THE INDUSTRIAL TRIBUNALS 
CASE REF:	490/05

	

CLAIMANT:		James Joseph McAleenan	

RESPONDENT:	R.I.A.S		 

DECISION 

The decision of the tribunal is that the claimant is entitled to four weeks net basic pay which is £675.60 in respect of contractual notice pay.  The deductions due to be paid by the respondent for tax and national insurance on this sum are estimated to be £333.60.    The tribunal dismisses the claimant’s remaining breach of contract claims.

Appearances:
The claimant appeared and represented himself.
The respondent was represented by Mrs Geraldine Magill from the Company’s Personnel Department. 
1.	The claimant’s claim was for breach of contract and deduction from wages in
respect of a payment due for the period from 1 – 14 January 2005, four weeks 
contractual notice pay, and compensation for breach of contract because the
claimant contended that he should not have had his contract terminated.

2. 	The issues for the tribunal were, whether the claimant’s contract entitled him to four weeks pay in lieu of notice, whether a deduction from wages for the sum due for the period 1-14 January 2005 occurred and whether the claimant’s contract was breached by the respondent in the way that the company dealt with his absence by dismissing him without notice and the amount of loss occasioned by that breach of contract.

3. 	The tribunal considered the following legislation to be relevant:-

The Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994 and The Employment Rights (Northern Ireland) Order 1996 Article 45(3).

4. 	The tribunal considered the notices of application and appearance, the oral evidence of the claimant and that of Mrs Magill for the respondent company and the documents produced at hearing by both parties.

5.  	During the course of the respondent’s case at hearing it became apparent that the respondent was making the case that the claimant by his actions terminated his contract with the company.  The respondent contended that the claimant was not dismissed despite the admission of dismissal in the notice of appearance to these proceedings.  The company contended that this admission of dismissal was an error and conceded that if the claimant had been dismissed he would have been entitled to four weeks notice pay under his contract.  The claimant was clear that he had been dismissed and had prepared his case accordingly.

6.  	The tribunal found the following facts:

(i)	The claimant was a sales advisor for R.I.A.S. from 8 March 2004 until 14 January 2005 being the date of termination of his employment.  His basic gross monthly earnings were £1,093.00.  The pay slips produced at hearing showed gross basic pay and sick pay but did not show net basic pay.

(ii)  	The claimant went off sick with stress and depression on 1 October 2004 and remained absent until the date his employment ended on 14 January 2005.

(iii) 	From the beginning of his absence on 1 October 2004, the claimant and the company remained in regular contact via sick lines and phone calls until after a meeting on 30 November 2004.  The notes of that meeting were agreed as accurate by the claimant and the notes record that the claimant said that he would contact the respondent after seeing his doctor.

(iv)  	The claimant confirmed that he made no more contact with the company except for his submission of sick lines.  The claimant submitted sick lines some of which were late and one of which for the period ending 24 December 2004 was not received by the company leading to their letter of 4 January 2005 asking for it and raising the issue as to whether the claimant was coming back to work at all.  The claimant’s response to this was to obtain a duplicate sick line for that period and to submit it without a covering note or a telephone call and without a further certificate to bring him up-to-date.

(v)	The company sent a letter on 4 January 2005 to the claimant because they had received no doctor’s certificate for the period from 10 December 2004.  The company had delayed sending that letter because of the Christmas holidays and because it knew the claimant was experiencing some personal problems apart from his illness and the company confirmed with the claimant’s work team that he was still at the same address before they initiated what they termed the AWOL procedures under the contract because the claimant had not submitted a doctor’s line and he had previously been good at keeping in contact with the company. 

(vi)  	The AWOL procedure was contained in the Absence and Sickness Absence Procedure document dated March 2004 which the claimant signed to confirm receipt on 8 March 2004, and the tribunal therefore found it to form part of his contract with the respondent.   That procedure states insofar as it is relevant to the claimant who was on long-term sick leave as follows:-

“If you do not make contact with your CPN, an attempt will be made to contact you, using the land-line number you have provided, during your first day of absence, morning/afternoon/and evening.  If this proves unsuccessful, the HR Department will be informed and the following standard absence procedure will be followed.

1.  	A letter will be sent requesting that immediate contact be made.  The letter will advise that failure to make contact and follow procedures may jeopardise processing of sickness benefit (where the absence is sickness-related) and continued employment with the company.

2.  	If no contact is made a further reminder will be sent, again requesting that immediate contact is made.  The letter will advise that failure to make contact and follow procedures will lead the company to assume that you no longer wish to be employed by the company.

3.  	If no contact is made a final letter will be sent terminating your employment with the company”.

(vii)  	The company had taken step one with the letter of 4 January 2005.  Before it went to step two, it telephoned the claimant’s mother at work expressing their concern to her that the claimant had not contacted the company.  The claimant’s mother confirmed that the claimant still lived at the address which the company had and confirmed the contact number that the company had and gave the claimant’s grand-mother’s number for the company to contact.  The company did so and left a message for the claimant to ring them.  

(viii)  	The second stage of the procedure was invoked by sending a letter on 10 January 2005.  The claimant states that he did not receive this letter.  The company received a doctor’s line on 14 January 2005 with no covering note nor did they receive a phone call from the claimant.  The doctor’s line only covered the claimant up to 24 December 2004 and the company did not regard the doctor’s line as contact because it was out of date at that stage.

(ix)  	Stage three of the company AWOL procedures were invoked by sending a letter dated 17 January 2005 to terminate the claimant’s contract.

(x)	The claimant claimed that he had never received a copy of the staff handbook which outlined the bulk of the procedures to do with sickness and absence, yet on 28 February 2004, the claimant signed his contract of employment confirming that he had received the staff handbook and had read and understood it.  The tribunal therefore finds that the staff handbook formed part of the claimant’s contract of employment and that the claimant had sufficient notice of, and agreed to be bound by, its contents.  The company’s staff handbook states in its sickness procedures that an absent employee must keep the company fully advised throughout the absence procedure.  It also makes clear that failure to produce appropriate sick certificates and failure to comply with the company absence procedures would likely lead to non-payment of company sick pay.  Under “employee responsibilities“ , the handbook states that failure to forward doctor’s 

certificates could put sickness payments in jeopardy and also states that the employee must maintain at least weekly contact with the relevant line manager to up-date them on the employee’s condition/absence.  The company had during a previous period of absence, reiterated to the claimant the absence procedures by letter of 25 June 2004 which stated that absent employees were required to keep in contact with the company advising of the reason for and the possible length of any absence.

7.  	As the claimant did not have the requisite length of service to bring an unfair dismissal claim, the tribunal did not look at the fairness or otherwise of the dismissal.  The tribunal construed the claimant’s contact in order to determine the responsibilities of the parties and considered the circumstances of the termination of the claimant’s contract to determine whether the respondent was in breach of the contract.
  
8.  	The tribunal finds that the claimant was dismissed by the respondent by letter of 17 January 2005.  The respondent’s own procedures at step three indicate termination of employment.  Whilst the letter sent to the claimant indicated that the claimant had terminated his own employment, the letter makes clear that the company determined the date of termination namely 14 January 2005 and it indicates that the claimant had a right of appeal and the tribunal finds that both of these factors are indicative of a dismissal particularly in the context of the respondent admitting dismissal in the notice of appearance to these proceedings.  

9.  	As the claimant was dismissed and the respondent conceded during the hearing that four weeks notice pay would be payable in those circumstances, the tribunal finds that four weeks net basic pay is payable to the claimant in accordance with his contract.  The gross figure of £1009.20 for that period is arrived at by multiplying the monthly sum of £1093.34 by 12 and dividing by 52 to get a weekly rate of £252.30.  

10.  	The tribunal finds no breach of contract in the company’s operation of the procedures laid down in the contract for dealing with an employee on sick leave who fails to submit sick lines and fails to keep in contact with the company.  The tribunal finds it surprising that the claimant did not make contact with the company even allowing for the personal difficulties he was experiencing.  The tribunal finds that the company was justified in initiating their AWOL procedures, in view of the claimant’s non-communication with them despite the clear and repeated reference to the obligation on him to do so in the staff handbook and absence procedures documents, and in view of his lack of response to their varied efforts to have him contact them.   The tribunal therefore dismisses that aspect of the claimant’s breach of contract claim. 

11.	The claimant withdrew that part of his claim relating to further payment for the period 1-14 January 2005 after discussions between the claimant and the respondent to clarify the calculation of pay for that period and the tribunal therefore dismisses that aspect of the claim. 

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

Chairman:

Date and place of hearing:	3 June 2005, Belfast.		

Date decision recorded in register and issued to parties: