THE INDUSTRIAL TRIBUNALS

CASE REF:	588/05

CLAIMANT:			Laura Charlotte Ann White		

RESPONDENT:		M Care Ltd		

DECISION

The unanimous decision of the tribunal is that the claimant’s claim that she was unfairly dismissed and her claims for breach of contract and her health and safety claim under Article 132 of the Employment Rights (Northern Ireland) Order 1996 are dismissed. 

Constitution of Tribunal:

Chairman:		Ms Crooke

Members:		Mr McAuley
			Mr Gray

Appearances:

The claimant did not appear and did not instruct any representative to appear on her behalf.

The respondent was represented by Miss S Owens of Brangam, Bagnall & Co., Solicitors.	

1.	As the claimant was not present and was not represented the tribunal determined her case under the provisions of Regulation 27(5) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

2.	The claim of the claimant was that she had been unfairly dismissed and that her dismissal was a breach of contract.  The claimant also argued that her dismissal should be regarded as a Health & Safety dismissal under Article 132 of the Employment Rights (Northern Ireland) Order 1996.  However, the claimant did not attend to explain how her claim fell within this piece of legislation, and accordingly, the tribunal dismisses this from its consideration of her originating claim.  The respondent denied that the claimant had been unfairly dismissed but said that she had been dismissed for failures to attend during her probationary period which the 

respondent considered gross misconduct and for which the respondent summarily dismissed her on 3 January 2005.

ANALYSIS OF EVIDENCE

3.	As the claimant did not attend the hearing, the tribunal preferred the evidence given by the respondent which was supported by its statement in its response dated 20 April 2005 to the claimant’s claim.

THE RELEVANT LEGISLATION

4.	The relevant legislation for the purposes of this claim is Article 126 and 127 of the Employment Rights (Northern Ireland) Order 1996.  The tribunal has previously discounted the provisions of Article 132 from its deliberations, as the claimant did not attend to explain how her case fell within the ambit of this Article.

FACTS FOUND

5.	(i)	The claimant worked for the respondent as a carer/driver.

(ii)	The claimant had a poor attendance record and had been dismissed for gross misconduct grounded on her poor attendance record during her probationary period of employment.

(iii)	After the claimant’s employment was terminated by the respondent the respondent was informed that the claimant had shingles and a frozen shoulder.  

(iv)	Had the respondent been informed of this by the claimant prior to her dismissal and at the appropriate time, the respondent would not have had any difficulty with allowing the claimant time off to recuperate as it operates a business involved in the care of very elderly and vulnerable people.  Both illnesses allegedly claimed by the claimant would have been illnesses in connection with which the claimant would simply not have been permitted to work had she disclosed them to the respondent.

(v)	The tribunal accepted that the respondent denied receiving any calls to notify the respondent of the claimant’s illness contrary to what the claimant said in her originating claim.  In any case, these calls being by telephone only would not have served as compliance with the respondent’s sickness and absence notification procedure.

CONCLUSIONS OF THE TRIBUNAL

6.	The tribunal concludes that in the circumstances outlined above the claimant was not unfairly dismissed but was fairly dismissed by the respondent as a result of her gross misconduct in and around her failure to attend for work in the period from October 2004 to 3 January 2005.  The claimant has not explained how she is entitled to claim that her contract of employment was breached.  If it is the case that 

she is claiming one weeks notice pay, then the tribunal also dismisses this claim on the grounds that as a result of her gross misconduct the claimant forfeited her claim to notice pay.

COSTS

7.	At the conclusion of the hearing Miss Owens applied for an Order of costs by the tribunal against the claimant in the sum of £250.00, on the ground of her unreasonable behaviour contrary to Regulation 40(3) of the Industrial (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.  The tribunal has no hesitation in characterising the behaviour of the claimant in failing to attend the hearing or to notify the respondent in advance that she did not intend to pursue her claim on the day of hearing, as unreasonable.  It has been necessary for the respondent to attend to give evidence and this could have been avoided.  The tribunal has noted that there is no information available in connection with the ability of the claimant to pay the award of £250.00 in costs, but nonetheless, makes the award as it considers that it is reasonable and fair that the claimant should pay for the costs of the respondent in attending the hearing before the tribunal.   	

Chairman:

Date and place of hearing:	30 May 2006, Belfast.	

Date decision recorded in register and issued to parties: