Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1882/16

 

 

CLAIMANT: Jennifer Andrews

 

 

RESPONDENT: Victor Foster Poultry Services Ltd

 

 

DECISION

The claimant's complaints in respect of unfair constructive dismissal, holiday pay and unpaid wages are dismissed.

 

Constitution of Tribunal:

President: Eileen McBride CBE

Members: Miss D Adams

Mr B Hanna

 

Appearances:

The claimant did not attend the Hearing nor was she represented.

The respondent was represented by Mr P Moore LLB of MCL Associates.

 

Reasons

 

1. The claimant presented a claim to the industrial tribunal on 25 August 2016. The respondent presented a response on 9 October 2016 resisting the claimant's claim.

 

2. A Case Management Discussion took place on 4 November 2016 to progress the case to and list it for Hearing. The claimant represented herself at that Hearing. The respondent was represented by Mr Moore. A record of the Case Management Discussion was sent to the parties on 16 November 2016. At paragraph 1 of the record, Employment Judge Buggy who had conducted the Case Management Discussion recorded that the claimant's claim was in respect of unfair dismissal, holiday pay and unpaid wages.

 

At paragraph 2 Employment Judge Buggy identified that the claimant's unfair dismissal claim was a constructive dismissal claim and that accordingly in the context of that claim, the key issues would be as follows:

 

(1) Was the employer guilty of a repudiatory breach of contract?

(2) If so, did the claimant resign in response to that breach?

 

At paragraph 5 Employment Judge Buggy recorded that the claimant and the respondent were ordered to provide discovery to each other of any documents upon which they intended to rely at the Hearing by 21 November 2016.

 

At paragraph 6 Employment Judge Buggy recorded that the claimant was ordered to provide the respondent's representative with a schedule of all financial loss claimed by her, setting out the nature and amount of any such loss claimed and how that sum was made up by 30 November 2016.

 

At paragraph 8 Employment Judge Buggy ordered the claimant to provide a signed and dated witness statement to the respondent's representative by 6 January 2017. At paragraph 8 a similar Order was made against the respondent.

 

At paragraph 17 Employment Judge Buggy ordered the parties to liaise and prepare an agreed, detailed and paginated index of all documents to be contained in the bundle and at paragraph 18 he ordered four copies of that bundle and four copies of folders containing the witness statements to be lodged in the Office of the Industrial Tribunals by 9.45am on the first day of the hearing which was listed for 2 and 3 February 2017.

 

3. On 21 November 2016 the claimant sent two documents to the tribunal. The first document appeared to be her witness statement. It was unsigned and undated. The second document which ran to 12 pages was headed Agency Labour Compliance (ALC) Audit Tool - Corrective Action Plan. The claimant did not send a copy of either document to Mr Moore.

 

4. By correspondence dated 5 December 2016, Mr Moore wrote to the claimant in the following terms:

 

"At the Case Management Discussion of 4 ^th November 2016 you were directed by Employment Judge Buggy to provide a schedule of loss which sets out all alleged losses and how they are made up by the 30 ^th November 2016.

 

At the time of writing this has still not been furnished to these offices therefore an application will be made to have your claim struck out if your schedule of loss and any vouching documentation is not issued to these offices by close of business on7th December 2016."

 

5. By correspondence dated 14 December 2016 Mr Moore wrote to the tribunal in the following terms:

 

"At the Case Management Discussion on 4 ^th November 2016 Employment Judge Buggy directed the claimant to provide the respondent with a schedule of loss by 30 ^th November 2016.

 

As the schedule of loss was not issued by the claimant by that date in compliance with Rule 11 a letter was issued on 5 ^th December 2016 requesting the claimant to forward her schedule of loss before the 7 ^th December 2016 in line with the Judge's direction. (See attached).

 

No response was given to that letter and to date no schedule of loss has been issued.

 

I would ask therefore if the case could be set down for a further CMD to consider striking out the claimants claim for failing to comply with the judges directions.

 

The claimant has been copied into this correspondence.

 

Please acknowledge receipt."

 

6. By correspondence dated 22 December 2016 the tribunal sent the claimant a copy of Mr Moore's correspondence to the claimant and asked her to provide her comments by 5 January 2017.

 

7. The claimant did not respond to the tribunal's correspondence of 22 December 2016 and a further Case Management Discussion was therefore arranged for 16 January 2017 to consider the procedural way forward in light of Mr Moore's correspondence. The claimant was informed that she could participate at the Case Management Discussion by telephone.

 

8. The claimant did not attend the Case Management Discussion on 16 January 2017 or ask for a postponement of it. Nor did she participate by way of telephone.

 

9. The Case Management Discussion proceeded on 16 January 2017 before Employment Judge Buggy.

 

10. A record of the Case Management Discussion was issued to the claimant and the respondent's representative on 24 January 2017.

 

At paragraph 7 Employment Judge Buggy recorded that he had extended the time limit for the claimant to provide her schedule of loss to the respondent until 27 January 2017.

 

At paragraph 8 Employment Judge Buggy recorded the Hearing would now proceed on 2 February 2017 only.

 

11. That Hearing was postponed due to another commitment on the part of Mr Moore without objection from the claimant and was relisted for 6 February 2017. The claimant indicated that that date did not suit her and the hearing was therefore relisted for 28 February 2017. That hearing was postponed on 27 February 2017 as the claimant had just suffered an immediate family bereavement.

 

12. The Hearing was relisted for 27 April 2017 and the parties were notified of that Hearing by correspondence and notice dated 20 March 2017.

 

13. The claimant did not attend the Hearing. Nor did she contact the tribunal prior to the Hearing to seek a postponement. The tribunal therefore proceeded in accordance with Rule 27(5) and (6) of the Industrial Tribunals Rules of Procedure 2005.

 

14. Rule 27(5) provides:

 

"If a party fails to attend or to be represented (for the purpose of conducting the parties case at the hearing under rule 26) at the time and place fixed for such hearing, the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date."

 

Rule 27(6) provides:

 

"If a tribunal wishes to dismiss or dispose of proceedings in the circumstances described in paragraph (5), it shall first consider any information in its possession which has been made available to it by the parties.

 

15. In accordance with Rule 27(5) and (6) the tribunal considered:

 

(i) the claimant's claim form;

 

(ii) the respondent's response form;

 

(iii) the document which the claimant sent to the tribunal on 21 November 2016 which appeared to be her unsigned and undated witness statement and the 12 page document which was attached to it entitled Agency Labour Compliance (ALC) Audit Tool - Corrective Action Plan;

 

(iv) the signed and dated witness statement of Tanya Gwynne which she adopted under oath as her evidence in chief on behalf of the respondent'

 

(v) the signed and dated witness statement of Victor Foster which he adopted under affirmation as his evidence in chief on behalf of the respondent;

 

(vi) the bundle of documents which Mr Moore had prepared for the tribunal;

 

(vii) the claimant's letter of resignation dated 27 May 2016; and

 

(viii) Mr Moore's submissions on behalf of the respondent.

 

16. Having considered those matters the tribunal decided to dismiss the claimant's complaints in respect of unfair constructive dismissal, holiday pay and unpaid wages for the following reasons:

 

Unfair Constructive Dismissal

 

17. As set out at paragraph 2 above, Employment Judge Buggy had identified at the Case Management Discussion on 4 November 2016 that the key issues in an unfair constructive dismissal complaint were as follows:

 

(1) Was the employer guilty of a repudiatory breach of contract?

(2) If so, did the claimant resign in response to that breach?

 

The onus is on the claimant to establish on the balance of probabilities that the respondent was guilty of a repudiatory breach of contract and that she had resigned in response to that breach.

 

18. The tribunal preferred the witness statements of the respondent's witnesses Tanya Gwynne and Victor Foster, which were adopted as their evidence in chief under oath and affirmation respectively (which were not challenged at the Hearing) to the unsigned and undated witness statement of the claimant which was not adopted as her evidence in chief under oath or affirmation at the Hearing and which was challenged by Mr Moore.

 

The tribunal was not therefore satisfied that the claimant had proved, on the balance of probabilities, that the respondent had been guilty of a repudiatory breach of her contract of employment. Nor was the tribunal satisfied, in light of the contents of the claimant's letter of resignation dated 27 May 2016, that she had resigned in response to a repudiatory breach.

 

Holiday Pay

 

19. The tribunal preferred the evidence on behalf of the respondent that the claimant's holiday pay was calculated incorrectly initially but when the claimant made Tanya Gwynne aware of that it was recalculated correctly and paid by BACS into the claimant's bank account and that no further holiday pay was due to the claimant.

 

Arrears of Pay

 

20. Mr Moore submitted that the claimant had still not provided a schedule of loss despite the extension of time she was granted by Employment Judge Buggy at the Case Management Discussion on 16 January 2017 and the respondent was unclear as to what her claim was. The tribunal was also unclear as to what her claim was and was not satisfied that she had proved it on the balance of probabilities.

 

 

 

______________________________________

E McBride CBE

President

 

Date and place of Hearing: 27 April 2017, Belfast

 

Date decision recorded in Register and issued to the parties.