Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   1023/14

 

 

 

CLAIMANT:                      Adele Francis Trainor

 

 

RESPONDENT:                PDN Daycare Ltd

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was not dismissed from her employment.  The claims for unfair dismissal and statutory redundancy payment are therefore dismissed.

 

Constitution of Tribunal:

Vice President:                Mr N Kelly

Members:                        Mr I O’Hea

                                        Mr B Heaney

 

Appearances:

The claimant was represented by Mr J Campbell, Solicitor, of Campbell Bates & Company, Solicitors.

The respondent was represented by Mrs M Martin.

 

1.       This is a claim of unfair dismissal and, in the alternative, for statutory redundancy payment.  The claimant had been employed as a childcare worker in the respondent’s nursery.

 

2.       The first issue to be determined in this case is:-

 

“Whether the claimant had been dismissed or whether the claimant had resigned from her employment.”

 

The claimant alleges she had been dismissed.  The respondent alleges that the claimant had resigned on four weeks’ notice given on 12 February 2014 and that the claimant had taken four days’ holiday pay to complete that notice period. 

 

The hearing

 

3.       The tribunal heard evidence from the claimant and from Mrs Martin. 

 

The law

 

4.       The Employment Rights (Northern Ireland) Order 1996 provides for claims for a statutory redundancy payment or of unfair dismissal.  The claimant must have been dismissed before making either claim.

 

Relevant findings of fact

 

5.       The claimant was first employed on a standard employment contract from 27 June 2012 that lasted for one year.  Work was reducing in the nursery at that point and Mrs Martin offer the claimant the possibility of working on an apprenticeship contract to obtain a childcare qualification.  That was presented as an alternative to a possible termination. 

 

6.       The claimant signed the apprenticeship contract on 28 June 2013.  The claimant continued working under the terms of that contract with evening classes from Rutledge Training until she left her employment at the start of April 2014. 

 

7.       The claimant met Mrs Martin on 14 February 2014 and on that date gave Mrs Martin four weeks’ notice of termination.  Four days of holiday used up her accumulated holiday entitlement. 

 

8.       The respondent wrote to the claimant on 4 April 2014.  The letter enclosed pay-slips for February and March 2014.  It also returned the claimant’s sick lines which were needed by the claimant to claim Social Security benefits.  The letter did not refer specifically to four weeks’ notice having been given by the claimant to terminate her employment.  However the letter was not inconsistent with that notice having been given in the circumstances of this case. 

 

Credibility

 

9.       The evidence given by Mrs Martin on behalf of the respondent was clear, consistent and credible.  The tribunal accepts that evidence as correct.

 

10.     The credibility of the claimant was open to question:-

 

(i)       The claimant had signed the apprenticeship contract on 28 June 2013. The unrebutted evidence of Mrs Martin was that the claimant had been given adequate time to read the contract before signing it and that the claimant had been given a signed copy to retain.  That contractual document made it absolutely plain that the hourly apprenticeship rate was £2.68.  Mrs Martin again gave unrebutted evidence that a representative from Rutledge Training had explained the terms of the apprenticeship contract to both the claimant and to another employee.  The claimant nevertheless maintained that neither she nor her colleague knew of the reduction in the hourly rate from approximately £6.30 to £2.68 until they received the pay-slips for their July pay.  The evidence from the claimant that neither she nor her colleague had complained about this massive reduction in pay or had even queried it until an unspecified date in September 2013.  That evidence is simply not credible.  No one who had genuinely been misled about the position and had genuinely not realised that their pay would be reduced to less than one half of the original pay would have failed to complain or would have failed to have even raised a query for more than two months.  Furthermore, there is absolutely no documentary or independent evidence that any complaint or query was ever raised by the claimant even at that much later stage in September 2013.  It is notable that no complaint about having been misled or tricked about her pay rate was raised by the claimant in her claim form, which was lodged at a much later stage. 

 

(ii)      The claimant’s evidence in relation to requests from potential employers for references during her employment with the respondent was both inconsistent and unconvincing.  The claimant first stated in evidence that there had been one request for such a reference from Silver Birch, an elderly care home.  Later in evidence that was accepted to be three requests from three residential homes for the elderly.  That evidence became that there had been two such requests and then that was changed shortly to three such requests.  The evidence then was that one of the requests was from a childcare facility and one other request for a reference was from a mixed childcare and elderly care facility where the claimant was seeking employment in the childcare part of the facility. 

 

          The claimant failed to put forward any coherent or consistent account of events and the tribunal concludes that the claimant at an early stage in her employment under the apprenticeship contract had decided to leave childcare work and to look for elderly care work. 

 

(iii)      The claimant’s case depended on her assertion that Mrs Martin was lying about notice having been given on 12 February 2014 and also the claimant’s assertion that either Mr Nixon of Rutledge Training was lying when he stated in an e-mail that both the claimant and the claimant’s mother had told him that she did not want to pursue her apprenticeship course or, alternatively, that that e-mail from Mr Nixon had been falsified (forged).  That evidence is simply not credible. 

 

10.     The tribunal concludes, on the balance of probabilities, that the claimant had, as alleged by Mrs Martin, resigned on four weeks’ notice given on 12 February 2014. 

 

          It may indeed have been the case that the claimant might have eventually qualified for a statutory redundancy payment if she had remained in employment until she had actually been made redundant.  However, the claimant did not wait for that to occur.  She resigned first.

 

11.     There was no dismissal and therefore there can be no entitlement to unfair dismissal compensation or to any statutory redundancy payment.  The claims are therefore dismissed.

 

 

 

 

 

 

 

Vice President

 

 

Date and place of hearing:         1 October 2014, Belfast

 

 

Date decision recorded in register and issued to parties: