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THE INDUSTRIAL TRIBUNALS

CASE REF: 518/02

APPLICANT: Kevin Terence Maguire

RESPONDENTS: Brendan O'Hare & Joseph O'Hare

t/a O'Hare Transport

DECISION

The unanimous decision of the tribunal is that the applicant was unfairly dismissed by the respondent and contributed to the extent of 60% to his own dismissal. The tribunal awards the sum of £336.00

APPEARANCES:

APPLICANT: Mr J McDonald, Solicitor, of Walker McDonald for the applicant.

RESPONDENTS: Mr P Prenter, Solicitor, of Campbell & Caher for the respondents.

Summary Reasons

The title of the respondent is amended by consent to Brendan O'Hare and Joseph O'Hare t/a O'Hare Transport.

The applicant was employed from 26 August 2000 until 25 January 2002 by the respondent as a lorry driver. The tribunal accepted there were six employees and the two partners of the company who drove eight lorries. The applicant had an accident at work on 5 November and fractured a bone at the base of his spine. He went on sick leave as a result of this and had submitted sick lines relating to back pain and incapacity for work.

On 24 January 2002 it was common case that Joe O'Hare spotted the applicant in a taxi complete with sign for a taxi company on the vehicle. The car was parked in Moira and the applicant agreed that he had been driving a taxi. The conflict of evidence was whether he had received any money for doing this. The respondents had received word that the applicant had been taxi-ing since the beginning of January. The tribunal accepted the applicant's evidence that he had renewed his PSV licence in January and that he had driven taxis in the past before he took employment with the respondent.

It was agreed that the applicant went to collect his statutory sick pay from the respondents on the night of 24 January and what started as a general talk between Joe and Brendan O'Hare and the applicant turned into a disciplinary hearing. The O'Hare brothers stated that it was at the request of the applicant, the applicant stated that he did not know it was going to be a disciplinary meeting. However the net result was that the brothers discussed what the applicant had said and decided to dismiss him. A letter of dismissal was produced to the tribunal, the applicant stated that he had never received it. He rang Joe O'Hare a week later to ask about his next week's cheque and was told that he had been dismissed. It was agreed that the applicant received his P45 on 12 February. He did not accept receiving a cheque for £270 made out to him in the same envelope. The tribunal noted that the cheque was cashed on the same day and consider that the applicant's evidence on this point is not credible.

The tribunal is satisfied that the respondents had no written employment policy and they had a scant knowledge of good industrial relations or employment law. The dismissal was procedurally unfair. To turn a general meeting into a disciplinary hearing at the so-called application of the applicant does not represent the actions of a reasonable employer. All the allegations were not put to the applicant at that time, although he may not have wished to have a representative there at that time, the tribunal concludes that the employer should have taken a pro-active stance, sent the applicant home and then set up and conducted a proper disciplinary hearing at which the applicant was given a full opportunity to meet the case made against him.

The evidence from the respondents was conflicting as to who made the decision to dismiss and on what basis it was made. If it was carried out and decided upon by Joe O'Hare his reasoning was flawed in that he relied on three to four verbal warnings as the reason to dismiss the applicant although he accepted the applicant's version of events about the taxi. To dismiss somebody on the basis of verbal warnings which in any event were disputed and we accept that the applicant did not know they were being recorded is manifestly unfair. If as Brendan O'Hare put forward, both brothers decided to dismiss the applicant then his reasoning was also unfair because both brothers were dismissing for different reasons.

The tribunal does not accept that the applicant was merely doing a favour for a friend and having a one-off drive in a taxi. We accept the respondents' evidence that the applicant was trying not to be seen in the taxi and his actions were those of a man who realised that he had been caught. By driving a taxi when he was in receipt of statutory sick pay the applicant was acting fraudulently and in this occasion contributed significantly to his own dismissal. The tribunal consider that his contribution to his own dismissal should be measured in the sum of 60%. The applicant is still on incapacity benefit and has been since November last year. There is no loss which is occasioned by actions of the respondent. Although he was dismissed he was not able to work at the time of his dismissal and he has not been able to work at any time since. If he is incapable of work it is not for the respondents to compensate in the sum of a net wage. The applicant is entitled to a basic award which is set at the statutory maximum of £240 per week. He has an entitlement of one and a half weeks reduced by 60% which leaves an award of £216.

The tribunal awards a figure for loss of statutory rights which is £200 less 60% contribution which equals £120. The total sum awarded is £336.

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

____________________________________

M P PRICE

Vice President

Date and place of hearing: 5 September 2002, Belfast

Date decision recorded in register and issued to parties: