Industrial Tribunals Northern Ireland Decisions

 


McKay v McAuley (t/a Ergana Corn Mill) (Unfair Dismissal) [2002] NIIT 00829_02 (4 September 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 00829/02

APPLICANT: Vincent McKay

RESPONDENT: James McAuley t/a Ergana Corn Mill

DECISION

The unanimous decision of the tribunal is that the applicant was unfairly dismissed but that he was guilty of contributory fault that it measures at 50% and awards compensation of £1,382.95.

Appearances:

The applicant was represented by Mr J McMullan, of counsel, instructed by P & A Duffy & Co, Solicitors.

The respondent was represented by Mr P O'Kane, of counsel, instructed by J J McNally & Co, Solicitors.

1. These reasons are given in summary form.
2. The applicant claimed unfair dismissal. The respondent asserted the applicant was fairly dismissed for gross misconduct.
3. The title of the proceedings is amended as set out above.
4. The tribunal made the following findings:-

(a) The applicant was born on 10 September 1973 and was employed by the respondent as a fork-lift driver and general mill worker from 22 September 1997 to 8 March 2002. His weekly wage was £225 gross £185 net.

(b) The respondent dismissed the applicant on 8 March 2002 for gross misconduct because he failed to appear for work that day until 10.45 a.m.

(c) The respondent did not have a formal written disciplinary code.

(d) Dismissal for misconduct is capable of rendering a dismissal fair.

(e) For conduct to render a dismissal fair an employer must have a reasonable belief that the employee has committed an act of misconduct, having carried out a reasonable investigation and dismissal must be within the band of reasonable responses.

(f) The applicant asserts he was unable to come into work at his proper time 8.00 a.m. because his dog was very ill and he had so advised the respondent. At 7.05 a.m. the respondent had told him to be in work by 8.00 a.m. and again at 9.40 a.m. to come in immediately. The applicant lived about 5 minutes from his place of work.

(g) When the applicant failed to attend work immediately after the respondent's phone-call at 9.40 a.m. the respondent had a reasonable belief that the applicant had committed an act of misconduct.

(h) The respondent was not required to carry out any further investigation.

(i) Despite the smallness of the respondent business the respondent was at fault in not holding a disciplinary meeting. The applicant was deprived of representation, making a plea of mitigation, or representations about dismissal as a sanction, or about an appeal.

(j) Dismissal was an unreasonable penalty because the respondent did not make it clear he viewed absence from work as warranting dismissal and had been ambivalent about the applicant's absences in the past.

(k) In all the circumstances the dismissal was unfair.

(l) The applicant was guilty of contributory fault that the tribunal measures at 50%.

(m) The applicant mitigated his loss. He became re-employed from 6 May 2002 and suffered no further loss from that date. From 8 March 2002 to 6 May 2002 the applicant earned £20 for window cleaning.

(n) Accordingly the tribunal awards compensation as follows:-

Basic Award:

£225 x 4 = £900 - £450 (contributory fault) = £450.00

Compensatory Award:

From 9 March 2002 to 5 May 2002

£185 x 8.14 - £1,505.90 - £752.95 (contributory fault) = £752.95

earnings from window-cleaning = £ 20.00

Compensatory Award = £732.95

Loss of statutory rights = £200.00

Total = £1,382.95

Prescribed period from 9 March 2002 to 5 May 2002

Prescribed element

£185 x 8.14 = £1,505.90 - £752.95 (contributory fault) = £752.95

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

This is a relevant decision for the purposes of the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996.

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Date and place of hearing: 4 September 2002, Londonderry

Date decision recorded in register and issued to parties: