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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McIlroy v ADT Fire & Security [2003] NIIT 1000_02 (4 April 2003)
URL: http://www.bailii.org/nie/cases/NIIT/2003/1000_02.html
Cite as: [2003] NIIT 1000_2, [2003] NIIT 1000_02
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- These reasons are given in summary form.
- The applicants claimed unfair constructive dismissal. The respondent denied the applicants' claims.
- On 2 April 2003, Brendan McKernan and Paul Easton withdrew their applications without objection. The application of Denise McIlroy continued.
- The tribunal made the following findings:-
CASE REFS: 1000/02
1001/02
1002/02
APPLICANTS: Denise McIlroy
Brendan McKernan
Paul Easton
RESPONDENT: ADT Fire & Security
The majority finding of the tribunal is that the applicant, Denise McIlroy, was unfairly dismissed and it awards her compensation of £901.75.
Appearances:
The applicants were represented by Mr U Crothers, Solicitor, of Brangam Bagnall & Co, Solicitors.
The respondent was represented by Ms Kemp of Engineering Employers' Federation.
(a) The applicant was employed by the respondent from 1 June 1998 to 15 February 2002. Her salary per month was £1,083.33 gross, £860 net.
(b) The applicant resigned on 17 January 2002, effective on 15 February 2002.
(c) She resigned because she said that the respondent had committed:-
(i) a breach of an express term of her contract, ie that the respondent did not follow its own disciplinary policy; and
(ii) a breach of the implied term of trust and confidence, ie by its treatment of the applicant at the meetings of 16 and 17 January 2002; and
(iii) an anticipatory breach, ie by arranging a disciplinary hearing on 18 January 2003 for the applicant it made it clear that it did not have trust and confidence in her.
(d) The tribunal is not persuaded that the respondent committed an anticipatory breach of the applicant's contract of employment.
(e) The respondent breached the express terms of the applicant's contract of employment. It failed to inform the applicant that a meeting of 16 and 17 January 2002 were investigatory meetings and that she had the right to be represented.
However even if these breaches constituted a breach of the applicant's contract which went to the core of the contract they did not play a part in the applicant's decision to resign.
The tribunal is therefore not persuaded that there was a constructive dismissal arising from a breach of an express term of the applicant's contract of employment.
(f) The majority is persuaded that there was a breach of the implied term of trust and confidence. The respondent invoked the disciplinary code against the applicant when it did not have any evidence that she was involved in setting up in competition to the respondent with two other employees. It also failed to inform her promptly that the disciplinary hearing was not proceeding against her.
The majority finds that the applicant left as a result of this breach and did so soon after the breach had occurred. The majority further finds that in all the circumstances the respondent acted unreasonably.
The majority finds that the applicant was constructively dismissed and that the dismissal was unfair.
(g) The minority find that the respondent's conduct was not unreasonable in the circumstances. It further finds that the respondent did not breach the implied term of trust and confidence but that even if it did it had a reasonable and proper cause, ie its belief of a threat to the business. There was therefore not an unfair dismissal.
(h) The applicant did not suffer any loss before 15 February 2002 nor after 4 March 2002.
During her period of unemployment the applicant failed to mitigate her loss. Evidence was not adduced as to the amount she would have earned in either working for her father or by extending her hours in her weekend job in a chip shop.
The tribunal is unable to apply precisely the analysis set out in Gardiner-Hill v Roland Berger Technics Ltd [1982] IRLR 498 for the reduction of compensatory award by reason of a failure to mitigate.
In the absence of evidence the tribunal considers that the applicant could have obtained two weeks' work of 37.5 hours per week at £4.10 per hour gross. It reduces that amount by 1/3 to allow for income tax and national insurance contributions.
(i) The tribunal is not persuaded that this is an appropriate application to award damages for the manner of the applicant's dismissal.
(j) Accordingly the tribunal awards compensation as follows:-
Basic Award:
£240.00 x 2 = £480.00
Compensatory Award:
Loss of earnings from 16 February to 4 March 2002
£198.46 x 2.14 = £424.70
Reduction for failure to mitigate = £202.95
Compensatory Award = £221.75
Loss of statutory rights = £200.00
Total = £901.75
This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 19 February, 20 March, 3 and 4 April 2003, Belfast
Date decision recorded in register and issued to parties: