THE INDUSTRIAL TRIBUNALS

CASE REFs:	   1118/06
2488/06

CLAIMANT:			Linda Turkington					

RESPONDENTS:		1.	Nigel Gilbert
				2.	Cyril Johnston Hire Limited					

DECISION 

The unanimous decision of the tribunal is that the claimant was not dismissed by the respondents on 9 August 2006 and her claim for unfair dismissal is dismissed together with her remaining claims.

Constitution of Tribunal:

Chairman:			Mr S A Crothers	

Panel Members:		Mr J Carney
				Mrs M Galloway

	
Appearances:

The claimant was unrepresented on the first day of the hearing and was represented by Mr Sullivan, Solicitor of Sullivans, Solicitors for the remainder of the hearing.

The respondents were represented by Mr J Dunlop, Barrister-at-Law, instructed by Carson McDowell, Solicitors.	

1.	The issue before the Tribunal as agreed by the parties was as to whether the claimant had been dismissed and, if so, was she unfairly dismissed either for a reason in connection with a transfer of undertaking which took place on 7 June 2006 or alternatively by the respondents pursuant to Articles 127, 129 and 130 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”)?  The respondents’ Counsel, Mr Dunlop stated to the Tribunal that if it found the claimant 

had been dismissed, there was no defence being raised by the respondents either under the terms of The Transfer of  Undertaking Regulations or the Order.

2.	The Tribunal heard evidence from the claimant together with Mrs Lynn Cowden, Senior Administrator in Cyril Johnston Hire Limited and from Mr Gilbert, Managing Director of Cyril Johnston Hire Limited.  The Tribunal was also presented with documentation from both parties.

3.	Having analysed the evidence before it, the Tribunal made the following findings of fact:-

(1)	The claimant had been employed by Albert Houston Refrigeration from April 2001.  This business was transferred to Cyril Johnston Hire Limited by virtue of the Transfer of Undertakings (Protection of Employment) Regulations 2006.  (“TUPE”)  This business was based at offices in Ballyclare and the claimant was allowed to remain there after the transfer in order to deal with outstanding issues within the pre-existing business.  The claimant did not have a written contract of employment.  

(2)	A new computer hub was being installed in Ballyclare by British Telecom and until this was completed the claimant was requested to work from the second named respondent’s premises at Carryduff.  The claimant had already made some visits to Carryduff and claimed that Mr Gilbert was aware of certain personal reasons as to why she could not move to Carryduff even on a temporary basis pending the installation of the computer hub.  Mr Gilbert denied this.

(3)	The core of the evidence relating to the issue before the Tribunal converges around the events on Wednesday 9 August 2006.  The Tribunal finds that at approximately 9.00 - 9.15 am on that date, Mr Gilbert, who was under pressure due to the fact that he was coping with the transfer of a new business and invoicing was behind, contacted the claimant and impressed upon her the need to move to Carryduff until the computer hub was installed.  The Tribunal is satisfied that the claimant was aware that this would be a temporary arrangement and does not believe that, as claimed, she informed Mr Gilbert of her personal circumstances.  The claimant contacted the Labour Relations Agency after the meeting and the Tribunal was shown a fax which she claimed she had faxed to the Carryduff premises at around 10.30 am on 9 August 2006.  The Tribunal is satisfied that neither Mr Gilbert nor Mrs Cowden saw this fax until after they had returned from a meeting with the claimant in the afternoon.  The fax refers to redundancy.  The Tribunal views this as a significant fact and as being indicative of the claimant’s intention to leave employment with the second named respondent, rather than move to Carryduff on a temporary basis.  Furthermore, the claimant’s computer was taken from her office in Ballyclare on the same morning but the Tribunal finds that, on the evidence, there was nothing suspicious about this.  It further finds that Mr Gilbert was extremely anxious to keep the claimant as she was crucial to the operations of the second named respondent particularly in the aftermath of the transfer of the business from Albert Houston Refrigeration to the second named respondent on 7 June 2006.  Mr Gilbert then decided to meet with the claimant at the Ballyclare premises and Mrs Cowden, who had to see another employee  at Ballyclare accompanied him on his journey.  She spent a few minutes with the new employee and then joined Mr Gilbert in the claimant’s office.  Mr Gilbert expected her to move to Carryduff on the following Monday.  The claimant’s evidence was that she was asked on three occasions by Mr Gilbert during that meeting if she was resigning to which she answered, “No” stating that she would carry out whatever work was available.  She further claimed that at the end of the meeting Mr Gilbert opened the door and gestured for her to leave telling her to “go now” and that he would pay her to Friday.  She then recounted how she was distressed in the car afterwards and claimed that she had been bullied into leaving the building.  Mr Gilbert and Mrs Cowden gave a different version of events and Mr Gilbert in particular denied intimidating or bullying the claimant and stated in evidence that he had no intention of changing anything in respect of the claimant and wanted her to stay.  At the end of the meeting his evidence was that she gathered her belongings, walked to the door and stated, “I’m leaving … I’m not coming back”.  He did not believe that she would come back.  The claimant’s P45 dated 11 August 2006 was signed on 15 August 2006 and was received by the claimant between 16 and 18 August 2006.
		
4.	The law in relation to the issue before the Tribunal is governed by Article 127(1)(a) of the Order which states in relation to the circumstances in which an employee is dismissed that “the contract under which he is employed is terminated by the employer (whether with or without notice)”.  The cases regarding language of termination were, by agreement with the party’s legal representatives not relevant as, depending on which version of the evidence the Tribunal believed, the words alleged to have been used by Mr Gilbert and the claimant were unambiguous.

5.	The Tribunal, having considered the findings of fact in relation to the issue before it, together with the relevant law and the submissions by both parties’ legal representatives concludes that the respondent’s version of events is on the balance of probabilities to be believed.  The claimant, after advice from the Labour Relations Agency, referred only to redundancy in her fax communication to the respondent’s Carryduff Office.  This, combined with the respondent’s evidence that they were anxious to retain the claimant, is inconsistent with the claimant’s version of events and points the Tribunal to the conclusion that at the end of the meeting on 9 August 2005 she did indicate that she was leaving and was not coming back and the respondent had no reason prior to forwarding her P45 for supposing that she had changed her mind in any way.  The claimant had therefore resigned, and her claim for unfair dismissal is dismissed.  Her other claims for breach of contract, unlawful deductions from wages, redundancy and under TUPE are also dismissed together with the remaining claims relating to discipline and grievance (right to be accompanied).       

Chairman:
	
Date and place of hearing:	17, January 2007 and
					22 February 2007, Belfast.
		
Date decision recorded in register and issued to parties: