Raplewicz v North Coast Hotels Ltd... [2011] NIFET 00010

THE INDUSTRIAL TRIBUNALS

CASE REF: 10/11 FET

361/11

CLAIMANT: Dorota Raplewicz

RESPONDENT: North Coast Hotels Ltd, t/a Ramada Hotel Portrush

DECISION

(1) The decision of the tribunal is that the claimant was not unfairly dismissed. The claimant resigned without notice and is thus not entitled to notice pay.

(2) The tribunal does not have jurisdiction in respect of the claims of race discrimination, religious discrimination and unlawful deduction of wages. These claims are therefore dismissed.

(3) The claimant is awarded £298.87 in respect of outstanding holiday pay.

Constitution of Tribunal:

Chairman: Mrs Ó Murray

Members: Mrs T Hughes

Mr M Roddy

Interpreter: Ms E Sherwood

Appearances:

The claimant appeared in person.

The respondent’s representative: Mr T Sheridan of Peninsula Business Services Ltd.

THE CLAIM

1. The claimant’s claim was for unfair dismissal, outstanding notice pay and holiday pay and unlawful deduction from wages in respect of her hourly rate of pay.

2. The claimant also claimed that she suffered religious discrimination and discrimination on grounds of race in respect of incidents other than her alleged dismissal.

3. The respondent’s case was that, the claimant resigned without notice; she was not entitled to notice pay; she received her proper rate of pay during her employment; and she received the correct holiday entitlement.

4. The respondent denied discrimination of any kind and alleged that the tribunal did not have jurisdiction in relation to the claims other than unfair dismissal, as a relevant grievance was not raised by the claimant.

THE ISSUES

5. The issues for the tribunal were as follows:-

(i) Did the claimant resign or was she dismissed?

(ii) It was agreed by the respondent that, if the tribunal found that the claimant was dismissed, the respondent did not comply with the statutory dismissal procedure, any dismissal was therefore automatically unfair and, in those circumstances, the claimant would be entitled to compensation together with an uplift on the compensatory of award of 10% to 50%.

(iii) Did the claimant send a written grievance to her employer in relation to her claims of race discrimination and discrimination on grounds of religious belief. If there was no written grievance by the claimant did the tribunal have jurisdiction to entertain her claims of discrimination?

(iv) Did the claimant raise a written grievance in relation to her claims for outstanding holiday pay and the claim of failure to pay wages at the proper rate? If no such written grievance was raised, did the tribunal have jurisdiction to entertain the claim?

(v) If the claimant was dismissed, was she entitled to notice pay?

SOURCES OF EVIDENCE

6. The tribunal heard evidence from the claimant on her own behalf and, on behalf of the respondent, heard from Ms A Donaghy, general manager of the hotel, and Ms H Black, the claimant’s line manager. The tribunal had regard to all the documentation to which it was referred.

THE LAW

7. A claimant has the right not to be unfairly dismissed. Where the respondent
disputes dismissal the burden is on the claimant to prove that she was dismissed. If the claimant proves that she was dismissed the burden shifts to the respondent to show that the dismissal was for one of the potentially fair reasons outlined in the legislation and the tribunal then decides whether dismissal was fair or unfair in the circumstances.

8. In discrimination claims, where the claim is that discriminatory acts occurred during employment and (as in this case) it is not claimed that the discrimination relates to a dismissal, a written grievance relating to the alleged discrimination must be sent by the claimant to the respondent. The tribunal can take account of the context in which any correspondence was sent.

9. In the case of Canary Wharf Management Limited v Edebi [2006] IRLR 416, Elias P gave guidance on when a document from a claimant could amount to a written grievance for the purposes of the relevant legislation. At paragraph 25 and 31 he stated as follows:-

“It seems to me that the objectives of the statute can be fairly met if the employer, on a fair reading of the statement and having regard to the particular context in which it is made, can be expected to appreciate that the relevant complaint is being raised... If the statement cannot in context be read even in a non-technical and unsophisticated way as raising the grievance which is the subject matter of the tribunal complaint, then the tribunal cannot hear the claim. There is no overriding interest of justice which can be invoked to save it.”

10. Schedule 3 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 stipulates that a written grievance must be presented in cases of unlawful deduction from wages and claims for holiday pay under the Working Time Regulations. No written grievance is necessary for breach of contract claims to enable the tribunal to have jurisdiction to hear them although the tribunal has a discretion to amend any compensation awarded for breach of contract by increasing or decreasing it depending on the party at fault.

11. There are exceptions to the requirement to raise a grievance listed in the Regulations and in summary these are as follows:

(i) a party has reasonable grounds for believing that commencing or complying with them will result in a significant threat to any person or property;

(ii) a party has been subjected to harassment and has reasonable grounds for believing that commencing or complying with them would result in his being subjected to further harassment or;

(iii) it is not practicable for the party to commence or comply with the grievance procedures within a reasonable period. This provision has been narrowly interpreted in the case law.

FINDINGS OF FACT AND CONCLUSIONS

12. The tribunal considered carefully the written and oral evidence and found the following facts and reached the following conclusions by applying the law to those facts.

13. The claimant was employed as a kitchen porter from 8 November 2007 until 24 October 2010 when her employment terminated.

14. The claimant’s case was that she was called to a meeting on Sunday, 24 October 2010 by the general manager, Ms Donaghy, and she was sacked at that meeting without notice and without any explanation.

15. The respondent’s case was that there was an incident early that morning when the claimant and two other staff refused to carry out duties assigned to them by a supervisor when a cleaner failed to turn up for work. The respondent’s case was that the claimant and the two other staff were called to a meeting at lunchtime to explain themselves and were requested to apologise to the supervisor. When they refused, they were sent home to think about their position and to return at 5.00 pm for another meeting. At the evening meeting the staff continued to refuse to apologise. The three staff resigned and the claimant, in particular, wrote her resignation in Polish on a piece of paper and handed it to Ms Donaghy.

16. We found both sides’ account of the meetings on 24 October to be less than candid and we have no doubt that both sides gave a sanitised account of their encounters on that day. We believe that both encounters were more heated, on both sides, than either side was prepared to admit.

17. Much depends on our findings in relation to the written resignation tendered by the claimant.

18. The claimant’s case was that she wrote out her resignation approximately one year before the termination of her contract in circumstances where her son was sacked after he had been “mentally abused”. The claimant alleged that she gave in her written resignation to reception but met with her boss, Ms Black. The claimant then decided to retract her resignation although the resignation letter remained with the respondent. The claimant’s case was that she did not see that resignation letter again until it was enclosed with Ms Donaghy’s letter of 5 November 2010, which was sent after the termination of the claimant’s contract.

19. The respondent’s case was that the claimant wrote out her resignation during the second meeting on 24 October 2010, that it was photocopied and given to the claimant during that meeting, and that an English translation was written on it at the meeting by the worker who had acted as interpreter.

20. We accept the respondent’s version of the circumstances leading to the claimant writing her letter of resignation. Our primary reasons for so finding are as follows-

(i) The resignation letter was in Polish with an English translation. The English translation reads as follows:-

“Me Dorota recine my job, because I was blame for refuse helping person, who was late for work.”

During the hearing before the tribunal, the claimant’s words in Polish on the resignation letter were translated by the interpreter as follows:-

“Me signed below I resign from my work as I was accused of not helping person late for work.”

The letter of resignation makes no reference to the claimant’s son but seems to make reference to the claimant being asked to cover for someone who was late for work. This tallies more with the respondent’s account, than with the claimant’s account.

(ii) When the letter of resignation was enclosed with Ms Donaghy’s letter to the claimant of 5 November 2010, the claimant in her two letters of response, made no reference to any concern that she had that a resignation letter from a year before was being produced by the respondent to cover the fact that they had dismissed her. We find that, if the claimant’s account were true, she would certainly have queried the use of a resignation letter from the year before.

(iii) The claimant’s return to the workplace after her alleged dismissal is also incompatible with her account of being dismissed summarily without reason. It does however fit with the respondent’s case that they sent the staff home to think about their refusal to apologise.

(iv) The claimant also alleged that Ms Donaghy had said she would “revenge” the claimant if she returned to work for the respondent in the future. In cross-examination however the claimant agreed it was she who asked Ms Donaghy whether she would “revenge” the claimant if she returned to work in the future. This is not compatible with the claimant’s account that she was sacked for no reason.

21. As we have found that the claimant resigned and was not dismissed, her claim for unfair dismissal fails. The claimant made no case that she was forced to resign but, rather, her case all along was that she did not resign but was sacked summarily for no reason.

22. As the claimant resigned she is not entitled to notice pay from the respondent.

23. The meetings on 24 January escalated very quickly to a stand-off between the two sides and we find that to be regrettable given that the result was that the respondent lost a valuable member of staff together with two colleagues and the claimant’s resignation meant that she was out of work for nine months.

Written grievance issue

24. The claimant’s claim of race discrimination related to several alleged incidents during the course of her three years of employment. The claimant did not allege that the events which led to her resignation amounted to discrimination of any kind.

25. The allegation of discrimination on grounds of religious belief related to an allegation that the claimant was not allowed to take time off and that she could not take Sundays off. The claimant did not allege that the events on 24 October 2010 amounted to religious discrimination.

26. The claimant wrote two undated letters in response to Ms Donaghy’s letters of 5 November 2010 and 19 November 2010. In each letter the claimant states that she did not resign but was wrongly dismissed. The claimant requested three months’ payment for her three years of work and this appears to us to be a request for notice pay on top of her claim that she was unfairly dismissed.

27. In neither letter is there reference of any kind to race discrimination or religious discrimination, nor is there reference to outstanding holiday pay or any dispute about her hourly rate of pay.

28. The claimant in her evidence agreed that at no stage did she complain verbally or in writing about the alleged incidents of harassment and she agreed that she never complained, either before or after her resignation, about any such treatment. The claimant agreed that she first raised these incidents in her claim to the tribunal.

29. As we have stated in relation to the meeting of 24 October 2010, we were dissatisfied with the evidence given by both sides. We note that the claimant’s allegations expanded and became more detailed and vivid as the hearing progressed and we also note that the claimant did not call any supporting witnesses. Several of the allegations of serious race harassment were raised for the first time in the tribunal hearing. The burden was on the claimant to prove those facts. In summary, we do not find that the claimant was subjected to racial harassment nor to the ‘mental abuse’ and ‘mental torture’ alleged during her employment as we do not find that the claimant has discharged the burden of proving such facts.

30. We have looked at the letters from the claimant in the context of the evidence and we do not find them to amount to written grievances in relation to the discrimination claims, the Working Time claim for holiday pay, and the claim for unlawful deduction from wages in respect of the claimant’s hourly rate.

31. There are narrow exceptions in the legislation which allow a claimant to make a claim even if a written grievance was not raised The only reason given by the claimant for failing to put things in writing was that she wanted to keep her job. This reason did not apply following the claimant’s resignation and she was well able to set out her grievance in relation to her alleged unfair dismissal and the notice pay she felt was due to her. We were given no explanation for her failure to allude at that time to any of the numerous alleged incidents of discriminatory treatment which she says occurred throughout the three years of her employment.

32. On the evidence before us, the claimant cannot avail of any of the narrow exceptions to the requirement to raise a written grievance. The lack of a written grievance in this case therefore deprives the tribunal of jurisdiction to hear the claims of discrimination, and for deduction from wages. We therefore dismiss those claims.

33. As we have found, the meetings escalated very quickly into a stand-off between the managers, who were insisting on an apology from the staff, and the workers who were refusing to apologise. The result was the loss of three kitchen staff. We find this to have been regrettable especially as the claimant was regarded as a very hardworking member of staff and, indeed, an exemplary employee.

Holiday Pay

34. The claim for holiday pay can also be claimed under the breach of contract legislation.

35. The holiday year ran from 1 April to 31 March and the claimant resigned on 24 October. The claimant therefore resigned approximately seven months into the holiday year and her holiday entitlement should have been prorated so that she was paid for any outstanding holidays. It is not the case that the claimant was entitled to all of her outstanding holiday entitlement on the date of resignation.

36. The claimant had taken 10 days holidays out of her 28 days entitlement. By our calculation the claimant would have been entitled to approximately 16.3 days at the date of resignation and she therefore was entitled to be paid for approximately 6.3 days. As this is a contractual sum outstanding on termination of contract, no written grievance is required to give the tribunal jurisdiction. The documentary evidence shows the way that the claimant’s holiday pay was previously calculated. Using that method we award the sum of £298.87 being 6.3 days x 8hours x £5.93.

Summary

37. The conclusions of the tribunal are as follows:-

(i) The claim of race discrimination and discrimination on grounds of religious belief are dismissed for lack of jurisdiction as no written grievance was raised.

(ii) The claims for unlawful deduction from wages is dismissed for lack of jurisdiction as no written grievance was raised.

(iii) The claim of unfair dismissal is dismissed as the claimant resigned. The claim for notice pay therefore fails as the claimant was not entitled to receive notice pay when she resigned without notice.

(iv) The claimant is awarded £298.87 for breach of contract in respect of outstanding holiday pay.

38. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (NI) 1990.

Chairman:

Date and place of hearing: 20 and 21 October 2011, Belfast.

Date decision recorded in register and issued to parties:

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	Fair Employment Tribunal Northern Ireland Decisions
You are here: BAILII >> Databases >> Fair Employment Tribunal Northern Ireland Decisions >> Raplewicz v North Coast Hotels Ltd... [2011] NIFET 00010_11FET (14 December 2011) URL: http://www.bailii.org/nie/cases/NIFET/2011/00010_11FET.html Cite as: [2011] NIFET 00010_11FET, [2011] NIFET 10_11FET

Fair Employment Tribunal Northern Ireland Decisions