Industrial Tribunals Northern Ireland Decisions

 


McConnell v Shore Manufacturing Ltd (Unfair Dismissal) [2002] NIIT 488_02 (13 August 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 488/02

APPLICANT: Tyrone McConnell

RESPONDENT: Shore Manufacturing Ltd

DECISION

The unanimous decision of the tribunal is that that applicant was unfairly dismissed by the respondent and that he contributed 50% to his own dismissal. The tribunal awards the sum of £1,236.00 to the applicant.

APPEARANCES:

APPLICANT: The applicant appeared and gave evidence.

RESPONDENT: The respondent was represented by Mr Shore, Managing Director of the respondent.

Summary Reasons

1. The tribunal accepted from the evidence that the applicant had been drinking on the night of Thursday 31 January and Friday 1 February 2002. The tribunal accepted that he telephoned his supervisor, Mr Brown, three times during the night and was extremely drunk. He asked Mr Brown for a lift to work as he was not going to be going home. The applicant arrived at work at 7.30. Mr Brown formed the impression that he was drunk by looking at his eyes and smelling his breath and yet he allowed the applicant to work a large piece of moving machinery for some two hours before Mr Shore came to work. The tribunal accept that Mr Shore and Mr Brown had a conversation about the applicant and as a result called him into Mr Shore's office. There was a discussion about his drunkenness and as a result the applicant was told to go home. He was also told that the incident would be discussed on Monday. When he arrived for work on Monday he was told by Mr Brown that Mr Shore was dismissing him. The applicant was shocked and said that he could not be dismissed like that. Mr Brown told him he would be receiving a letter from Mr Shore. It came a week later confirming that he was dismissed for gross misconduct for being under the influence of alcohol. The applicant was not given a disciplinary hearing and he was not allowed to have representation at any stage. Mr Shore stated that the applicant was dismissed for gross misconduct because he was found to be intoxicated on 1 February 2002.
2. The tribunal is satisfied that the respondent was entitled to suspend the applicant from work on Friday 1 February. The tribunal questions why the supervisor allowed him to operate a machine which could be conceived as dangerous for some two hours on the Friday morning before making this decision. On that basis the tribunal considers that the respondent should have tried to ascertain the level of intoxication of the applicant at that stage. In any event the respondent should have conducted an investigation with fellow employees as to the applicant's physical state. Statements should have been taken from persons who saw the applicant and the statements should then have been given to the applicant at some stage in the following week when he should have been properly informed that he was facing a serious disciplinary charge. The respondent is under a duty to make a reasonable investigation as to the misconduct of the applicant and to also have a fair hearing at which the applicant and his representative can put forward a case to the respondent such as has happened in the tribunal. The failure to take these steps renders the dismissal unfair.
3. We are satisfied that the applicant contributed significantly to his own dismissal. He did not tell the truth to the tribunal in respect of his level of intoxication and we are satisfied that this contributed to his dismissal in February 2002. He was unemployed for five weeks and the tribunal finds that the applicant contributed by 50% to his own dismissal.
4. The applicant was in receipt of Unemployment Benefit for five weeks and then he went to work for Moffetts. On the basis of average pay slips provided the applicant was paid £238.50 gross and £192.50 nett.

The tribunal awards a period of 26 weeks loss of £34.50 per week to the applicant as he earns less in his new employment.

Basic Award

1 week at statutory maximum £240.00

Compensatory Award

5 weeks at £227 per week £1,135.00

26 weeks at £34.50 per week £897.00

Loss of statutory rights £200.00

Total £2,472.00

Less 50% £1,236.00

This award is subject to the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996.

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: 13 August 2002, Belfast

Date decision recorded in register and issued to parties:

Case Ref No: 488/02

APPLICANT: Tyrone McConnell

RESPONDENT: Shore Manufacturing Ltd

ANNEX TO THE DECISION OF THE TRIBUNAL
Statement relating to the Recoupment of Jobseeker's Allowance/Income Support
5. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996.

	£
(a) Monetary award	1236.00
(b) Prescribed element	567.50
(c) Period to which (b) relates: from 4 February 2002-11 March 2002	(c) Period to which (b) relates: from 4 February 2002-11 March 2002
(d) Excess of (a) over (b)	668.50

The applicant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker's Allowance or Income Support received by the applicant in respect of that period; (b) is not payable until the Department of Health and Social Services has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker's Allowance or Income Support paid to the applicant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the applicant.

6. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
7. The applicant will receive a copy of the recoupment notice and should inform the Department of Health and Social Services in writing within 21 days if the amount

claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the applicant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the applicant and regardless of any dispute between the applicant and the Department.

IT18(A) (NI) (REV96)