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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Fournadjieva v Terence O'Neill T/A Glenfresh ... [2009] NIIT 1347_08IT (27 May 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/1347_08.html Cite as: [2009] NIIT 1347_8IT, [2009] NIIT 1347_08IT |
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The unanimous decision of the tribunal is that the claimant has failed to establish her claim of unfair dismissal. Her claim is therefore dismissed in its entirety.
Constitution of Tribunal:
Chairman: Mr T Browne
Members: Ms N Wright
Mr B Heaney
The Issue
The claimant’s employment with the respondent commenced at the earliest in November 2007 and was terminated on 26 June 2008. It was common case therefore that the claimant did not have the requisite period of continuous employment for the purposes of the Employment Rights (Northern Ireland) Order 1996 (“The 1996 Order”). That period is one of 12 months continuous employment. The claimant in this case however asserted that she had been dismissed by the respondent in contravention of Article 135 of the 1996 Order, Article 135(1) stating:
“An employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee – (a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or (b) alleged that the employer had infringed a right of his which is a relevant statutory right.”
It is immaterial for the purposes of paragraph 1 –
Whether or not the employee has the right; or
Whether or not the right has been infringed
But, for that paragraph to apply, the claim to the right and that it has been infringed must be made in good faith.”
3. The statutory rights which apply to Article 135 include at Article 33 a requirement for an employer to give to an employee a written statement of particulars of employment: “shall give to the employee a written statement of particulars of employment.”… the employer
It is the claimant’s case that since the time that she started working for the respondent she had persistently to ask him for a contract of employment. She also stated that she had been under the impression when she accepted the employment that she would be working processing mushrooms rather than the assorted vegetables which she ended up working with. It was denied by the respondent that she had been employed to do any specific work, and it was clear to the Tribunal from the documentation produced by the respondent, which supplies prepared vegetables to the catering trade throughout Northern Ireland and in parts of the Republic of Ireland that mushrooms were included in the type of work they did. It was denied by the claimant that any mushroom processing work was carried out where she worked, in effect stating that she had some how been misled into accepting this type of employment in the first place.
4. When the respondent did provide the claimant with a copy of her terms and conditions of employment, she continued to query the validity of this as a bonifida contract of employment. Article 33 of the 1996 Order states at sub-paragraph 3 “the statement shall contain particulars of –
The names of the employer and employee.
The date when the employment began, and
The date on which the employees period of continuous employment began.”
There are other requirements under paragraph 4 relating to matters such as the rates of pay and other terms of conditions and entitlement to holidays. The claimant even at the Tribunal continued to query the validity of the nature of these terms and conditions of employment as set out in the document provided to her by the respondent on or around 18 January 2008.
5. The respondent made the case that the claimant was dismissed only on the ground of a redundancy situation. The respondent provided evidence to the Tribunal, which was largely unchallenged by the claimant, that there was a significant downturn in his business due partly to aggressive competition price war with a rival company which the respondent could not afford to compete with and therefore lost a number of customers. Orders were also down due to a downturn in tourist numbers because of poor weather. The business was struggling because turnover and profits were down and various plans for extensions to the premises had to be shelved because of lack of money. The respondent stated that the major cost from their turnover is labour and had to announce to the workforce in early May after a tea break that redundancies were likely.
The respondent made the case that the claimant during a casual conversion had indicated to Mr O’Neill, the owner of the respondent company, that it was not her long term intention to stay in Ireland, but that she would travel, as she had done in the past. The claimant roundly denied this conversation ever took place, but the Tribunal is satisfied on balance, that such a conversation did take place, albeit in the most general terms, but still giving Mr O’Neill the impression that the claimant was not intending to stay long term with his company. One of the criteria for redundancy selection was stated by the claimant to be the likelihood of people staying long term with the business. It has to be remembered that the claimant, by virtue of her lack of continuous employment, did not fall within the protection of the 1996 Order regarding entitlement to fair selection for redundancy. The point in this case was whether the claimant was dismissed under the guise of redundancy as an excuse to get rid of her because of her persistence in seeking provision of the terms of the contract to which she was statutorily entitled.
It was noted by the Tribunal during the hearing that the claimant readily made very serious allegations against the respondent, for example, in effect asserting that the copied P45 documents produced by the respondent relating to the other personnel, who were dismissed under this redundancy, were forgeries. She was forced to retract this when the originals were produced. The claimant also asserted, without any supporting evidence, that there was something untoward about the respondent’s denial of mushroom processing at their premises, because she claimed in effect that to do so would be without the requisite certificates from the Health Authorities.
The Tribunal is not satisfied by the explanation of the respondent that the claimant was dismissed solely on the grounds of redundancy. Whilst there may well have been a redundancy situation, it was clear from the evidence before the Tribunal that persons who were laid off were subsequently re-employed. The respondent stated to the Tribunal that it had made valiant attempts to contact the claimant in order to offer her job back, but the Tribunal is not satisfied that such was the case.
That said, however, the tribunal has to be satisfied on the balance of probabilities that the claimant was dismissed for assertion of a statutory right. The Tribunal has concluded that the claimant may well have been dismissed for persistently querying the terms of the contract and the nature of employment in processing vegetables other than mushrooms, but otherwise is not satisfied that the respondent has breached the provisions of Article 135 of the 1996 Order. The Tribunal is satisfied that the contract produced to the claimant, whilst brief, fully complies with the conditions imposed upon an employer by virtue of Article 1 of Article 33. The details provided in that contract are sufficiently clear as to the provisions outlined above. In order for the respondent to be in breach of Article 135, the claimant’s assertion that any such right has been infringed must be made in “good faith”. The Tribunal has concluded that the claimant’s persistence in querying the validity of the documents which she is provided with crossed the line from good faith into a battle of wills with the respondent to get her own way. It was noted by the Tribunal that the claimant made no effort at the material time to familiarise herself with what was actually required either through legal advice or assistance from other bodies such as the Citizen’s Advice Bureau.
The Tribunal has therefore concluded that it is more likely than not that the respondent dismissed the claimant in a genuine redundancy situation but for the reason that she was in effect making a nuisance of herself, but that as of January 2008, the respondent had fully complied with its statutory responsibilities. The Tribunal therefore unanimously concludes that the claimant’s claim to the statutory rights and her assertion that it had been infringed were not made in good faith. The claimant was not therefore unfairly dismissed and her claim must fail in its entirety.
Chairman:
Date and place of hearing: 2 March 2009 at Belfast
Date decision recorded in register and issued to parties:
