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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Donald v Belfast Charitable Society [2011] NIIT 02801_10IT (30 March 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/02801_10IT.html Cite as: [2011] NIIT 2801_10IT, [2011] NIIT 02801_10IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2801/10
CLAIMANT: Janet Donald
RESPONDENT: Belfast Charitable Society
DECISION
The decision of the tribunal is to dismiss the claimant’s breach of contract claim and to order the claimant to pay the respondent the sum of £322.00 + VAT by way of costs (Total: £386.40).
Constitution of Tribunal:
Chairman (Sitting alone): Mr Uel A Crothers
Appearances:
The claimant did not appear and was not represented.
The respondent was represented by Miss Blair, Solicitor of J Blair Employment Law Solicitors.
THE CLAIM
1. The claimant claimed that the respondent had breached her contract of employment. The respondent denied any such allegation and made an application for costs against the claimant.
THE ISSUES
2. The issues before the tribunal were as follows:-
(i) Whether the claimant was entitled to payment of a sum in respect of breach of contract.
(ii) Whether the respondent was entitled to costs.
3. Rule 27 of the Industrial Tribunal Rules of Procedure 2005 states as follows:-
“(5) If a party fails to attend or to 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 at paragraph (5), it shall first consider any information in its possession which has been made available to it by the parties.
(7) At a hearing under Rule 26 A Tribunal may exercise any powers which may be exercised by a Chairman under these Rules”.
SOURCES OF EVIDENCE
4. In accordance with Rule 27 the tribunal considered the information before it. It also heard evidence on behalf of the respondent from its manager, Marlene Featherstone. In addition, the tribunal considered documentation referred to it by the respondent’s representative.
FINDINGS OF FACT
5. 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:-
(1) The claimant was employed by the respondent from 29 April 2002 until 9 September 2010 being the effective date of her resignation. The notice provision in the claimant’s contract states that after one month’s service she is required to give the respondent one month’s notice to terminate her employment. The claimant’s correspondence of 8 September 2010 which was handed to Marlene Featherstone on the morning of 9 September by another member of staff, stated as follows:-
“52 Forthill Park
Newtownabbey
Co Antrim
N Ireland
BT36 6QX
8th September 2010
Private and Confidential
Dear Marlene
Please accept my resignation from today.
My date of leaving will be Friday, 1st October 2010, which includes my four days annual leave owed to me.
Yours sincerely
Janet Donald”
(2) The claimant forwarded further correspondence to Marlene Featherstone on 14 September 2010 which states as follows:-
“52 Forthill Park
Ballyduff
Newtownabbey
Co Antrim
BT36 6QX
14th September 2010
Private and Confidential
Dear Mrs Marlene Featherstone
Upon receiving advice from the RCN (Royal College of Nursing) and the CAB (Citizens Advice Bureau) and upon reviewing my copy of my contract I am entitled to 4 weeks notice paid which will take me up until the 7th October 2010 in addition to pay for holiday accrued up until my resignation on 9th September 2010 as dictated by yourself.
I will be in touch in the next couple of days regarding the pension scheme and accessing that.
Yours faithfully
Janet Donald”
(3) Marlene Featherstone replied to the claimant on 15 September 2010 as follows:-
“15th September 2010
Janet Donald
52 Forthill Park
Newtownabbey
Co Antrim
BT36 6QX
Dear Janet
Thank you for your letter dated 14th September 2010. Firstly, I am some-what surprised that you state that I dictated your resignation. Your resignation was clearly at your request, which you confirmed in writing in a letter dated 8th September 2010, which I duly accepted in writing on the 9th September 2010.
As previously informed, your final pay statement will be forwarded to your home address, unfortunately as payroll has already balanced for September you will not receive your final pay until October.
As per your contract, this will include payment in lieu of notice and holiday pay up until the 7th October 2010.
Your pension provider will contact you directly once they have received confirmation that the Belfast Charitable Society no longer employs you.
I have enclosed your September 2010 pay statement and in October 2010, you will receive a further 3 weeks pay in lieu of notice and 12 hours accrued leave.
If you require any further information on this or indeed any other pay related matter please do not hesitate in contacting Payroll.
Yours sincerely
Marlene Featherstone
Home Manager”
The tribunal is satisfied that the payments were made to the claimant in accordance with the above correspondence.
(4) The tribunal considered the evidence of Marlene Featherstone pertaining to a conversation with the claimant on 9 September 2010 and is satisfied that the claimant chose to resign on that occasion given the envisaged investigation into certain allegations against her. The claimant’s original claim of constructive dismissal was rejected by the tribunal as although the claimant had put her complaint in writing to the respondent on 21 November 2010 she had not waited 28 days prior to presenting her claim to the Office of the Tribunals and the reasons given by her at paragraph 6.4 of the claim form for not doing so, did not come within the exceptions outlined in the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004.
(5) The respondent’s Solicitor forwarded correspondence “without prejudice save as to costs” to the claimant on 6 January 2011. The respondent waived privilege in respect of this correspondence before the tribunal. It reads as follows:-
“STRICTLY PRIVATE & CONFIDENTIAL
TO BE OPENED BY ADDRESSEE ONLY
Mrs Janet Donald
52 Forthill Park
Newtownabbey
County Antrim
BT36 6QX
Our Ref: 6-15-0/JSB/LO
6th January 2011
WITHOUT PREJUDICE SAVE AS TO COSTS
Dear Mrs Donald
Re: Janet Donald -v- Belfast Charitable Society
Case Ref No: 02801/10IT
We refer to the above matter and would ask you to note that we are instructed by Belfast Charitable Society, to represent it in relation to same. We have received a copy of a letter addressed to the Industrial Tribunal Office from the representative whom you named in your claim form. This indicates that at present neither she nor the RCN are in a position to represent you in relation to your Tribunal claim. As a result of this correspondence we are therefore electing to write to you directly until such time as the issue of your representation is clarified. Any correspondence which you send in relation to this matter should be sent to ourselves and not to our client.
We note that your claim of Unfair (Constructive) Dismissal was rejected by the Industrial Tribunal on the grounds that you did not wait the prerequisite 28 days between complaining to the Respondent and presenting your claim to the Tribunal office. Our client has informed us that no such letter of grievance has been received by them. Our client specifically denies receiving a letter dated the 21st November 2010 as alleged at paragraph 6.3 (c) of your Originating Application. In accordance with the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004, a Claimant must put their complaint in writing to the Respondent before issuing Tribunal proceedings. We therefore believe that the Tribunal will have no jurisdiction to hear your claim of Unfair Dismissal. We believe your claim therefore is restricted to Breach of Contract.
The Tribunal’s jurisdiction with regard to a claim of Breach of Contract is limited only to determining whether the Claimant was owed any money by the Respondent at the date upon which the Contract of Employment was terminated. As you have received all monies owing from the Belfast Charitable Society, the Respondent has no liability to you in respect of a claim of Breach of Contract. As you are aware you resigned with immediate effect from your employment. You did not give your employer any notice. Your employer is not liable to make any payment to you in respect of a notice period. However, as you are aware the Belfast Charitable Society paid you 4 week’s pay. They were not required to do this either under the terms of your contract of employment or by statute.
For the avoidance of doubt, in respect of your claim, the Tribunal does not have the jurisdiction or power to come to any decision or determination as to whether your contract of employment was terminated in accordance with its terms or not. We state again that the Tribunal’s jurisdiction in a breach of contract case is limited to matters involving any money owed to the Claimant such as pay in lieu of notice, or payment in respect of accrued annual leave. It would be in your interests to take legal advice on this point so that you fully understand the nature of the claim which you have brought.
In view of the foregoing, it is clear that your claim is entirely pointless and without merit. We therefore invite you to withdraw it. We place you on notice that if you do not withdraw it within 14 days of the date of receipt of this letter and the Respondent is successful in its defence (which in our opinion it will be) we are instructed to seek costs against you on the grounds that your claim is vexatious, unreasonable and entirely without merit. Our application for costs will be made in accordance with Regulation 40 (3) of the Industrial Tribunal’s (Constitution and Rules of Procedure) Regulations (NI) 2005. Use will be made of this letter in relation to such application.
We await hearing from you.
Yours faithfully
Judith Blair
J Blair Employment Law Solicitors”
(6) The tribunal was referred to correspondence forwarded to the claimant subsequent to 6 January 2011. This included notices for additional information and discovery forwarded to the claimant on 8 February 2011. The claimant did not reply. The case was listed for hearing for 15 February 2011 and the tribunal was notified in correspondence from the Royal College of Nursing Northern Ireland on 10 February 2011 that it would not be representing the claimant. It also stated that the claimant had moved temporarily to England and gave her new address. A notice of hearing had been forwarded to both parties on 18 January 2011 and, in the claimant’s case, to her address in Newtownabbey, Co Antrim. The claimant did not appear at the hearing on 15 February 2011. The tribunal was made aware of the Record of Proceedings pertaining to the Hearing on 15 February 2011, which included reference to a costs application on behalf of the respondent. Despite having been sent a new notice of hearing on 18 February 2011 to her address in England, the claimant did not communicate with the tribunal to explain why she did not appear either by herself or through a representative at the hearing listed for 24 March 2011. The respondent’s representative made an additional application for costs at the reconvened hearing. Schedules of costs are appended to this Decision.
THE LAW
6. (i) The tribunal’s jurisdiction in respect of breach of contract claims as set out in the Industrial Tribunal’s Extension of Jurisdiction Order (Northern Ireland) 1994.
(ii) (1) Rule 40 of the Industrial Tribunals Rules and Procedure 2005 provides that a tribunal may award costs in favour of a legally represented party. The relevant provisions are:-
(2) “A tribunal or chairman shall consider making a costs order against a paying party where, in the opinion of the tribunal or chairman (as the case may be), any of the circumstances in paragraph (3) apply. Having so considered, the tribunal or chairman may make a costs order against the paying party if it or he considers it appropriate to do so.
(3) The circumstances referred to in paragraph (2) are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived”.
The tribunal also considered Rule 41.
A tribunal’s power to award costs under Rule 40 is discretionary. Moreover, it is a two stage test. The tribunal must ask itself whether a party’s conduct falls within Rule 40(3). If so, it must then ask itself whether it is appropriate to exercise its discretion in favour or awarding costs against that party and the amount to be awarded.
In relation to unreasonable conduct, Harvey on Industrial Relations and Employment Law (“Harvey”) at T 1043, states as follows:-
“Tribunals have a wide discretion to award costs where they consider that there has been unreasonable conduct in the bringing or conducting of proceedings. Every aspect of the proceedings is covered, from the inception of the claim or defence, through the interim stages of the proceedings, to the conduct of the parties at the substantive hearing. Unreasonable conduct includes conduct that is vexatious, abusive or disruptive. When making a costs order on the ground of unreasonable conduct, the discretion of the tribunal is not fettered by any requirement to link the award causally to the costs incurred as a result of the conduct that has been identified as unreasonable (McPherson v BNP Paribas (London Branch) [2004] EWCA Civ 569, [2004] ICR 1398; Salinas v Bear Stearns International Holdings Inc [2005] ICR 1117, EAT). In McPherson, Mummery LJ stated (at para 40): ‘The principle of relevance means that the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that is not the same as requiring [the receiving party] to prove that specific unreasonable conduct by [the paying party] caused particular costs to be incurred.’”
CONCLUSIONS
7. (i) Having considered the evidence, the facts as found, together with the relevant rules and authorities, the tribunal is satisfied that the claimant has no basis for a breach of contract claim and her claim is accordingly dismissed.
(ii) The tribunal is satisfied that the claimant has in conducting the proceedings acted unreasonably. However the tribunal is not persuaded that costs should be awarded against the claimant in respect of the hearing on 15 February 2011. It is however satisfied that the respondents are entitled to costs in the sum of £322.00 + VAT for preparation work and attendance at the hearing on 24 March 2011 (Total: £386.40).
Chairman:
Date and place of hearing: 24 March 2011, Belfast.
Date decision recorded in register and issued to parties:
J.Blair
Employment Law
Solicitors
IN THE OFFICE OF INDUSTRIAL TRIBUNALS &
THE FAIR EMPLOYMENT TRIBUNAL
Second Floor, Forsyth House,
Cromac
Square,
Belfast
8T2 8LA
PHONE: 028 9092 3778 FAX: 028 9092 3779
Email:
[email protected]
www: blairemployment.com
Case Ref No: 02801/1OIT
Between:
Janet
Donald Claimant
-and-
Belfast Charitable Society
Respondent
SCHEDULE OF COSTS
Attendance at First Hearing
15/02/2011
10 Units =
1 Hour @ £140.00
per hour =
£140.00
(6 Minutes
=
1 Unit)
Preparation Work
From
16/02/2011 to 24/03/2011
(Between First and Second Hearing Date)
3 Units = 0.3 @ £140.00 per hour £42.00
Attendance at Hearing
(24th
March
2011)
20 Units = 2 Hours @ £140.00 per hour £280.00
Sub-Total
£462.00
VAT @ 20% £92.40
Total
£554.40
Judith
Blair BA. (MOD)
Rachel Richardson L.LB.
J.Blair
Employment Law
Solicitors
IN THE OFFICE OF INDUSTRIAL TRIBUNALS &
THE FAIR EMPLOYMENT TRIBUNAL
Second Floor, Forsyth House,
Cromac
Square,
Belfast
8T2 8LA
PHONE: 028 9092 3778 FAX: 028 9092 3779
Email:
[email protected]
www: blairemployment.com
Case Ref No: 02801/10IT
Between:
Janet
Donald Claimant
-and-
Belfast Charitable Society
Respondent
SCHEDULE OF COSTS
Preparation Work
From 06/12/2010 to 15/02/2011 (First
Hearing date)
76 Units =
7.6 Hours @ £140.00 per hour = £1,064.00
(6 Minutes
=
1 Unit)
Preparation Work
From 16/02/2011 to 24/03/2011 (Second Hearing Date)
3 Units =
0.3 @ £140.00 per hour £42.00
Attendance
at Hearing
(24th March 2011)
20 Units =
2 Hours @ £140.00 per hour £280.00
Sub-Total
£1386.00
VAT @ 20% £277.20
Total £1,663.20
.Judith
Blair BA. (MOD)
Rachel Richardson [LB.
Case Bill Of Costs
Client
name Belfast Charitable Society
Clifton House
2 North Queen Street
Belfast
Antrim
BT15 1EQ
Our reference 6—1 5—0
Details Janet Donald —v— Belfast Charitable Society — claim
for constructive dismissal
Date 23/03/2011
|
Date |
Item |
Units Value |
|
|
06/12/2010 |
Tel out to K Brown |
2 |
28.00 |
|
20/12/2010 |
Attendance in to take instructions |
20 |
280.00 |
|
22/12/2010 |
Letter out to client re NOA |
1 |
14.00 |
|
22/12/2010 |
Drafting notice of appearance |
5 |
70.00 |
|
23/12/2010 |
Email out to Client |
1 |
14.00 |
|
04/01/2011 |
Tel out to Client and Tel in from Client |
1 |
14.00 |
|
05701/2011 |
Lodging 1T3 online with the Tribunal |
2 |
28.00 |
|
06/01/2011 |
Letter out to claimant |
2 |
28.00 |
|
08/02/2011 |
Tel out to Claire Webb at LRA |
1 |
14.00 |
|
08/02/2011 |
Letter out to cito end discovery and serve notices |
3 |
42.00 |
|
4/02/2011 |
Reading — Preparing for hearing |
15 |
210.00 |
|
14/02/2011 |
Attendance in with client |
10 |
140.00 |
|
15/02/2011 |
Tel in from client (MF) |
1 |
14.00 |
|
15/02/2011 |
Letter out to claim4nt |
1 |
14.00 |
|
15/02/ 2011 |
Letter out to OlT |
1 |
14.00 |
|
15/02/2011 |
ACT at tribunal |
10 |
140.00 |
|
|
|
Total value |
1,064.00 |
|
|
|
VAT@20% |
212.80 |
|
. |
|
Total |
1,276.80 |
Case Bill Of Costs – 23/03/2011 Page 1
Case Bill Of Costs
Client
name Belfast Charitable Society
Clifton House
2 North Queen Street
Belfast
Antrim
BT15 1EQ
Our reference 6—15—0
Details Janet Donald
—v— Belfast Charitable Society - claim for
constructive dismissal
Date 23/03/2011
Date Item Units Value
|
22/02/2011 |
Letter out to claimant |
|
1 |
|
14.00 |
|
|
|
|
|
Total Value |
42.00 |
|
|
|
|
|
VAT@20% |
8.40 |
|
|
|
|
|
Total |
50.40 |
|
|
b |
|
|
‘ |
|
Case Bill Of Costs – 23/03/2011 Page 1