Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1741/16

 

 

 

CLAIMANT: Alison Barry

 

 

RESPONDENT: Martha Davis, t/a Mattie's Meeting House

 

 

DECISION

The claimant's claim for unfair dismissal is dismissed.

The Tribunal ordered the respondent to pay the claimant the sum of £201.60 ( £230.40 less overpaid holiday pay of £28.80) in respect of her failure to provide the claimant with a Statement of Written Particulars.

 

 

Constitution of Tribunal:

Employment Judge: Employment Judge Sheils

 

 

Members: Ms M Mulligan

Mrs F Cummins

 

Appearances:

The claimant appeared in person and represented herself.

The respondent appeared in person and represented herself.

The Claim

 

1.             The claimant Alison Barry commenced employment in October 2014 as a bar worker in Mattie's Meeting House. She was employed by the owner, the respondent, Martha Davis up until 23 July 2016.

 

2.             The claimant maintained that on the night of 23 July 2016 and after an argument between herself and the respondent, the respondent told her to leave the premises and not to come back. From this the claimant concluded that she had been dismissed and therefore in the circumstances that she had been unfairly dismissed.

 

3.             For her part, the respondent stated that the claimant had thrown down her keys and had walked out before the end of her shift and as she had not reported for her shift the next morning, the respondent concluded that the claimant had resigned.

 

Factual Background

 

4.             On the night of 23 July 2016, the claimant was working a shift which was due to end at 2.00 am. The respondent had been off duty and had been out at a party from
8.00 pm that evening and had returned to the pub where she continued drinking. The respondent indicated that she had consumed only 4-5 drinks but did not deny that she had been drunk on the night in question.

 

5.             Thereafter there was a considerable dispute between the parties as to what happened from about 12.50 am onwards.

 

6.             There was a house rule in the pub that staff would drive local customers and fellow co-workers who might be drinking in the pub home at the end of the shift. On this occasion the claimant's co-worker (Sinead) was off duty and the claimant had hoped to collect her after her shift and bring her to a party. Sinead was in another pub five miles away.

 

7.             The claimant stated that she had asked the respondent what time she could be expected to be finished that evening and it was agreed that the respondent had replied 2.00 am as usual, that the claimant was the key-holder and that the respondent expected her to stay until the end of her shift. It was also clear that the respondent had expected the claimant to be leaving her home at the end of the shift in accordance with the house rules.

 

8.             The claimant's evidence at hearing was that she had then approached the respondent to suggest that the other bar worker, Connor, could leave to collect Sinead as the bar was all tidied up and nothing more was needed to be done. The claimant stated that the respondent misconstrued this suggestion as being the claimant's second request to leave early.

 

9.             The claimant and the respondent moved out to the back of the pub to discuss this matter. The claimant stated that after a heated discussion during which the respondent continued to believe that it was she who wanted to leave early, and not Connor, that the respondent had told her to leave, return her keys and not to come back.

 

10.          The respondent denied this version of events. She agreed that she had asked the claimant to move to the back of the pub to avoid further discussion in front of customers. She also agreed that there had been a heated disagreement between herself and the claimant but stated that at the end of the conversation, it was the claimant who had walked out of the kitchen, lifted her bag and threw her set of pub keys across the floor and walked out before the end of her shift. The respondent stated that there had never been any mention of Connor. The respondent concluded that when the claimant did not report for her shift the next morning at 11.00 am the claimant had resigned the previous night.

 

11.          The claimant stated that she had decided to go out to the party herself, in the belief that she had been dismissed and therefore was not required for her 11.00 am shift. She stated that she had been drinking all night and when she was collected from the party the next day, was still drunk. She stated that as she was passing the pub she saw friends of hers outside and stopped to chat to them. The claimant agreed to go into the pub with them for a drink, she had one drink and stayed 45 minutes before leaving. She stated that she had seen the respondent look out from the kitchen and on seeing the claimant the respondent had smirked at her.

 

12.          There was CCTV footage of some of these events but there was no audio soundtrack. It was obvious that there had been a heated discussion in the kitchen and it appeared to the Panel that the respondent had been drinking, looked drunk and had a glass of drink in her hand.

 

13.          The CCTV footage also showed the claimant collecting her bag from the store room and throwing the keys across the pub floor.

 

14.          The CCTV footage also showed the claimant arriving at the pub the next day. It was clear that the claimant was drunk and the claimant did not deny this. The CCTV footage showed the claimant reinacting what had happened the night before to some friends who were drinking with her.

 

15.          The Panel was unable to conclude anything from the CCTV footage as to what had actually transpired between the parties in the kitchen or which version of events was correct.

 

Tribunal's Conclusions and Decision

 

16.          Having considered all the evidence in this case, including the Statements of the parties in their ET1 and ET3 forms and their oral evidence at hearing, the Tribunal reached the decision that it preferred the evidence of the respondent. This is because of the inconsistencies of the Statement of the claimant and her evidence at hearing.

 

17.          In the first instance the claimant stated in her ET1 statement that she had expected to finish work at 1.00 am that night and not 2.00 am and that she had discussed with the respondent her need for a rest break given the fact that unusually she was working early the next day at 11.00 am.

 

18.          However, at hearing, the claimant's evidence was that she had always expected to be staying until 2.00 am, her usual shift end time and that she did not mention the need for a rest break to facilitate her early next day shift. The claimant stated that she had meant to say 2.00 am in her ET1 statement but continued to deny that she had mentioned rest breaks to the respondent thus contradicting her own statement.

 

19.          In the second instance, the claimant's evidence at hearing was more extensive than in her ET1 statement and included the fact that she had mentioned another colleague Connor and that he had agreed to leave early to collect Sinead and that this was what she had proposed to the respondent. However there was no mention whatsoever about Connor in her ET1 statement. In fact the thrust of that Statement was that it was the claimant's view that she had been dismissed for asking to leave early when the respondent had expected her to stay until 2.00 am. It was the Tribunal's view that the claimant's two accounts were so different to make the claimant's evidence unreliable.

 

20.          Therefore the Tribunal concluded that the inconsistencies in the claimant's evidence tipped the balance in the respondent's favour and accordingly the claimant's claim for unfair dismissal fails.

 

21.          It was accepted by the respondent that she had failed to provide the claimant with a Statement of Written Particulars and agreed to pay the claimant £230.40 less overpaid holiday pay of £28.80. The Tribunal ordered the respondent to pay the claimant the sum of £201.60.

 

22.          This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

 

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 12 January 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: