Cochrane v Roadside Motors Coleraine Limi... [2012] NIIT 02145

THE INDUSTRIAL TRIBUNALS

CASE REF: 2145/11

CLAIMANT: Clair Cochrane

RESPONDENT: Roadside Motors Coleraine Limited

DECISION

The unanimous decision of the tribunal is that the claimant’s claims of constructive dismissal and notice pay are dismissed, and that she is not entitled to a remedy in relation to the respondent’s failure to provide her with written particulars of her employment.

Constitution of Tribunal:

Chairman: Mr S A Crothers

Panel Members: Miss M Bailey

Mr G Hunter

Appearances:

The claimant was represented by Miss Mulholland, Barrister-at-Law, instructed by Conor Agnew and Company Solicitors.

The respondent was represented by Mr B Mckee, Barrister-at-Law, instructed by MacCorkell Legal and Commercial Limited, Solicitors.

The Claim

1. The claimant claimed that she had been constructively dismissed by the respondent, that the respondent did not provide her with written particulars of her employment, and did not pay her notice pay or holiday pay. The respondent denied the allegations in their entirety. The claimant withdrew her claim of sex discrimination from before the tribunal. Furthermore, subsequent to the conclusion of the hearing the claimant withdrew her claim for holiday pay.

The Issues

2. The agreed legal issues remaining before the tribunal were as follows:-

(1) Was the claimant constructively dismissed by the respondent?

(2) Did the respondent provide the claimant with written particulars of her employment?

(3) Did the respondent fail to pay the claimant the required notice pay?

Sources of Evidence

3. The tribunal heard evidence from the claimant and, on behalf of the respondent from Fred Kane, described as general manager with the respondent, and Brian Hutchinson, a director with the respondent. The tribunal also received a bundle of documentation together with other documentation in the course of the hearing. This included an agreed schedule of loss, subject to the liability issue.

Findings of Fact

4. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact, on the balance of probabilities:-

(i) The title of the respondent (“Roadside”) is that shown above. The claimant was employed by Roadside from 14 February 2007 as an after sales service advisor until 1 July 2011. There was insufficient evidence before the tribunal to satisfy it that the claimant had received a statement of initial employment particulars as required by Article 33 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).

(ii) The claimant’s duties included taking telephone calls from customers regarding vehicle complaints, handling bookings for the workshop, phoning customers in relation to any additional work required, preparing bills for customers, contacting customers to indicate that vehicles were ready for collection and returning vehicles to customers. Furthermore, she prepared job cards on a daily basis and made follow-up calls three days after the work was completed on vehicles. Technicians were given jobs on a daily basis in relation to workshop repairs.

(iii) The claimant’s gross weekly wage was £246.00 (£214.71 net). It was not disputed by the respondent that the claimant was a hard working and conscientious employee who did her best for the respondent. When she commenced employment, the service manager, and her line manager, was Thomas Creelman. He left employment with the respondent in or about May 2010 and was replaced by Aaron Watton. At this stage the respondent was experiencing considerable problems with outstanding warranty claims which had not been paid by Renault due to complications with a computerised system introduced in April 2010. This issue was compounded when Renault produced an EDR system at the beginning of 2011. The problem with warranty payments had still not been resolved in July 2011 and persisted for some time after the cessation of the claimant’s employment on 1 July 2011.

(iv) When the warranty problem initially arose in April 2010 Aaron Watton was responsible for dealing with the issue. The claimant remained at the front desk. However Aaron Watton was on sick leave from 23 May 2011 until 14 June 2011. The claimant undertook a level 1 warranty course in April 2011, having already been trained to level 1 as a service advisor. During the period of Aaron Watton’s leave the claimant received a telephone call from Renault concerning an outstanding amount of £15,000.00 owed to Roadside for outstanding warranty claims. The claimant spoke to Fred Kane whom she thought was the sales manager at the time. The tribunal accepts that he was appointed general manager with the respondent in 2010. It also accepts that the claimant felt stressed during the period of Aaron Watton’s leave and that Fred Kane did state to the claimant that she (the claimant) wanted Aaron Watton’s job. He also said to her on another occasion during Aaron Watton’s sick leave that if she was not capable of doing the job she would be better off not being there.

(v) The tribunal does not accept that there is evidence for the claimant’s suggestion that technicians were frequently late and took tea breaks lasting for 20-25 minutes instead of the usual 15 minutes. On one occasion, the claimant was held up at lunch time. The fact that this was brought to her attention is, in the tribunal’s view, something to be expected and is thought nothing unusual. Furthermore, there is no evidence before the tribunal to substantiate the claimant’s claim that there was a lack of commitment by the other staff working at Roadside during the last few months of the claimant’s employment. The tribunal, however, does not doubt the claimant’s commitment to her work and accepts that she was under considerable pressure at times in relation to the ongoing warranty problems. However there was no medical evidence before the tribunal to back up the claimant’s claim that she attended her GP owing to stress at work and that she was prescribed certain medication for this.

(vi) On 27 June 2011 a customer left a vehicle with Roadside with gearbox problems. The warranty on the vehicle was about to expire and the customer did not wish to drive the vehicle in such circumstances. The claimant had been responsible for booking the vehicle in for repair and for obtaining the customer’s signature and ensuring that there was enough work booked in to keep the technicians busy during the week. Fred Kane and Aaron Watton also knew that the vehicle had been booked in. However nothing was done to address the problem with the vehicle from Monday to Thursday of the particular week. On Friday 1 July, Aaron Watton was on leave together with the master technician. The customer who had been given a courtesy vehicle, contacted the claimant about the position regarding the vehicle. The claimant, who had been under the impression that Aaron Watton had contacted the customer, spoke to Fred Kane who in turn spoke to the relevant technician. A robust exchange, described by the claimant, as a “difference of opinion”, took place between the claimant and Fred Kane behind closed doors. Fred Kane accepted that he said to the claimant “I don’t give a fuck about Aaron”, after the claimant had complained about him doing nothing about the vehicle all week. Use of aggressive behaviour or excessive bad language towards a customer/colleague is treated as gross misconduct under the Respondent’s disciplinary procedure, and use of foul language is categorised as major misconduct. The claimant accepted in her evidence that during the episode both of them were shouting and, apart from the remark made by Mr Kane referred to previously, which was not directed specifically at the claimant, the tribunal finds it difficult to ascertain precisely the sequencing and significance of the exchanges between Mr Kane and the claimant before she left the premises.

(vii) The claimant had had contact with the director, Brian Hutchinson regarding uniforms on a past occasion and there was no evidence that she raised any complaint with him concerning either Aaron Watton or Fred Kane at any time prior to 1 July 2011.

(viii) The respondent’s grievance policy states:-

“The object of this procedure is to provide an employee who has a grievance, with every opportunity to have it examined quickly and effectively and where a grievance is deemed to exist, to have it resolved if possible, at the earliest practicable moment ... the grievance shall be heard within 5 working days and a decision given within a further 5 working days of the hearing.”

The claimant, who commenced employment with a taxi firm on 11 July 2011, was contacted on that same date by Brian Hutchinson. He requested her to set out the issues in writing. The tribunal carefully considered the correspondence from the claimant to Brian Hutchinson dated 21 July 2011 together with his response of 28 July 2011 and further correspondence from the claimant dated 10 August 2011 in which the claimant again refers to the incident which took place on 1 July 2011 and, that when Aaron Watton was off sick, Fred Kane raised his voice and told her that if she was not capable of doing the job she would be better off not being there. Brian Hutchinson did not reply further until 23 September 2011 inviting the claimant to meet with him to discuss the matter and the points she had raised. He invited her to ring him at the Lurgan office to arrange a mutually convenient time to meet. It was common case that on 23 September 2011, the respondent did not know that the claimant had presented a claim to the tribunal office. The claimant was under the impression that the letter had been sent to her dated 23 September 2011, on the basis that the respondent knew that she had presented a claim to the tribunal. This explains why the claimant did not take up the respondent’s offer to meet with Brian Hutchinson.

(ix) In the overall context of what transpired subsequent to 1 July 2011 and the fact that Brian Hutchinson took the initiative to contact the claimant, the tribunal is not satisfied that the manner in which her grievance was dealt with was itself reflective of the alleged lack of support the claimant suffered during her employment with the respondent. The claimant did not articulate her grievance properly until after the initiative was taken by Brian Hutchinson to phone her on 11 July 2011.

The Law

5. (i) Article 127 of the 1996 Order states as follows:-

“127. — (1) for the purposes of this Part an employee is dismissed by his employer if ... - (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct”.

(ii) Harvey on Industrial Relations and Employment Law (“Harvey”) states at Division D1 at 403 as follows:-

“In order for the employee to be able to claim constructive dismissal, four conditions must be met:

(1) There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.

(2) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

(3) He must leave in response to the breach and not for some other, unconnected reason.

(4) He must not delay too long in terminating the contract in response to the employer’s breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract”.

(iii) The tribunal further considered Harvey at Divisions D1-3. on Constructive Dismissal. This section includes a summary and analysis of the law relating to the implied duty of trust and confidence, the duty of cooperation, and the “last straw” doctrine. It also deals with the duty of an employer to promptly address grievances.

(iv) The tribunal considered Article 33 of the 1996 Order in relation to employment particulars. It also considered Article 27 of the Employment (Northern Ireland) Order 2003, which affords a remedy to a claimant for a breach of Article 33 when either the tribunal finds in favour of the claimant but makes to award to him in respect of the claim to which the proceedings relate (ie constructive dismissal) or when an award is made to the claimant.

Submissions

6. The tribunal was assisted by the helpful written and oral submissions made by both counsel. The written submissions, incorporating references to various authorities, are appended to this decision.

Conclusions

7. The tribunal carefully considered and weighed the evidence in arriving at its findings of fact. It also carefully considered the law relating to constructive dismissal and the conditions which must be met in order for the claimant to be able to claim constructive dismissal. Having applied the relevant principles of law to the findings of fact, the tribunal concludes as follows:-

(i) The claimant has not proved a repudiatory breach of contract by the respondent justifying her resignation, or a breach in the last of a series of incidents which justified her leaving. Furthermore there is insufficient evidence to conclude that the respondent’s conduct was calculated to destroy or seriously damage the claimant’s contract of employment with the respondent.

(ii) The claimant is therefore not entitled to a remedy in respect of her claim for notice pay or in respect of the respondent’s failure to provide her with written particulars of employment. The tribunal has some sympathy with the claimant in the circumstances in which she found herself. Nevertheless, it dismisses her claims in their entirety.

Chairman:

Date and place of hearing: 23 + 24 March and 3 + 4 May 2012, Belfast.

Date decision recorded in register and issued to parties:

IN THE OFFICE OF INDUSTRIAL TRIBUNALS & THE FAIR EMPLOYMENT
TRIBUNAL

CASE REF. NO: 1150/10

BETWEEN:

CLAIR COCHRANE

CLAIMANT

AND

ROADSIDE MOTORS (COLERAINE) LTD

RESPONDENT

SUBMISSIONS ON BEHALF OF THE CLAIMANT

______________________________________________________________________________

The proper name of the Respondent

1. The Claimant agrees that the proper name of the Respondent is Roadside Motors (Coleraine) Ltd.

Schedule of loss

2. The schedule of loss is agreed but for liability on Constructive Dismissal.

The Tribunal’s Task

3. The Tribunal’s task is to decide whether the Claimant was unfairly dismissed contrary to Article 126 of the Employment Rights (Northern Ireland) Order 1996. The Claimant seeks compensation for Unfair Dismissal as per the agreed schedule of loss.

4. If the Tribunal find that the Claimant was unfairly dismissed she is also entitled to notice pay as per the agreed schedule of loss.

5. If the Tribunal find that the Claimant was unfairly dismissed the Claimant is entitled to compensation for failure to provide written particulars or a variation of written particulars by virtue of Article 27 of the Employment (Northern Ireland) Order 2003 as per the agreed schedule of loss.

The Law

6. An employee has the right not to be unfairly dismissed by her employer (Article
126(1) 1996 Order). Constructive dismissal is provided for by Article 127(l) (c) which states that an employee is dismissed by his employer if the employee terminates the contract under which he is employed (with or without notice,) in circumstances in which he is entitled to terminate it without notice by reason of his employer’s conduct.

7. In order for an employee to succeed in a claim for constructive dismissal, four conditions must be met:

i. There must be a breach of contract by the employer;

ii. That breach must be sufficiently important to justify the employee resigning;

iii. She must leave in response to the breach and not for some other, unconnected reason;

iv. She must not delay too long in terminating the contract in response to the employer’s breach.

8. It is submitted that the Respondent is in breach of the implied terms of trust and confidence and the duty of co-operation. It is submitted that these are serious breaches amounting to the repudiation of the Claimant’s contract of employment which entitled the Claimant to dismiss herself.

9. Please see relevant extract from Harvey on Industrial Relations and Employment Law/ Division D1 Unfair Dismissal/3. Termination by the Employee: Constructive Dismissal/C for a useful summary of the application of the implied terms of trust and confidence and the duty of co-operate in the context of constructive dismissal claims. The writer does not propose to address the tribunal in detail regarding the development of these implied terms as the Tribunal will be familiar with the principles laid down in Mahmud v Bank of Credit and Commerce International SA

[1997] ICR 606.

Submissions

10. The Claimant makes the following points grounding the submission that the Claimant was Constructively dismissed by the Respondent:

a) The Claimant was a hard working, conscientious employee who tried her best. Brian Hutchinson in his evidence agreed that she cared about her work, lie also stated he never received any complaint about her work in the four years she worked for the Respondent;

b) The Respondent by its own admission had a major problem with outstanding warranty claims that had not been paid to the Dealership by Renault due to complications with a new computer system introduced in April 2010 and a new communication system introduced by Renault in and around April 2011. The Claimant was trained in Warranty Work in April 2011 and was then tasked alongside Aaron Watton, Service Manager, to deal with current and outstanding claims;

c) The Claimant received a telephone call directly from Renault inquiring about £15,000 of outstanding warranty claims; as a conscientious employee who was trying her best this caused the Claimant great concern;

d) Aaron Watton took sick leave from the 23°’ May 201 Ito 14^th June 2011. By the Respondent’s own admission Aaron Watton had more involvement dealing with warranty matters than the Claimant had however whilst Aaron Watton was off on leave the warranty matters fell to the Claimant to deal with;

e) The Claimant was struggling to cope during this time and raised her concerns with Fred Kane; the response she received from Fred Kane was an accusation that she was trying to take Aaron Watton’s job from him; when questioned about this comment Fred Kane said in his evidence that he did recall saying something to that effect in respect of comments made about Aaron and that he meant nothing by it. It is submitted that this was a feeble excuse in relation to an unwarranted, disrespectful comment made to a hard working employee who clearly felt offended and upset by it having been made — she was losing trust and confidence in her employer. This also demonstrates a lack of cooperation in the Respondent failing to provide support to the Claimant in carrying out her duties.

f) Mr Kane himself acknowledged that he had no problems or issues regarding the Claimant’s work or efforts;

g) On another occasion when the Claimant highlighted concerns to Mr Kane he said if she couldn’t do the job that she shouldn’t be there. This is another example of the Respondent failing to co-operate with the Claimant by failing to deal with her concerns. This incident contributed to the breach of the implied term of trust and confidence. It is noted that Mr Kane denied making this comment in his evidence however it is submitted that the Claimant is a credible witness whose account should be believed;

h) The stress that the Claimant was tinder resulted in her consulting her GP and being prescribed Diazepam; this is the first time the Claimant has ever been on such medication;

i) In the Claimant’s words the matter “came to a head” on Friday 1^st July 2011. The Claimant was tasked with communicating to a customer whose vehicle had been booked in for repair on Monday 27’’ June 2011 that his vehicle was not ready and in fact nothing had been done with it all week. The Claimant was anxious about what to tell the customer and about what was being done with the vehicle. It is submitted that it was a perfectly natural reaction on the part of the Claimant to be concerned regarding a vehicle that has sat all week without any work being done on it. It is also submitted that it was perfectly natural for the Claimant to feel concerned regarding communicating to the customer that nothing had been done to fix his vehicle all week. Mr Hutchinson in his evidence did not accept that the Claimant should have felt concerned regarding this issue however it is submitted that a conscientious After Sales Advisor would feel concerned about an unsatisfactory scenario such as this and that her reaction in speaking to Mr Kane about what to do regarding the matter was proportionate and reasonable. Mr Hutchinson in his evidence admitted that the matter regarding the vehicle sitting all week without any work having been done concerned him to the extent that he “looked into it”.

j) It is accepted by the Respondent that Mr Kane raised his voice; it is accepted by the Respondent that Mr Kane said to the Claimant “I don’t give a fuck about Aaron” when the Claimant complained about Aaron Watton doing nothing about the vehicle all week; it is also accepted by the Respondent that Mr Kane said something along the lines of “he hadn’t ever used bad language before”; it is the Claimant’s case that Mr Kane blamed her for him having to resort to such language; it is also accepted by the Respondent that the Claimant left the building after this comment was made by Mr Kane;

k) It is submitted that Mr Kane’s use of foul language towards the Claimant is a breach of the implied term of trust and confidence. The Respondent has attempted to play this comment down by describing it as a comment not made directly in relation to the Claimant. It is submitted that this comment was said directly to the Claimant, directly in response to concerns she had raised. It is submitted that this response was wholly unacceptable behaviour on the part of a manger especially in the context of an employee trying to do her best. The Claimant’s case is that Mr Kane was aggressive and that he invaded her space. Mr Kane’s reaction to the Claimant raising a perfectly legitimate concern in trying to carry out her role as After Sales Advisor was abusive, inconsiderate and a serious breach of the implied term of trust and confidence;

l) Mr Kane’s reaction to the Claimant on the 1^st July 2011 was the straw that broke the camel’s back for the Claimant; she was on longer able to remain in her employment following Mr Kane’s reaction to her and she was entitled to accept this repudiation of her contract of employment;

m) Use of foul language comes tinder “Major Misconduct” in the Respondent’s Disciplinary Policy [Page 62] yet no action was taken against Mr Kane in any form in relation to this incident;

n) Brian Hutchinson declined an offer to meet the Claimant regarding issues she wanted to raise regarding her departure from the Respondent organisation but Mr Hutchinson preferred the Claimant to put her concerns in writing;

o) It is submitted that the Claimant’s reasons for leaving the Respondent organisation were clearly and contemporaneously set out in her letters to Brian Hutchinson dated 21^st July 2011 [Page 39] and the 10^th August 2011 [Page 42] and the Claimant has not departed from these reasons in any way throughout these proceedings;

p) It took Brian Hutchinson six weeks to respond to the Claimant’s letter of the 10th August 2011 by which time the Claimant had already submitted her claim to the Industrial Tribunal. The Respondent’s Grievance Policy [Page 58] states:

“The object of this procedure is to provide an employee who has a grievance, with every opportunity to have it examined quickly and effectively and where a grievance is deemed to exits, to have it resolved if possible, at the earliest practicable moment... The grievance shall be heard within 5 working clays and a decision given within a furrther 5 working days of the hearing.”

q) Mr Hutchinson’s handling of the Claimant’s grievance flies in the face of the Respondent’s own Grievance Policy; it is submitted that the lack of cooperation, commitment and care that Mr Hutchinson demonstrated in the aftermath of the Claimant’s departure is reflective of the lack of support the Claimant suffered during her employment with the Respondent;

r) It is accepted by the Claimant that the Respondent had not received notice of the Claimant’s claim from the OITFET before Mr Hutchinson’s letter of the 23rd September 2011 however at the time the Claimant was unaware of procedure and naturally feared that the only reason she received the letter of the 23rd September 2011 was because she had brought a claim. The Claimant now realised this is not the case however this explains the Claimant’s lack of response to that letter at the time, It is also submitted that it was far too late at that stage given the implied duty to deal with grievances promptly and the Respondent’s own express provision to that effect in its Grievance Policy.

Conclusion

11. in view of the above it is submitted that the Respondent has committed a repudiatory breach of the implied terms of trust and confidence and co-operation of the Claimant’s contract of employment. This is characterised in the above chronology of events which involved the Claimant feeling under pressure with little or no support provided by the Respondent; her concerns were not taken seriously instead she was chastised for raising them; ultimately matters did come to a head with Mr Kane using foul language and aggressive behaviour to the extent that the Claimant could no longer remain in her employment. It is submitted that in the circumstances the Claimant was entitled to leave and consider herself constructively dismissed.

Credibility

12. It is submitted that the Claimant’s evidence was concise, cogent and credible throughout.

Mitigation of Loss

12. The following points are made to ground the submission that the Claimant has properly

and adequately mitigated her loss:

a) The Claimant promptly sought alternative employment with S.B Taxis primarily as a Radio Operator covering for another Radio Operator who was off on Maternity Leave;

b) The Claimant works 24 hours per week earning national minimum wage;

c) The Claimant has a PSV Licence on her own personal vehicle which is insured to be driven as a Taxi under the Insurance Policy of S.B. Taxis;

d) The Claimant makes some of her 24 hours up driving her own vehicle as a Taxi for SB Taxis;

e) The Claimant is not in a position to use her PSV licence to Taxi on her own as she cannot afford the added costs that this would involve for example insurance and depot costs;

f) The Claimant is a single mother of three children;

g) The Claimant has provided her payslips from S.B. Taxis which evidences that she works 24 hours per week earning National Minimum Wage;

h) It is submitted that in the current job market with such high levels of unemployment the Claimant has mitigated her loss adequately and properly by managing to find new employment in a short space of time.

13. The Claimant reserves the right to make further oral submissions before the Tribunal.

Maria Mulholland BL

4th May 2012

Constructive Dismissal

The claimant resigned. She alleges the employer has committed a serious breach of contract — a repudiatory breach. That is the conduct must be calculated to destroy or seriously damage the contract of employment.

It is important to grasp this fundamental difference between constructive dismissal and the normal unfair dismissal cases in which the employer has dismissed the employee and the tribunal will determine the reason for the dismissal and then judge the fairness of the decision to dismiss in the circumstances of the case.

Constructive dismissal is altogether different. It is not a question of fairness or reasonableness. There must be a repudiatory breach of contract: Western Excavating v Sharp [1978] ICR 22

The claimant alleges a breach of mutual trust and confidence. This implied term is a fundamental term of any contract of employment. The approach for the tribunal when considering an alleged breach of the implied duty of mutual trust and confidence was approved in Buckland v Bournemouth University[2010] EWCA Civ 121 at paragraph 22 as Follows:

(1) In determining whether or not the employer is in fundamental breach of the implied term of trust and confidence the unvarnished Mahmud test should be applied.

(2) If, applying the Sharp principles, acceptance of that breach entitled the employee to leave, she has been constructively dismissed.

(3) It is open to the employer to show that such dismissal was for a potentially fair reason.

(4) If he does so, it will then he for the Employment Tribunal to decide whether dismissal for that reason, both substantively and procedurally (see Sainsbury v Hitt [2003] IRLR 23), fell within the range of reasonable responses and was fair.

It is submitted that the reasons relied upon by the claimant are insufficient to establish a repudiatory breach. The tribunal should be careful to analyse the reasons upon which the claimant relied at the time of resignation rather than additional arguments which have been forward on her behalf at the hearing. The reasons relied upon by the claimant were

(1) The lack of commitment of all the other employees

(2) Pressure of work: warranty claims

(3) Sex Discrimination

(4) Not being paid for time worked

(5) An alleged difference in treatment between the claimant and mechanics in relation to time keeping

(6) The behaviour of Fred Kane on 1^st July

(7) The inaction Fred Kane

Brian Hutchinson dealt with each of these allegations in his evidence. Contrary to the claimant’s allegation that all other members of staff were uncommitted, he pointed out that all manufacturer and customer satisfaction targets had been met. The tribunal will note that the claimant’s broad criticism of all her colleagues stands in stark contrast to the repeated cross-examination of the respondent’s ‘witnesses concerning how conscientious, hard-working and committed the claimant was.

The claimant accepted that she carried out warranty work and she had been trained to do so. For 3 weeks her line manager had been absent due to pressing family matters. This placed more work on her, but it was temporary

had he had returned 3 weeks before the claimant resigned. The claimant also accepted when she had been under pressure at the front desk support had been provided for her. On 1^st July the day the claimant resigned her manager had been at work the previous day and was back at work the following working day. To suggest that it is a repudiatory breach of contract by the respondent that on this single morning that a phone call from Renault outlining that Renault owed the respondent approximately £15,000 is ludicrous.

The alleged difference in treatment did not stand up to scrutiny. The claimant’s allegations were broad and she was comparing different situations. She made a sweeping allegation that the mechanics often took 20-25 minutes for a tea break: no individuals were named, no dates, no times. No evidence was called to support this. Mr Hutchinson investigated the general allegation and found no support for it. Further, Mr Hutchinson pointed out that the claimant’s line manager would have been correct to reprimand her in the circumstances she mentioned because she described being late without any excuse or notice.

The claimant raised the issue of not being paid for time worked. In response to questions from Brian Hutchinson she accepted that she had not been deducted any wages. The claimant’s allegation of sex discrimination was dropped. It is submitted that this is another example of the claimant making allegations which were unsupportable by evidence,

The claimant had contact with Brian Hutchinson and called him about uniforms but never raised any issue relating to pressure of work, ill-treatment by Fred Kane, or difficulties with warranty work. This omission is striking.

It was mentioned repeatedly that Fred Kane swore in conversation with the claimant on 1^st July. However, the claimant herself admitted that she raised her voice, It is not disputed that the single swear word was not directed at the claimant, Fred Kane at all stages admitted that he used the word, hut explained that the conversation was heated and that he was exasperated because the claimant repeatedly laid blame on her line manager. It is submitted that the use of a single swear word which was not directed at the claimant in a heated conversation in which both parties raised their voices, cannot amount to a breach of contract which was designed or intended to seriously damage the employment relationship.

Having resigned the claimant found work after a break of one week. She is taxiing and working from a taxi depot. She gave evidence that she used her own car for taxiing. She could not produce valid insurance documentation to cover (lie use of her car between July 2011 and February 2012. She claimed she was being paid minimum wage and produced pay slips, and yet also admitted to receiving cash for fares.

It is submitted that the claimant’s own evidence is that she has been taxiing without insurance for 7 months and earning more than is declared on her pay slips.

Right to Statement of Employment Particulars:

1) An employer is required to provide an employee with a statement of particulars 0f employment: article 33

2) If a claimant takes specific proceedings before an industrial tribunal (of which unfair dismissal is one) and finds in favour of the employee. then if the respondent has failed to provide a written statement the tribunal shall award the minimum amount (2 weeks), and may award the higher amount (four weeks).

The respondent has given evidence that a statement was sent out to the claimant. She has denied receiving one. It is simply a matter of credibility. It is submitted that if the claimant did not receive a statement of her terms and conditions then this was due to an administrative oversight. Had the claimant requested a statement one could

have been provided.

A tribunal should award 2 weeks wages if there has been a failure to provide a statement.

Only if the tribunal considers it just and equitable may the tribunal award 4 weeks Wages. As in all matters of discretion, the tribunal should set out its reasons for considering it just an equitable to award the higher amount.

The respondent directs the tribunal to the Following considerations:

• There is no evidence that the claimant was unaware of any of the terms of her contract of employment.

• The claimant never requested a statement during her employment, or during her grievance.

• In the circumstances, this is an issue which has only been raised for the first time in the ET1 after employment ceased.

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Cochrane v Roadside Motors Coleraine Limi... [2012] NIIT 02145_11IT (08 June 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/2145_11IT.html Cite as: [2012] NIIT 02145_11IT, [2012] NIIT 2145_11IT

Industrial Tribunals Northern Ireland Decisions