Sharkey v Graves (Statement of Pay, Payment in Lieu of Notice, Holiday Pay, Contract of Employment) [2004] NIIT 85_02 (1 October 2004)
THE INDUSTRIAL TRIBUNALS
CASE REF: 85/02
APPLICANT: Kerry M Sharkey
RESPONDENT: Rosie Graves (Bankrupt)
DECISION
The unanimous decision of the tribunal is that the applicant's complaints are without merit and these complaints are dismissed by the tribunal, without further order.
Appearances:
The applicant did not attend and was not represented.
The respondent appeared and represented herself.
This is a decision in summary form.
THE ISSUE
- The applicant's complaints, as set out in the applicant's Originating Application dated 20 December 2001(the applicant's complaint of unlawful discrimination having been disposed of at an earlier hearing) were of :-
" (i) No proper itemised pay statement and no pay statement;
(ii) No pay in lieu of notice. No holiday pay. No contract".
The respondent denied the applicant's contentions. In the course of the hearing, the tribunal had sight of a copy of a Bankruptcy Order in regard to the respondent and had to determine the respondent's status.
THE TRIBUNAL'S FINDINGS
In consequence of the written and oral evidence adduced before it, the tribunal found the following facts:-
- The respondent was the sole proprietor of a day nursery childcare facility known as 'Little Stars'. The applicant commenced employment with the respondent as a supervisor in that nursery on or about 5 July 2001.
- The applicant was provided by the respondent with a document entitled 'policies and procedures' which covered such things as specific guidelines for the care of children, hygiene policy, health & safety policies and some information concerning common illnesses that might affect the children entrusted to the care of the nursery. The applicant signed as having read this document on 19 November 2001.
- In addition to the foregoing document, a draft statement of main terms and conditions of employment was prepared by the respondent in conjunction with the Labour Relations Agency. That document was shown by the respondent to the applicant who agreed the content of this. However, apparently some outstanding issues remained to be resolved as regards a number of other members of staff and accordingly the applicant was not given a final copy of this document.
- The applicant was a monthly paid employee and the tribunal saw and inspected itemised wages slips and heard and accepted that these had been properly furnished to the applicant in the course of the employment. It appeared to the tribunal from these records that the applicant had been fully and properly paid her normal remuneration.
- The applicant's employment was summarily terminated by the respondent on or about 6 December 2001 for reasons of gross misconduct, that conduct being categorised as such in a clause under the title 'confidentiality' contained in the 'policies and procedures' document which, as mentioned, had been received and accepted by the applicant. The respondent contended that she was entitled to summarily terminate the contract in these circumstances and thus no pay in lieu of notice would have been applicable.
- The tribunal saw and inspected copy of a Bankruptcy Order and heard from the respondent and is satisfied that on 15 May 2002 the respondent was adjudicated bankrupt on foot of a debtor's petition in the High Court of Justice in Northern Ireland, Chancery Division (Bankruptcy), Record Number 2002 No. 1222. This adjudication took place after the proceedings were instituted on foot of the applicant's Originating Application. The respondent remained an undischarged bankrupt as at the date of the tribunal hearing.
THE TRIBUNAL'S DECISION
- The tribunal notes the fact of the respondent's adjudication in bankruptcy on 15 May 2002, some months after the commencement of these proceedings. The Insolvency (Northern Ireland) Order 1989 provides as follows:
258.— (2) Any court in which proceedings are pending against any individual may, on proof that a bankruptcy petition has been presented in respect of that individual or that he is an undischarged bankrupt, either stay the proceedings or allow them to continue on such terms as it thinks fit.
- In this matter, the tribunal thought fit to permit the proceedings to continue in view of the determination set out below. The applicant did not appear, nor was she represented. In such a situation the tribunal is entitled to proceed as by Rule 11 (3) of the Industrial Tribunals Rules of Procedure 2004 provided. The tribunal considered the applicant's Originating Application and the Notice of Appearance thereto, and heard the respondent's oral evidence and noted such other evidence as was before it.
- Looking at the applicant's contentions as set out in her Originating Application in turn, the applicant had been provided by the respondent with a document, 'policies and procedures', which the tribunal is satisfied formed the written basis of the contract of service between the applicant and the respondent. There was a further document which was intended to form the basis of the contract but which had not been finalised at the date of the employment came to an end. However, part of the first document contained a statement relating to confidentiality and categorised employee's breach of that policy as gross misconduct. It was that material breach which caused the summary termination of the applicant's contract by the respondent. On the evidence, the terms of contract between the applicant and respondent entitled the contract to be summarily terminated for gross misconduct and that had been done. Furthermore, the tribunal accepted evidence that proper wages slips were provided by the respondent to the applicant. In addition, there was no evidence that the applicant was entitled to any holiday pay which has not been duly paid to her. In regard to the claim for pay in lieu of notice, the terms of contract entitled the contract to be summarily terminated for gross misconduct and that had been done. No pay in lieu of notice would therefore have been due by the respondent to the applicant.
- Taking all of this into account, the tribunal can see no merit in the applicant's complaints and these complaints are dismissed by the tribunal, without further order.
Chairman:
Date and place of hearing: 1 October 2004, Belfast.
Date decision recorded in register and issued to parties:
