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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Johnston v Laura Fegan, t/a Home from Hom... [2012] NIIT 00347_12IT (19 July 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/347_12IT.html
Cite as: [2012] NIIT 00347_12IT, [2012] NIIT 347_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 347/12
CLAIMANT: Wendy Johnston
RESPONDENT: Laura Fegan, t/a Home from Home Daycare
DECISION
The unanimous decision of the tribunal is that the claim in so far as it relates to unfair dismissal is dismissed.
In respect of the claim as it relates to breach of contract the tribunal notes the respondent’s acceptance that the claimant is entitled to the sum of £49.00 in respect of payment for uniforms purchased by her and the sum of £432.00 in respect of payment due for her attendance at a training course. Accordingly the tribunal orders the payment of these amounts.
Constitution of Tribunal
Chairman: Mrs A Wilson
Members: Mr J McKeown
Ms M Mulligan
Appearances:
The claimant was represented by Mr Malachy McGowan, Barrister-at-Law, instructed by Gordon Bell and Son, Solicitors.
Ms Laura Fegan appeared in person and was unrepresented.
Background
1. The respondent operates the business of a day care nursery providing childcare services in Dundrum, Co Down. Ms Laura Fegan is the owner of that business.
2. The claimant was employed by the respondent from 20 July 2009 until 31 January 2012. She was employed as a duty manager working full time until in or around early January 2012 when her hours were reduced and her duties changed by reason of financial pressures affecting the business.
3. The claimant and Ms Fegan enjoyed a personal friendship. Ms Fegan relied on the claimant for emotional support during periods of stress caused by her considerable financial difficulties and treated her as a confidante. Ms Fegan held and continues to hold the claimant in high esteem. She regarded her as an excellent worker and a very valued member of staff and the tribunal accepts that she was sorry to lose her.
4. When her hours were reduced the claimant accepted that reduction but made it clear to Ms Fegan that she needed full time employment. Ms Fegan indicated that she was hopeful that the new arrangements in terms of reduced hours would prove to be a short term measure and was hopeful that the claimant would have extra hours in or around March 2012 due to anticipated staff absences.
5. In or around the end of January 2012, Ms Fegan was approached by a friend whose brother was about to open a day care nursery along similar lines to her own in Downpatrick. She (Ms Fegan) was asked whether she knew of anybody who might be interested in the position of duty care manager as a duty care manager was urgently required to progress official approval for the opening of the nursery.
6. Ms Fegan mentioned the opportunity to the claimant and enquired whether she would be interested in the position. The claimant said she would think about it.
7. Against this background it is the respondent's case that Ms Fegan rang the claimant on the evening of 31 January 2012 to enquire whether she [Ms Fegan] could pass her telephone number to her friend and that she was given permission to do so during a brief telephone conversation .
8. It is the claimant's case that Ms Fegan telephoned her on the evening of 31 January and told her that she was “dismissed with immediate effect” and when asked for a reason was told "you know the reason".
9. The claimant did not return to work after 31 January 2012. Ms Fegan made numerous attempts to contact the claimant during the following days but her calls were not answered. She subsequently received a request for a reference from a prospective employer which she declined to give until such time as she had the claimant’s authority in writing to do so.
The Issues
10. (i) Was the claimant dismissed by the respondent?
(ii) If the claimant was dismissed what was the reason for dismissal and was it a potentially fair reason within the meaning of Article 130 of the Employment Rights (Northern Ireland) 1996?
(iii) If the claimant was dismissed was the dismissal fair in all the circumstances of the case (including the circumstances pertaining to the statutory procedures)?
(iv) If the claimant was unfairly dismissed what compensation (if any) is payable?
11. The tribunal considered the notice of claim, the response, documents handed in and referred to by the parties during the course of the hearing, the sworn testimony of the claimant and of Ms Fegan and the submissions of both parties.
12. In circumstances where there is a clear divergence between the parties as to what occurred during the telephone conversation on 31 January 2012, it is for the tribunal to decide which version of events is to be preferred. The tribunal must decide this on the balance of probabilities.
13. The tribunal considered the claimant's evidence, the manner in which it was presented and her demeanor whilst testifying.
14. The tribunal found the claimant to be vague in her evidence. By way of example when asked whether she had been looking for jobs online during rest breaks whilst in the employment of Ms Fegan she replied "I cannot honestly remember". When asked whether she told a member of staff that there may not be a nursery after Christmas, she replied "I honestly do not remember". When asked whether she had told a named member of staff to “look for other work” and whether she said that she herself was “looking for other work", she replied "I honestly cannot remember".
15. The questions which elicited these responses from the claimant related to events which occurred in or around December 2011 and January 2012 and which were of major significance in the claimant's life. In these circumstances the tribunal struggle to accept that the claimant could not remember so many crucial conversations and events.
16. The claimant gave evidence that she was assured by Ms Fegan in or about January 2012 that she [Ms Fegan] did not want her [the claimant] to feel undermined or undervalued by the change to her working pattern and role. The claimant accepted during cross examination that Ms Fegan would have been acting out of character in telling her that her employment was terminated with immediate effect in the manner alleged.
17. The claimant did not pursue the job opportunity in Downpatrick. It was her evidence that she chose not to do so because she was fearful that it would involve contact with Ms Fegan which she would prefer not to have in circumstances where she no longer trusted Ms Fegan. The tribunal did not accept this as credible in light of the evidence recited at paragraph 16 and in the absence of evidence of any circumstances which could or did lead to the claimant losing trust in Ms Fegan.
18. The tribunal considered Ms Fegan’s evidence, the manner in which it was presented and her demeanor whilst testifying.
19. The tribunal found Ms Fegan to be direct, consistent and straightforward in her evidence.
20. The tribunal accepts that Ms Fegan was genuine in her regard for the claimant both as an employee and as a friend. The tribunal finds that she felt genuine loyalty towards the claimant, that she reluctantly reduced her hours and that she was sorry to lose her. In making this finding the tribunal accepts that Ms Fegan relied upon the claimant as a confidante in time of stress, that she regarded her and continues to regard her highly as an employee and a professional and that she recommended her to a competitor for the duty manager post in Downpatrick.
21. The tribunal was invited to infer bad faith on the part of Ms Fegan in insisting on having the written authority of the claimant before providing a reference to a prospective employer (see paragraph 9). The tribunal does not accept that this was the case. The tribunal considered this point in the context of the evidence as a whole and in particular Ms Fegan’s diligence in obtaining the claimant's consent before passing her contact details in connection with the Downpatrick job. Taking these factors into account the tribunal finds that Ms Fegan was consistently punctilious in her professional dealings and committed to following proper procedures.
22. The tribunal considered undisputed evidence that Ms Fegan dismissed an employee in the past and that she relied heavily upon advice from the Small Business Federation in connection with the proper procedures to be followed. The tribunal find from the evidence generally that Ms Fegan relied upon advice from the Small Business Federation in connection with personnel matters generally and taking this into account together with the findings at paragraph 21, find on the balance of probabilities that had Ms Fegan intended to dismiss the claimant she would have sought their advice and followed correct procedures.
23. The tribunal heard evidence of some bad feeling between the parties in the weeks prior to 31 January 2012 and in particular evidence that Ms Fegan had accused the claimant of stirring things up with other staff. The tribunal finds that on the balance of probabilities that relationships between the parties were not at their best during this period. However the tribunal is not satisfied that relationships had deteriorated to the point that the claimant had lost trust in Ms Fegan or that Ms Fegan wished to dismiss the claimant.
24. Having carefully considered and evaluated the evidence and for reasons given above the tribunal accepts Ms Fegan’s account of the telephone conversation on 31 January 2012. The tribunal is satisfied that it would have been out of character for Ms Fegan to behave as alleged and indeed this is accepted by the claimant (see paragraph 16). The tribunal is satisfied that Ms Fegan did not tell the claimant that she was “dismissed with immediate effect”.
25. The unanimous decision of the tribunal is that the claimant was not dismissed as alleged or at all.
Chairman:
Date and place of hearing: 19 June 2012, Belfast.
Date decision recorded in register and issued to parties: