Cowan v  The Mace [2008] NIIT 152_07IT (25 January 2008)

THE INDUSTRIAL TRIBUNAL

							CASE REF:  1521/07

CLAIMANT:			Adrienne Cowan

RESPONDENTS:		1.	The Mace
2.	The Mace (Owner – Philip Brannigan)
3.	The Mace (Manager – Barbara Hilden)

DECISION

The correct Respondent is Phillip Brannigan t/a Mace Sandy Row.  The title of the second Respondent shall be amended accordingly.  The claim against the first and third Respondents is dismissed, as they never employed the Claimant.

The Claimant’s claim is dismissed in its entirety as she was not unfairly dismissed by the Respondent on 19 July 2007.  Moreover, nothing in the Respondent’s conduct can be considered to amount to the constructive dismissal of the Claimant on 19 July 2007 or at any other time.

Constitution of the Tribunal:

Chairman:		Mr M G O’Brien

Members:		Mr Hesketh
			Mr Miller

Appearances:

The Claimant did not appear and was not represented.

Mr Phillip Brannigan appeared for the Respondents.

Sources of Evidence

Mr Phillip Brannigan gave evidence for the Respondents.

The Contentions of the Parties

1.	By her claim, presented on 9 August 2007, the Claimant asserted at section 2.1 that she had been employed by the second Respondent.  At section 6.1 of the claim, the Claimant asserted she had been employed by the second Respondent from 9 June 2006 until 19 July 2007.  At section 6.2, the Claimant outlined her duties as an evening supervisor in the Mace shop in Sandy Row, Belfast.  Section 7 of the claim is to be completed by claimants complaining of unfair dismissal or constructive dismissal.  The Claimant completed section 7 of the claim form.  Sections 8-11 of the claim form are to be completed by claimants complaining of other complaints.  The Claimant left sections 8-11 of the claim for uncompleted, and therefore has not sought to make any complaints of unlawful discrimination (section 8), redundancy payment (section 9), other payments {including holiday pay} (section 10) or any other complaint (section 11).

2.	At section 7.5 of the claim, the Claimant asserted she had been appointed to a new part-time permanent job with effect from 2 August 2007.  At section 7.1, the Claimant outlined the basis of her claim;

On Thursday 19th July 2007 I was dismissed over the phone by Miss Barbara Hilden (Sic.) after she was instructed to do so by Mr Phillip Brannigan.  The dismissal was conducted after no previous verbal or written warnings.  The reason for my dismissal as best to my knowledge took place due to a text message that was received by Miss April Murray on the 19th July.  I had sent this message to a work colleague explaining that I did not wish to work with Miss Hilden that evening, because of prior treatment.  In the text message I used an unprofessional term of Miss Hilden in which I called her a ‘horse’.  I am aware that the term should not have been used to describe my superior.  However it was communicated in a private message.  This message was either forcefully read or handed over to Miss Hilden and Mr Brannigan and because of the inappropriate term, I was contacted by Miss Hilden later that day and dismissed on the telephone.  Miss Hilden said that she would not be referred to as a ‘horse’ and that she accepted my resignation.  I feel that this was the only reason for my dismissal, as I have received no verbal or written warnings before.  Along with my actual dismissal there have been a number of other unprofessional practices I have been subjected to during my time in the Mace.  I had been asked to assist in issues regarding the Mace, outside working hours, so regularly that I feel this almost bordered on harassment.  I was told that I would not receive any paid holidays and any days off I would have to get covered myself.  I was also told that I would have to work shifts that were not my responsibility to cover – I had intended to leave the Mace two months prior to the dismissal because of what I feel was poor treatment by my superior in which I was ignored while my colleagues were spoken to.  I was belittled and disrespected.  My employer made me feel unappreciated when I had always worked hard and thoroughly as I needed the part-time work to contribute to my household.  I was offered a pay increase and new responsibilities in late May.  However, this did not improve my situation at work.  Subsequently, before my dismissal, I received my pay four days late, which did happen quite regularly.  I was also verbally abused by my employer for a mistake I had nothing to do with.  Miss Caroline Bell and myself were called ‘dickheads’ and ‘stupid’ outside the front of the shop in full view of the public by Mr Brannigan.  The language used was most inappropriate for the workplace.  I therefore feel that my treatment in the Mace was inappropriate while working there and my dismissal unfair and unjustified. 

3.	The Respondents’ responses were presented on 20 September 2007.  At section 4.1 of the response, the Respondents confirmed the Claimant’s dates of employment as correct.  At section 6.2 of the response, the Respondents stated;

	On Thursday 19th July 2007, Miss Hilland was informed by a junior member of staff that [the Claimant] had asked her to work her shift on Friday 20th July.  Miss Hilland contacted [the Claimant] by phone to inform her that even though she had been previously warned that this was not to happen, she had again asked a junior staff member to cover her shift.  As and from 19th July 2007 both [the Claimant] and Ms Bell (other evening supervisor) were told they could only swap shifts with each other.  Miss Hilland informed [the Claimant] she would allow the arrangement for the 20th to remain on this occasion.  Miss April Murray contacted [the Claimant] asking her to work her shift that night (19th July) as she was covering her shift on 20th July.  Mr Brannigan was on the shop floor when Ms Murray received a text while working.  As this was against company policy, Mr Brannigan told her to put the phone away.  Ms Murray was visibly shocked by the text received and informed Mr Brannigan it was in fact work-related and passed it to him.  The text was from [the Claimant] stating she would not be working the shift that night for her as she was “fighting with horsey”.  She also stated in the text that Ms Hilland would not be telling her when to work and she was going to ring and “tell her to shove her job up her horsey hole”.  Mr Brannigan showed Miss Hilland the text.  Miss Hilland was embarrassed, hurt and upset that such language had been used by [the Claimant] in her supervisory role to a junior member of staff.  Miss Hilland contacted [the Claimant] by phone and told her she did not appreciate being referred to as a horse, and if [the Claimant] wanted, she would accept her resignation.  Although [the Claimant] states it was a private message, it was in fact during working hours and relating to an employment issue.  [The Claimant] would not have been working with Miss Hilland as stated. On the evening of 19th July 2007, Mr Brannigan and Miss Hilland were having a meeting to discuss disciplinary procedure relating to the gross misconduct behaviour of [the Claimant] when her father arrived on the premises demanding her wages.  Mr Cowan then proceeded to verbally insult Miss Hilland.  In response to Ms Cowan’s statement that she did not receive any warnings;

	29 June 2007

	Mr Brannigan spoke to both [the Claimant] and Miss Bell regarding procedures not being followed on a shift they had both been working, including newspapers not being returned correctly resulting in Mr Brannigan losing credits, and new end-of-day till procedures not being adhered to.  Mr Brannigan informed both evening supervisors that such misconduct would not be tolerated.

		3 July 2007

	Miss Hilland contacted [the Claimant] by telephone after she had swapped an evening shift for a morning shift resulting in a new junior member of staff being alone in shop from 3.00pm-5.00pm.  Again Miss Hilland informed her that such behaviour would not be tolerated. 

		16 July 2007

	Mr Brannigan gave [the Claimant] a verbal warning after it was brought to our attention that on Tuesday 10th July 2007 [the Claimant] had asked Ms Robinson, Miss Bell and Miss Murray to cover an hour in her evening shift to allow her to go to the beauticians to have her eyebrows waxed…

	In response to [the Claimant’s] statement that she was belittled, disrespected and made to feel unappreciated;

	During the Summer 2006, [the Claimant] requested extra hours, during holidays to allow her to save for a deposit on a car.  Mr Brannigan accommodated [the Claimant] in this request.  In Autumn 2006, [the Claimant] came to Mr Brannigan in desperation because she had told her father she had saved up for a car but had in fact spent the money.  Mr Brannigan very willingly provided her with an interest-free loan to be paid back over a period of weeks, so her father would not find out.  [The Claimant] had also contacted Miss Hilland via text at 10.00pm on Friday 6th July 2007 informing her that she would be leaving her shift on Saturday 7th July 2007 2 hours early to go to the hairdressers.  This was allowed.  At no time did Mr Brannigan use the inappropriate language as stated by [the Claimant].  In regards to not receiving holiday pay, at no time was Ms Cowan told this would not be happening and in fact paid holidays due in full at the end of employment.

The Findings of Fact Made by the Fair Employment Tribunal

4.	At all relevant times, the Claimant was employed by Mr Phillip Brannigan Trading As Mace Sandy Row.  The title of the second Respondent shall be amended accordingly.  The Claimant was never employed by the first or third Respondents, and has no claim against them.  Accordingly, pursuant to Rule 10(2) (1) of the 2005 Rules, the first and third Respondents are dismissed from the claim.

5.	The Claimant’s claim is one of unfair dismissal.  She has not presented one of unlawful deductions from wages in the form of unpaid holiday pay.  The Claimant was employed by Philip Brannigan T/A Mace Sandy Row from 9 June 2006 until 19 July 2007.  From the evidence of Mr Brannigan, which the Claimant did not appear to contest, the Tribunal finds that in mid-May 2007, the Claimant intimated to her employer that she was considering leaving his employment because other employees were not pulling their weight.  The Claimant had a meeting on 28 May 2007 with Ms Barbara Hilland (Respondent Accounts and Personnel Manager).  At that meeting, the Claimant was promoted.  Thereafter, it was discovered by the Respondent that the Claimant was not working all her shifts, and was in fact getting junior members of staff to do the shifts for her.  Ms Hilland brought this matter to Mr Brannigan’s attention in early June 2007.  Mr Brannigan instructed Ms Hilland to speak to the Claimant and warn her that this behaviour was not to happen again as it was defeating the entire purpose of having an evening shift supervisor.  Ms Hilland then spoke to the Claimant and told her that this behaviour would not be tolerated, and that if it recurred she could lose her position in the shop.  Otherwise, the Claimant was treated well and fairly throughout her employment with Mr Brannigan, and was – in fact – promoted in mid-May 2007 to the position of evening supervisor of the shop.  The Tribunal saw in evidence the written terms and conditions of employment given to Mr Brannigan’s employees, and also saw in evidence the evening rosters the Claimant should have worked.  The Claimant did not work a number of such rostered shifts from 15.00 – 21.00 hours on a Monday, which were unauthorised absence which, pursuant to the terms and conditions of employment, is potentially a gross misconduct offence.  The Claimant did not take a grievance during the entire course of her employment, and did not grieve or appeal her warnings administered on 29 June 2007 and 3 July 2007. 

6.	On or about 19 July 2007, Mr Brannigan discovered that the Claimant had asked April Murray to cover the shift of a colleague.  The Claimant sent a text message to Ms Murray, which was sent to Ms Murray during working hours and concerned a work matter.  Mr Brannigan was shown the text message.  The text said that the Claimant had been fighting with “horsey and I’m going to tell her to shove her job up her horsey hole”.  The text continued that the Claimant was coming over to the shop to resign her employment.  Mr Brannigan then showed the text to Ms Hilland and told her that, in his opinion, it was totally unacceptable behaviour and that she should speak to the Claimant as soon as possible.  Because she deals with all personnel matters, Ms Hilland telephoned the Claimant in Mr Brannigan’s presence and Ms Hilland told the Claimant that she did not appreciate being referred to as a horse.  Ms Hilland informed the Claimant that if she wished to resign her position, that resignation would be accepted by her employer.  The Claimant hung up.  Thereafter, a meeting was convened on 19 July 2007 between 6.00pm – 6.30pm whereat Ms Hilland and Mr Brannigan discussed the situation regarding the Claimant.  Mr Brannigan never reached a decision to dismiss the Claimant, and never instructed the Claimant that she was dismissed either in person or via Ms Hilland.  In the course of the meeting on 19 July 2007, the Claimant’s father came into the shop and asked Mr Brannigan for the Claimant’s wages.  Mr Brannigan asked Mr Cowan if he knew what had happened earlier.  The Claimant’s father said that he did not care what had happened earlier, he just wanted the Claimant’s wages.  Then the Claimant’s father referred to Ms Hilland as a “fucking ugly cunt who should be running up and down Sandy Row with a cart on her back”.  Moreover, the Claimant’s father said that Ms Hilland was the “ugliest woman he had ever seen” and said that all the customers and staff in the shop hated her.  The Claimant’s father then left the shop without the outstanding wages.  Mr Brannigan assumed from this conduct that the Claimant had resigned and would not be coming back to Mr Brannigan’s employment.  The Claimant had no further contact with her employer after that date, either orally or in writing.  On 21 July 2007, Mr Brannigan sent the Claimant all her outstanding wages and holiday pay. 

7.	On 4 September 2007, the parties were each sent notice of hearing of the proceedings on 10 January 2008.  The Claimant did not seek to have the hearing on 10 January 2008 adjourned.

The Issue to be Decided

8.	The issue to be decided is whether the Claimant was unfairly dismissed by the Respondent on 19 July 2007, or whether her employer’s conduct amounted to unfair constructive dismissal on that date. 

Applicable Law

9.	The right not to be unfairly dismissed is provided by Article 126 of the Employment Rights (Northern Ireland) Order 1996 [“the 1996 Order”]. 

10.	The right not to be forced to terminate a contract of employment by reason of the employer’s conduct is provided by Article 127(1) (c) of the 1996 Order.

11.	Rules 27(5)-(6) of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 [“the 2005 Rules”] provide;

(5)	If a party fails to attend or be represented (for the purpose of conducting the party’s 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.

(6)	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. 
The Decision of the Tribunal

12.	Pursuant to the obligation imposed on it by Rules 27 (5)-(6) of Schedule 1 to the 2005 Rules, the Tribunal wishes to emphasise that it has considered all the assertions in the claim and the response, and all the evidence and submissions made to it in the course of the hearing.

13.	The second-named Respondent’s title is amended to Mr Phillip Brannigan, T/A Mace Sandy Row.  The first and third Respondents never employed the Claimant at any time, and accordingly are dismissed from these proceedings.

14.	The Claimant’s claim is one of unfair dismissal contrary to Article 126 of the 1996 Order.  The Claimant was not felicitous in carrying out the duties of her post as evening supervisor in the Respondent’s shop in Sandy Row, and had been warned about this on 29 June 2007 and 3 July 2007.  On 19 July 2007 the Claimant sent a text message to Ms April Murray in the most offensive and objectionable of terms.  At section 7.1 of the claim, the Claimant described her use of language as “unprofessional”.  The Tribunal considers her choice of language in the text message as going far beyond the merely unprofessional, and to be offensive, abusive and foul towards a fellow employee and her superior, Ms Hilland.  In the most repugnant of terms, the Claimant indicated that she was coming to the shop to resign her employment.  The Tribunal is mindful that this text was not intended to be communicated directly with or to the Claimant’s employer.  However, the Tribunal also found that it was, without duress, shown to the Claimant’s employer, who then arranged for a direct communication with the Claimant via Ms Hilland.  Ms Hilland, in the employer’s presence, telephoned the Claimant and advised her that if she wished to resign then that resignation would be accepted.  The Claimant did nothing to resile from her position, and did not seek to retract from a position of resignation.  Indeed, the subsequent events of that evening from 6.00pm-6.30pm allow for the reasonable inference to be drawn that, by sending her father to seek her outstanding wages, the Claimant was seeking to affirm the attitude she had struck of an employee who was resigning her employment.  The Claimant’s wages and all other outstanding monies were forwarded to her on 21 July 2007.  At no time during or after 19 July 2007 did the Claimant seek to recover from a position where she had resigned her employment by words and deeds originating from her.

15.	The Tribunal can find nothing in the actions of the Respondent that are reasonably capable of amounting to a breach of Article 127(1)(c) of the 1996 Order, and determines that the Claimant was not constructively dismissed on 19 July 2007, or at any time thereafter.

16.	The Tribunal has found that at no time was the decision taken by the Respondent to dismiss the Claimant.  Accordingly, there is no ground upon which a Tribunal reasonably applying the provisions of Article 126 of the 1996 Order could find the Claimant to have been unfairly dismissed.  Resoundingly, we determine that the Claimant was not unfairly dismissed by the Respondent, as asserted by the Claimant.

17.	By a unanimous decision, the Tribunal now dismisses the entirety of the Claimant’s claim.

18.	No other Order is now made. 

Chairman:

Date and Place of Hearing:	10 January 2008, Belfast.

Date Decision Recorded in Register and Issued to the Parties