Industrial Tribunals Northern Ireland Decisions

 


Thallon v Engineering Services Electrical Ltd (Unfair Dismissal) [2002] NIIT 142_02 (11 June 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 142/02

APPLICANT: Ryan Thallon

RESPONDENT: Engineering Services Electrical Ltd

DECISION

The unanimous decision of the tribunal is that the applicant was unfairly dismissed but the dismissal was contributed to by the applicant's own conduct and that the amount of the award be reduced by 20% accordingly.

Appearances:

The applicant was represented by Ms M Larkin, Barrister-at-Law, instructed by Savage & Co, Solicitors.

The respondent was represented by Mr D Johnston of the respondent company.

Summary Reasons

1. The applicant was employed by the respondent as an apprentice electrician. His employment commenced in September/October 1998 and continued for a period of just over three years. During that time, although he did have one disciplinary matter on his record at an early stage of his employment, he was described by Mr Johnston, the respondent's principal witness, and a director, as having a clean record and being hard working to the extent that he "could not fault him".

The applicant was employed on terms and conditions contained in a document which had been made available to him and which he admitted that he had read. Those conditions referred to the possibility of disciplinary action/punishment in the event of unauthorised absence from work. The conditions of employment also referred to the hours of employment being from 8.00 a.m. to 4.30 p.m. with a break of at least 30 minutes away for lunch, plus 15 minutes at 10.00 a.m. These provisions had been reinforced, according to the respondent's evidence, which the tribunal accepted, by a memo issued on 8 May 2001 which stated that the morning tea-break had to be taken between 10.00 a.m. and 10.15 a.m. and that anyone found taking breaks outside these times would be disciplined. The expressed intention of this memo was to eradicate any excuses about breaks being taken late.

2. On 19 October 2001 Mr Johnston was, according to his own evidence, informed by his foreman, Mr Nelson, that two of the respondent's vehicles were parked in Conway Square, Newtownards. These vehicles were registered to the applicant and to a Nathan Thomas. He attempted to contact both of these by phone, twice, according to Mr Johnston, but was unable to make contact. Eventually he did make contact with Nathan Thomas who informed him, untruthfully, that he was at the bank in Newtownards, that his companion was in the van and that he did not know where the applicant was. In fact they were all in Caffolla's Café in Newtownards, as the applicant accepted. Mr Johnston then informed Mr Thomas that when they had finished what they were doing they should speak to the foreman who was parked beside their vans. He also told them that they should all make their way back to the office. According to Mr Nelson's evidence, which the tribunal accepted, he was in position and saw the vans at approximately 8.45 a.m., and the applicant and the other persons previously mentioned left Caffolla at 9.05/9.10 a.m.

On their return to base they all attended at Mr Johnston's office when he asked them what they were playing at. Mr Thomas asked what did he mean and Mr Johnston responded that they knew what he meant – having a tea-break when they shouldn't have been. At that point Mr Thomas laughed. Mr Johnston replied, to all of them, "get your stuff out of the van, give me the keys, and go". They took this to mean dismissal which, indeed, it was intended to be.

3. Even on this evidence serious questions have to be asked about the manner in which the matter was dealt with. The disciplinary proceedings, if they can be so described, were wholly unstructured; little, if any, opportunity for the persons concerned to put forward any explanation or mitigating circumstances was afforded; no opportunity was given to any person individually to make any statement but rather all three of them were lumped together as if the matter was a single offence. Bearing in mind that Mr Johnston had only spoken to one of them on the telephone and that that one had lied it is clear that, in that respect at least, lumping the three persons together was likely to create a degree of unfairness. Questions could also be raised about the severity of the punishment imposed. In the applicant's case he had been working for some three years; he was described as a good employee; it was accepted that the consequences of breaching the "tea-break" rule had never been spelt out to include dismissal; the maximum amount of time which could have been involved, which Mr Johnston indicated was his principal complaint, was 25 minutes. In these circumstances it is hard to escape the conclusion that Mr Johnston's admitted anger was as a result of the lies he had been told by one of the persons concerned and that that anger was then directed against all of them. In Mr Johnston's own words he was not thinking wholly rationally. It was suggested that, on the basis of a subsequent statement, the decision to stop in Newtownards for breakfast had been by way of pre-arrangement. However that could not have been in Mr Johnston's mind at the time of dismissal as it was not until a week later that any such allegation was made. Furthermore, the strength of the allegation cannot, in the absence of its maker who was, at the time, seeking to get himself reinstated, be properly tested.
4. In all these circumstances the tribunal finds that the dismissal was unfair. The tribunal considers that if the matter had been dealt with satisfactorily and fairly handled the applicant would not have been dismissed. That is not to say, however, that the applicant himself was completely free from blame. His evidence about the nature of his meeting and taking breakfast with his colleagues was not wholly convincing. He was aware that there were rules about tea-breaks. He indicated in evidence that he "did not think it would be a major problem" which suggests that he was aware there was a problem of sorts. He must have been aware that the morning tea-break could hardly be designed to enable him to have breakfast within three-quarters of an hour of his starting work, something which was outside his usual habit and practice according to his evidence. He was aware, while he was engaged in this unauthorised activity that his office was trying to contact him. He made no attempt to phone back. Nor did he offer any explanation for what he had done although, in this respect, the tribunal considered that the defects in procedure mitigated against his being able to do so satisfactorily. The tribunal concluded that these acts and omissions contributed to the applicant's dismissal. In the light of that contribution and in the light of the applicant's expressed wish for compensation rather than reinstatement the tribunal considers that an award of compensation is the appropriate remedy and that a reduction of 20% would appropriately reflect the applicant's contributory fault.
5. The tribunal will reconvene at a date to be arranged to hear further evidence as to the nature and extent of the applicant's loss and to assess what level of award would be just and equitable.

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Date and place of hearing: 8 May 2002, Belfast

Date decision recorded in register and issued to parties: 11 June 2002