Strockiene v GPH Mushrooms Ltd [2017] NIIT 02308_16IT - (21 Sep 2017)

Employer 'may' make a payment in lieu of notice to the employee giving the employer the choice whether or not to make the payment

Service

In the facts of present case, the claimant worked as a farm labourer for the respondent company, picking mushrooms at its premises, from 13 December 2014 until her "zero hours" contract was terminated on 5 August 2016, on the ground of her poor attendance record. The written contract, signed by her, included a section entitled "Hours of work (zero hours contract)", but the claimant told the tribunal that she had never received a copy after signing it. The claimant sought to demonstrate that hers was not in fact a zero-hours contract, because, on her version of events, she was working six days a week; also because her application to work just five days per week, to enable her to look after her sick mother, was turned down; and on the ground that the respondent had written to her, advising her of the termination of her contract and the reasons for such termination. The claimant also gave evidence that, she had received advice from the Law Centre that, she could not be dismissed for being absent from work due to illness. She also stated that she was advised that she could not be dismissed without receiving written warnings.

The Claimant was informed of her dismissal by letter dated 5th August, 2016, in response to which she wrote to the respondent on 24th August, 2016, asking to raise a grievance, as she alleged that the respondent had not followed the correct statutory dismissal procedure. She also stated that she wished to appeal the decision to dismiss her. Her appeal was dismissed and the decision to dismiss her was upheld. The Claimant stated in her evidence that she had never received the two invitation letters, just the dismissal letter. As regards any other documentation, the Claimant stated that, she did not understand English, and could not translate without the assistance of a friend or interpreter.

Article 130 of the Employment Rights (Northern Ireland) Order, 1996 states: "(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show-” (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this paragraph if it-” (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under a statutory provision.

Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-” (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case."

It was not only the frequency but the duration of the claimant's absences which are remarkable. In the terms of Article 130 (3) (a), "capability" can include the health of an employee as a potentially lawful reason for dismissal. The Tribunal is of the opinion that, given the claimant's repeated explanation for being unavailable was her poor health, the respondent was entitled to investigate her capacity to work at the proposed assessment hearings. The Tribunal has concluded that, the nature and small scale of the Respondent's business was such that it could not reasonably be expected to continue to tolerate the claimant's repeated and prolonged absences. She was, in truth, totally unreliable, although the respondent described her as being a good worker, when she was present.

It appeared to the tribunal that, the Respondent had afforded the claimant every opportunity to improve her attendance record to an acceptable level. Yet it also appeared that the more accommodation she was shown, the more she took advantage of it. The Respondent belatedly attempted to establish to its own satisfaction that the reasons the claimant was putting forward as to her capacity to work were valid. By her non-attendance, that lawful and reasonable attempt was frustrated; her complete failure even to acknowledge even one of the respondent's letters also sent out a clear signal that she was not engaging in this lawful and reasonable process. The tribunal is unanimously of the view that the decision to dismiss her was reasonable, lawful and fair. The claimant has therefore failed to establish that her dismissal was unfair, and it is dismissed.

As regards the claim for notice pay, the tribunal has concluded the claimant has failed to establish an entitlement to such a payment. She was dismissed at the end of a process in which she had failed to engage, which in itself was only necessary because of her repeated and prolonged absences. The Respondent's decision to dismiss and to pay in lieu of notice, are both discretionary. In Cerberus Software Ltd v Rowley, the contract stated that, the employer 'may' make a payment in lieu of notice to the employee. The Court of Appeal held that, this gave the employer the choice whether or not to make the payment. It appears to the Tribunal that, in present case, the Respondent decided to terminate the contract, by reason of dismissal, without exercising its discretion to make a payment in lieu of notice. It therefore acted lawfully and within the terms of the contract, so the Claimant's claim for notice pay is also dismissed.

Relevant : Cerberus Software Ltd v Rowley [2001] ICR 376

Tags : POOR ATTENDANCE DISMISSAL LEGALITY