in that way. When it was put to the claimant in cross-examination that this was a clear instance of overtime having been offered to her and of her having declined the opportunity to work overtime, she stated, in relation to the first two entries in the sign-in book, that these were offers of overtime at the weekend and she would not work overtime at the weekend. When it was then pointed out to her that the third such entry referred to overtime on three weekdays, she had no explanation of why she had not accepted that offer of overtime.

12. Mrs Ditaranto’s evidence was that when the need for overtime was known in advance, ie where members of staff would be unavailable on holiday and could not be covered by floaters or where there was a particular event that needed to be dealt with, that overtime would be offered to all staff by way of a written entry in the sign-in book or by way of a post-it. Her evidence also was that where overtime became available at the last minute it would be offered to staff who she knew would be available and that this had included the claimant. It is perhaps significant that the claimant did not complain to Mrs Colton about not being offered overtime until June 2010.

13. The tribunal concludes therefore, on the balance of probabilities, that the claimant had made it plain in June or July 2009 that she was not going to work any more overtime for the respondent but that, despite that assertion, overtime continued to be offered to the claimant both as part of overtime offered to all staff and as individual amounts of overtime offered directly by Mrs Ditaranto to the claimant. In the event, the claimant refused all such offers of overtime.

14. The claimant had complained to Mrs Colton in March 2009 about the delay in the payment of overtime and she claimed that following that step, Mrs Ditaranto had changed her attitude towards her and had proceeded to check her excessively about lateness. The claimant described her complaint to Mrs Colton as ‘the turning point’. She alleged that Mrs Ditaranto had ‘changed’ and that thereafter Mrs Ditaranto was just ‘picking on’ her.

15. In particular, the claimant alleged that she had been directed by Mrs Ditaranto to sign the sign-in book with her exact time of arrival. She stated that this was not a requirement placed upon any other cleaner and that it was unjustified. She had been embarrassed doing so in front of her colleagues and had had to sign the book giving her time of arrival as 3.33 pm or 3.37 pm etc. Mrs Ditaranto gave evidence that the claimant had got progressively later in arriving at work and that she was regularly 10 – 15 minutes late. It was not in dispute by any party that the school alarms were set at 5.30 pm and that all cleaners had to be off the premises by 5.25 pm each day. This left a working period of slightly less than two hours and, in that context, lateness of 10 minutes appears to the tribunal to have been a significant issue. It therefore seems to the tribunal that if the claimant had indeed regularly attending 10 minutes late, a reasonable employer would have been entitled to take that matter seriously. Mrs Ditaranto’s evidence was supported by Mrs Lunny’s evidence who stated that the claimant was regularly the last person to sign-in and that she was frequently late. Mrs Lunny stated that the claimant would have regularly arrived at work at 3.40 pm rather than 3.30 pm as required. The tribunal therefore concludes that the claimant had a habit of arriving regularly late at work and that this was an issue which was properly brought to her attention by Mrs Ditaranto and indeed by Mrs Colton. However, no formal disciplinary action was taken against the claimant in this regard and her pay was not ‘docked’. Furthermore, when the sign-in book was put to the claimant in cross-examination and when she was asked to identify those dates on which she had had to sign in giving an exact time such as 3.33 pm or 3.37 pm, and when she had faced embarrassment in front of her colleagues, she was unable to do so. In fact there is only one entry in that sign-in book over a period of some six months which stated any time other than 3.30 pm. It is notable that in her examination-in-chief, the claimant was clear that this had happened on several occasions and that she felt humiliated in front of her colleagues. In cross-examination, the claimant was completely unable to put forward an explanation for the absence of any such entry in the sign-in book. The tribunal therefore concludes, on the balance of probabilities, that the claimant was not telling the truth during her examination-in-chief.

16. The claimant also stated in evidence that she had come to an arrangement with Mrs Ditaranto that if she came in a few minutes late she would stay on after 5.30 pm for a few minutes to make up the time. Given the clear and undisputed evidence to the effect that the school alarms were set at 5.30 pm and that all cleaning staff had to be off the premises at 5.25 pm, this evidence simply does not make sense.

17. The claimant’s evidence was that she had not been late to the extent alleged by Mrs Ditaranto and that she, on these occasions, had simply been unable to find Mrs Ditaranto to ascertain what her duties would be on that particular day. Mrs Ditaranto’s evidence, supported by Mrs Lunny’s evidence was that the claimant knew that she was a floater and that, if no specific duties had been assigned to her, to cover for a colleague, she was to spend her time cleaning the corridors with the floor cleaning machine. On that basis, their evidence was that the claimant did not need to check with Mrs Ditaranto each morning to seek instructions. The tribunal concludes, on the balance of probabilities, that this was the case and that while the claimant may have, for whatever reason, sought to have a discussion with Mrs Ditaranto at the start of each working day, there was no need for her to have done so.

18. The claimant referred to a particular incident in which she alleged that she had waited outside Mrs Ditaranto’s office and had then gone to look for her. She stated that Mrs Ditaranto had alleged that she had been in the office all along, that she had ‘lied’ and that she had not been ‘telling the truth’. The claimant stated that ‘I just never understood why it was a big deal – why a few minutes late mattered when then I would have to search the school for another 10 minutes for her (Mrs Ditaranto)’. On the following day, the claimant went to speak to Mrs Colton and told her that she wanted to resign. Mrs Colton asked her to re-consider her position. Shortly after that the claimant went on holiday.

19. After her return from holiday, the claimant lodged a grievance letter and a letter of resignation dated 25 June 2010. She stated “I’d like to quit because of the behaviour of my supervisor (Una Ditaranto)”.

20. The claimant’s contention was that Mrs Ditaranto had started to treat her badly following her complaint to Mrs Colton about the late payment of overtime, and that Mrs Ditaranto had picked on the claimant because she was allegedly coming into work late, that Mrs Ditaranto had threatened her with the loss of her job and that Mrs Ditaranto had lied about what she had said to her. The claimant accepted in evidence that, apart from the late payment of overtime in July 2009, she had never complained to Mrs Colton about Mrs Ditaranto before 15 June 2010.

21. The claimant also accepted in cross-examination that, during her holiday, she had gone to Wolverhampton where, on 25 May 2010, she had signed a tenancy agreement for a house in Wolverhampton and that that tenancy agreement was due to commence on 26 June 2010. The claimant also accepted that she had planned that move to England for at least one year and she stated that the reason for the move had been that she wanted to secure better educational opportunities for her daughter.

Relevant law

22. To succeed in a claim of constructive unfair dismissal, the claimant must establish:-

(i) that the respondent had committed a serious breach of contract entitling her to regard the contract as having been repudiated. In Brown v Merchant Forces Ltd [1988] IRLR 682, the Northern Ireland Court of Appeal said that, although the correct approach to constructive dismissal was to ask whether the employer was in breach of contract and not whether the employer had acted unreasonably, if the employer’s conduct is seriously unreasonable, that may provide sufficient evidence that there has been a breach of contract;

(ii) that she left her employment as a cleaner with the respondent because of that breach of contract.

Decision

23. The claim must fail on two grounds. Firstly, there is no evidence that the respondent was in serious breach of its contract with the claimant. It is clear that the claimant had been regularly late in arriving for work and that she had been spoken to by both Mrs Ditaranto and Mrs Colton about her lateness. Her pay had not been docked and there had been no formal disciplinary action. It is equally clear that the claimant had refused to do overtime following the late payment of overtime pay for May and June 2009. Overtime had subsequently been offered to her and had not been accepted by her. There is no evidence of any behaviour on the part of the respondent which would have entitled the claimant to conclude that her contract of employment had been repudiated.

24. Secondly, the claimant has not shown that she resigned because of any alleged breach of contract. Her evidence was quite clear that the move to Wolverhampton had been planned for one year and that a lease on a house in Wolverhampton had been signed one month before her resignation, to commence one day after her resignation. Furthermore, her evidence was that the move was planned because of her desire to maximise educational opportunities for her daughter and not for any reason connected with her work for the respondent.

25. The claim of constructive unfair dismissal is therefore dismissed.

Chairman:

Date and place of hearing: 23 February 2011, Belfast

Date decision recorded in register and issued to parties: