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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Curran v Dental World Ltd [2012] NIIT 02780_11IT (08 June 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/2780_11IT.html
Cite as: [2012] NIIT 02780_11IT, [2012] NIIT 2780_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2780/11
CLAIMANT: Karen Curran
RESPONDENT: Dental World Ltd
DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed. The unanimous decision of the tribunal is that the claimant is entitled to a payment of £468.00 in respect of two week’s unpaid wages. Mr Robert McMitchell is dismissed from the proceedings as Dental World Ltd was the correct employer of the claimant.
Constitution of the Tribunal
Chairman: Ms F Oliver
Members: Mr J McAuley
Mr B Hanna
Appearances
The claimant appeared and was represented by Mr David McKeown BL, instructed by Messrs Joe Mulholland & Co solicitors.
The respondent was represented by Mr G Hyland of Messrs Hyland solicitors.
Sources of Evidence
1. The tribunal heard evidence from the claimant and from Ms Joanne Ferguson the dental practice manager with the respondent. The tribunal also considered the claim form, the response and the letter of resignation from the claimant.
The Claim and the Defence
2. The claimant claimed unfair constructive dismissal and unpaid wages for a period of two weeks. The respondent denied that the claimant had been constructively dismissed.
Issues
3. The tribunal was referred to the events of 19 October 2011 and was asked to determine if the claimant had established that she had been dismissed as the result of the events of that day.
Analysis of the evidence
4. It was accepted that the case turned on the events of 19 October 2011 and indeed there was much agreement between the two parties who gave evidence as to the sequence of events.
5. The disputed evidence centres on whether the claimant was simply told that she had two options, one being to remain in employment and face the consequences of a disciplinary procedure and the other being to resign or whether when faced with the prospect of disciplinary action the claimant decided to resign and avoid any adverse publicity and stress.
6. We have to look at the position as it was on 19 October 2011 and not how it now appears to the claimant.
Findings of Fact
7. The claimant commenced employment as an employee of the respondent on 31 August 2010 and she resigned on 19 October 2011.
8. The claimant started employment as a dental receptionist and then became a trainee dental nurse. The claimant said she was happy in the practice and felt that she was quite good at her job.
9. In October 2011 the claimant was informed that the practice manager Joanne Ferguson wanted to meet with her and a meeting took place on 19 October 2011 with Joanne Ferguson, Linda, another manager and the claimant present. Ms Ferguson informed the claimant that there were some discrepancies on the timesheets submitted by the claimant and she asked the claimant for an explanation. According to Miss Ferguson, the claimant indicated that she had forgotten about the days she had claimed for as she had submitted them earlier and the implication was that she had forgotten to amend the timesheets when the work did not go ahead. She apologised for this and the meeting ended. Miss Ferguson explained that errors in the timesheet which lead to an overpayment of wages could be viewed as gross misconduct.
10. Miss Ferguson explained to the claimant that she would speak to Mr McMitchell, the owner of the business, and would let her know what was to happen.
11. Miss Ferguson spoke to Mr McMitchell and to the business legal advisers during the afternoon of 19 October and then phoned to speak to the claimant.
12. It is common ground that a telephone conversation took place between Miss Ferguson and the claimant and at the end of the conversation, the claimant handed in written notice of her resignation. The letter from the claimant is very short and simply states:
“I Karen Curran am handing in my notice from today 19 October 2011 at Dental World.”
13. The claimant says that when Miss Ferguson phoned her to tell her of the position being taken by Mr McMitchell, she was informed that she could either face charges of fraud, with the likelihood of being blacklisted and finding it hard to get alternative employment or she could hand in her notice. The claimant said she was not given time to consider her position and had to give an answer straight away. She was told that Mr McMitchell would not wait for an answer. The claimant decided to hand in her notice as she felt under stress.
14. Miss Ferguson on the other hand indicated that when she spoke to the claimant, her purpose was to let the claimant know that she was being suspended pending further investigation of the position on the timesheets. She advised the claimant that Mr McMitchell was not willing to let the matter drop with an apology and wanted it to be investigated. Miss Ferguson told the tribunal that the claimant repeated that she was sorry for the incorrect timesheets and asked if Mr McMitchell would reconsider. When she was advised that he wouldn’t the claimant then asked if the matter would be dropped if she handed in her notice and Miss Ferguson said that it would. The claimant asked if she could think about it overnight but was told that that wasn’t possible. It was agreed that the claimant would speak to her husband on the phone and would let Miss Ferguson know her decision. After speaking to her husband the claimant handed in her notice.
15. The respondent argues that that this was a rational decision taken by the claimant to avoid an unwanted investigation into her timesheets.
16. The claimant accepted that Miss Ferguson was sympathetic on the phone. In cross examination the claimant accepted that she had been told that she would be suspended until the respondents decided what way they were going to go with any disciplinary proceedings.
17. Miss Ferguson accepted that she did not tell the claimant that she would be suspended on full pay to enable the investigation to be carried out.
18. We accept the claimant’s evidence that she did not receive payment for two weeks’ wages to which she was entitled. The respondent did not actively dispute the claimant’s claim to two weeks pay but nor did it accept that such sum was due.
The Law
19. Article 126 of the Employment Rights (Northern Ireland) Order 1996 gives an employee the right not to be unfairly dismissed.
Article 127 of the 1996 Order provides:-
“(1) For the purpose of this part an employee is dismissed by his employer if ...
(c) 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”.
This is commonly known as constructive dismissal.
20. In order for the employee to be able to claim constructive dismissal, four conditions must be met:
1. There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.
2. That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving.
3. He must leave in response to the breach and not for some other, unconnected reason.
4. He must not delay too long in terminating the contract in response to the employer's breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.
21. The following propositions of law can be derived from the authorities:-
1. The test for constructive dismissal is whether the employer’s action or conduct amounted to a repudiatory breach of the contract of employment:-
Western Excavating (ECC) Ltd v Sharpe [1978] I QB 761
2. It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or serious damage the relationship of confidence and trust between employer and employee:-
Malik v BCCI [1998] AC 20. This is often referred to as the implied term of trust and confidence.
Article 45 of the Employment Rights (Northern Ireland) Order 1996 gives an employee the right not to suffer unauthorised deductions from wages.
Application of the Law and Findings of fact to the Issues
22. The tribunal was satisfied that the respondent was entitled to investigate the matter of the incorrect timesheets. These were serious allegations against the claimant and it was appropriate to suspend her on full pay. It is unfortunate that the claimant was not made aware at the outset that she would still receive full pay but we did not feel that this vitiated the handling of the incident.
23. The tribunal was not satisfied that there had been a fundamental breach of contract entitling the claimant to resign. We did not believe that there had been a breach of the implied term of trust and confidence. If there was no fundamental breach of contract either express or implied then the claimant’s claim of constructive dismissal must fail.
24. We find that the reason the claimant resigned was that she was not prepared to take the risk that investigations would show up that her timesheets had been completed in a fraudulent manner. She weighed up all the options and she decided that the advantages of leaving before the disciplinary process commenced outweighed the disadvantages. That may have been a reasonable decision for her to make but it does not in our minds lead to a finding of constructive dismissal.
Unfair dismissal
25. The tribunal concludes that the claimant was not unfairly dismissed from her employment.
Unauthorised deductions
26. We accept the claimant’s evidence that she did not receive wages for two weeks to which she was entitled. The tribunal finds that the claimant is entitled to be reimbursed for two weeks wages amounting to £468.00.
27. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 13 March 2012, Belfast.
Date decision recorded in register and issued to parties: