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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> O'Neill v University of Ulster [2012] NIIT 00688_12IT (18 July 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/688_12IT.html
Cite as: [2012] NIIT 688_12IT, [2012] NIIT 00688_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 688/12
CLAIMANT: Ian O’Neill
RESPONDENT: University of Ulster
DECISION
The decision of the tribunal is that the claimant was not contractually entitled to 12 weeks’ notice of termination of employment or 12 weeks’ pay in lieu of such notice. That part of the claim is dismissed. However, the claimant was entitled to payment in respect of 10 additional days’ untaken leave. The claimant is awarded £1,213.88.
Constitution of Tribunal:
Vice President (sitting alone): N Kelly
Appearances:
The claimant appeared in person and was unrepresented.
The respondent was represented by Mr Mulqueen, Barrister-at-Law, instructed by Mr O McCullough of the respondent’s Legal Service.
Background
1. The claimant had been employed by the respondent as a Sports Service Manager. He applied for and was granted voluntary enhanced redundancy. His employment was terminated on 20 January 2012.
Issues
2. There were two separate issues to be determined by the tribunal:-
(i) Whether the claimant had been contractually entitled to three months’ notice or three months’ pay in lieu of such notice on the termination of his employment on 20 January 2012?
(ii) Whether the claimant, on the termination of his employment, had been contractually entitled to payment for 10 days’ untaken annual leave which had accumulated before the current leave year?
Hearing
3. The claim was heard on 6 July 2012. The claimant gave evidence and called as witnesses two members of the University’s staff. They were Ms Kelly McBride from the University’s Human Resources Department and Mr Oliver McCullough of the University’s Administration and Legal Service.
4. The claimant wanted to call additional witnesses but these witnesses were disallowed as irrelevant to the issues to be determined. He wanted to call one witness to establish that the University had not provided him with a copy of the voluntary redundancy procedure. That was a matter which did not appear to be in dispute and in any event was completely irrelevant to the issues. The claimant argued in this respect that he had been unaware of the 12 week notice provision because he had not been given the voluntary redundancy procedure. He was unable to say that the voluntary redundancy procedure contained any provision in relation to notice pay and that did not appear to be the case being made on behalf of the respondent. Furthermore, it was abundantly clear that the 12 week notice provision on which he proposed to rely was contained in his initial written contract and statement of terms and conditions which he had signed on the commencement of his employment and to which he had had access at all relevant times. He further wanted to call witnesses to establish that he had expressed unwillingness to other parties to leave employment on 20 January 2012. In response to a direct question from me, he confirmed that none of these proposed witnesses could give any evidence in relation to his meetings with Ms Kelly McBride of the University’s Human Resources Department and could give no evidence in relation to the discussions which took place between the claimant and the respondent in this respect. Whether or not the claimant expressed any opinion or any statement of intent to third parties would not have any significant probative value in relation to the issues to be determined by me and therefore those additional witnesses were disallowed.
5. Mr Mulqueen called no further witnesses on behalf of the respondent.
6. After the conclusion of the oral evidence, I rose for one hour to allow the parties to prepare final submissions and both parties gave those final submissions orally.
Relevant findings of Fact – Notice Pay
7. The respondent, like the rest of the public sector, was engaged in a programme of restructuring and cost cutting in 2011 and 2012.
8. At a meeting on 30 June 2011, staff in the Sports and Recreation Department, including the claimant, were advised that there were likely to be staff efficiencies within that Department and that it was also likely that the structures of the Department would change.
9. At a further meeting on 23 November 2011, to discuss the restructuring of the Department, Mr P Donnelly, the University’s Director of Physical Resources, described the financial problems facing the respondent and outlined a process in which a new structure would be agreed, in which redundant posts would be identified, and in which staff could then, at that later stage, apply for voluntary redundancy packages before a formal redundancy selection process began.
10. The claimant had been aware of potential redundancies and had already started looking for alternative work. He had applied for a post in Ards Borough Council in October 2011 before the meeting described above took place on 23 November 2011.
11. On or about 23 December 2011, the claimant was offered the post in Ards Borough Council for which he had earlier applied, subject to references and a medical. These were obviously satisfactory because the claimant was then formally offered the post in Ards Borough Council on 11 January 2012.
12. The post in Ards was at a lower salary and involved increased travelling time. These matters have to be weighed in the balance and set against the enhanced voluntary redundancy payment of just under £20,000 received by the claimant from the respondent.
13. When the claimant returned to work after the Christmas break on 3 January 2012, he e-mailed Ms Kelly McBride in the respondent’s Human Resources Department asking for a meeting “to discuss my options”.
14. The claimant and Ms McBride met on 4 January 2012. He was told that if he were to be successful in an application for voluntary enhanced redundancy, he would receive £19,976, depending on his exact departure date.
15. The claimant e-mailed Ms McBride on 5 January 2012 indicating that he wished to apply for the voluntary enhanced redundancy package and indicating a proposed departure date of 29 February 2012. Ms McBride forwarded that request to Mr Ronnie Magee, the Director of Human Resources in the respondent’s organisation and Mr Donnelly for consideration.
16. Ms McBride met Mr Magee and Mr Donnelly on 13 January 2012. She then arranged to meet the claimant in her office. Ms McBride told him that his post had not yet been identified as redundant, that someone would have to act up in his place but that his application for voluntary redundancy had been successful. At that point the evidence of Ms McBride and the claimant diverged. The claimant stated that he was given in effect an ultimatum that he would have to go that day. Ms McBride’s evidence, which on balance I prefer, was that it was made plain to him that he could leave that day if his personal circumstances permitted.
17. The claimant gave Ms McBride his mobile telephone number and asked her to discuss the matter further with Mr Magee and Mr Donnelly and to contact him that same day i.e. 13 January 2012 with a final decision on the departure date. Ms Donnelly’s evidence was that the claimant had himself suggested a departure date of 20 January 2011 as an alternative. The claimant denied this. However, it seems clear that the claimant had objected to 13 January 2012 departure date on the basis that he had diary commitments for the following week. It is therefore more likely than not that the claimant had either expressly or implicitly put forward a week’s delay as an alternative.
18. In any event Ms McBride had further discussions with Mr Magee and Mr Donnelly. She telephoned the claimant later that same day to say that his application for voluntary enhanced redundancy with a departure date of 20 January 2012 had been approved. The claimant then received an e-mail from a Ms Rhona Reid on behalf of Ms McBride enclosing a voluntary redundancy letter and calculations. It stated:-
“Further to your correspondence requesting to be considered for voluntary redundancy, I am writing to advise that your request has been granted. I would confirm that your employment with the University will therefore terminate as agreed on these grounds with effect from 20 January 2012.”
19. Ms McBride then met the claimant in his office later on 13 January 2012. She gave him a letter which was in similar terms to the letter quoted above and which read:-
“Further to your correspondence requesting to be considered for voluntary redundancy, I am writing to advise that your request has been granted. I would confirm following our conversation today that your request to receive a voluntary redundancy package (attached) and to end your employment on 20 January 2012 has been approved.”
20. The claimant argued that the wording of those two letters was significantly different and that this was a mater going to the integrity of the process. I have read these two letters several times and I can find no difference of any significance. It does not seem to matter to me that the later letter states that it was the claimant’s request to end employment on 20 January 2012 and that the earlier letter states that that date will be the termination date “as agreed”.
21. In any event the claimant accepts that he read the later letter and that he then signed it. Ms McBride gave evidence that she went through the letter with the claimant and that she had highlighted in her own copy the reference to the departure date so that she could explain it fully to him.
22. The claimant left employment with the University of Ulster on Friday 20 January 2012 and started employment with Ards Borough Council on Monday 23 January 2012.
Contentions of the parties – Notice Pay
23. The claimant argued that he had not agreed to leave employment with the respondent on 20 January 2012. He stated that he had in fact no choice in this respect. He argued that he had been entitled to three months’ notice under his contract. That contract stated:-
“The length of notice required from either party to terminate employment is three months.”
The claimant stated that he had not been aware of that provision and it was the failure of the respondent to provide him with a copy of the voluntary redundancy scheme that meant that he had been unaware of the notice provision.
24. The respondent argued that the redundancy process had not yet got properly underway. The claimant had secured alternative employment with Ards Borough Council and wanted to leave his employment with the respondent. The claimant had sought out that alternative employment at a very early stage and had then asked for voluntary enhanced redundancy before redundant posts had been identified and before staff in his department had been asked to consider applying for voluntary enhanced redundancy. The termination of his employment and the date of that termination had been agreed between the parties in the context of an enhanced voluntary redundancy package. Therefore the termination had been a consensual termination. Neither party had unilaterally ended the employment by dismissal or by resignation, in a way that would have triggered the notice requirement.
Decision – notice pay
25. Under the claimant’s contract of employment three months’ notice is required if either party terminates the contract. As a matter of commonsense, there is no requirement for one party to give the other party notice of termination if the termination and the date of termination are agreed between those parties in the context of an enhanced voluntary redundancy package or in any other context.
26. I have concluded, on the balance of probabilities, that the claimant, when faced with the initial response to his request for voluntary enhanced redundancy put forward a departure date of 20 January 2012. It is also clear that the claimant had been aware that 20 January 2012 was going to be his departure date before he accepted the enhanced voluntary redundancy offer. It is equally clear that he had read and signed the later letter of 13 January 2012 which expressly indicated that the departure date had been agreed. As I have indicated above, the earlier letter of 13 January 2012 also indicated in what to me are perfectly plain terms, that there had been an agreement between the parties as to the termination and as to the termination date. I do not accept that the claimant was “forced” to accept 20 January 2012 as a departure date or that he had “no choice” in the matter. The redundancy process was then at a very early stage in relation to his department and he was under no immediate pressure from the respondent to leave. His post had not been identified as redundant and he had not been invited to apply for voluntary redundancy. His application for voluntary enhanced redundancy had been entirely his own initiative.
27. The claimant accepted the departure date of 20 January 2012 and, on the balance of probabilities, it is my view that he did so because he had already accepted employment with Ards Borough Council and because that employment would start immediately after 20 January.
28. I am therefore satisfied that this was a case where there was a consensual termination of employment on 20 January 2012 in the context of an enhanced voluntary redundancy package. On that basis, there was no contractual entitlement to three months’ notice and no contractual entitlement to three months pay in lieu of such notice. That part of the claim is therefore dismissed.
Findings of fact – holiday pay
29. The claimant’s written contract of employment provided that:-
“Up to five unused days of annual leave may be carried forward to the next year provided that management is notified in writing prior to the end of the leave year. Such carryover shall not be cumulative. “
30. That appears to have been slightly amended in a further document to which I was referred which provides:-
“Staff with defined days of annual leave are entitled to carry over five days from one leave year to the next (non cumulative). In certain exceptional circumstances up to ten days will be carried over with the approval of their line manager.”
31. On 14 March 2006, Mr McCullough, in his capacity as Head of Legal and Administrative Services stated in a circular that:-
“Managers are reminded that all staff should be encouraged to take their leave each academic year. They can carry a maximum of five days, ten only in exceptional circumstances and agreed by HR.
32. On 20 January 2012, the date of the claimant’s termination, he was entitled to, pro rata, 23 days in that leave year. The respondent added to that what they regarded as the maximum 10 days’ leave permitted to be carried over which made a total of 33 days. From that figure, the respondent deducted 26.5 days leave already taken in that leave year which left a balance of 6.5 days. The claimant was reimbursed by the respondent in respect of those 6.5 days.
33. In unchallenged evidence, the claimant stated that he had accumulated, with the express permission of his line manager, an additional 10 days’ annual leave which had not been paid for. It was common case that the respondent had refused to pay for those 10 additional days of annual leave not taken because it exceeded what the respondent regarded as the maximum of 10 days applicable even in exceptional circumstances.
34 .Since the evidence from the claimant, to the effect that his line manager had expressly approved the carry over of such leave and that the carry over of such leave occurred in relation to work requirements, the question of a variation in the general terms and conditions of service arises.
35. Contracts of employment are not written in stone. They can be relatively fluid and can be altered by custom and practice or by express agreement between the parties. Given the way in which the claimant’s leave had been dealt with in 2009/10 and 2010/11, it seems to me clear that the claimant’s line manager had varied the claimant’s terms and conditions of service in this respect. It does not seem to me to be at all likely that the claimant would have willingly waived his contractual right to annual leave (or payment in lieu of annual leave). I therefore conclude that whatever was expressly contained within the original written contract or in the separate document to which I was referred or indeed in Mr McCullough’s circular in 2006, the position in 2011 was that the claimant had agreed with the respondent’s representative, in the person of his line manager, that he would be permitted, for work related reasons in specific circumstances to carry over an additional 10 days’ leave and that that carry over would be cumulative. The request to carry over leave appears to have been made in good faith and for work-related reasons. The claimant’s line manager clearly consented to the carry over of such annual leave in excess of 5 or 10 days in both 2009/2010 and 2010/2011. He could have refused to do so and could have insisted on the maximum of 10 days; he did not do so. I therefore conclude that the claimant and his line manager had agreed a variation in his contract and that the respondent, in failing to pay for the additional 10 days, was in breach of that contract,
36. I therefore conclude that the claimant is entitled to compensation in respect of that breach of contract. That compensation is at the nett rate of pay for 10 days.
37. The calculation therefore is:-
£2,629 nett monthly pay x 12 = £31,548 nett annual pay
Nett annual pay divided by 52 = £606.69 nett weekly pay
Compensation due = 2 weeks nett weekly pay = £1,213.38
38. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Vice President:
Date and place of hearing: 5 July 2012, Belfast
Date decision recorded in register and issued to parties: