Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 2287/04

APPLICANT: Shane Anthony Gerard Gracey

RESPONDENTS: 1. James, Rory, Conor, Shane and Niall Byrne

t/a Modern Tyres Group

2. Rory Byrne

3. Gerard Mullen

DECISION

The unanimous decision of the tribunal is that the applicant was unfairly dismissed and that his compensation as set out in the decision should be reduced by sixty per cent due to his contributory fault. The calculation of the compensation is set out at the end of this decision.

Appearances:

The applicant was represented by his father, Mr Gracey.

The respondents were represented by Ms S McGrory, Barrister-at-Law, instructed by the Employment Law Consultancy.

At the outset of the proceedings it was agreed between the parties and consented to by the tribunal that Mr Rory Byrne and Mr Gerard Mullen named as respondents of the second and third part should be dismissed from the title to the hearing in their capacity as respondents of the second and third part. Mr Rory Byrne is named as one of the respondents of the first part being one of the partners of the business trading as Modern Tyres Group whilst Mr Gerard Mullen is an employee of the partnership and therefore not personally responsible in this matter.

The decision of the tribunal in summary form.

1. The applicant who was born on 3 October 1983 and was employed by the respondents from 8 July 2002 until 3 August 2004 was dismissed from his employment following an incident which occurred on 29 July 2004.
2. Prior to that the applicant had been involved in two other incidents. The first of these incidents which occurred at a date some months after the applicant was employed by the respondents resulted in a fight between the applicant and another employee after the applicant had been criticised by his fellow employee. The incident had had to be broken up by Mr Gerard Mullen the manager of the depot and the follow employee, Mr McAnulty, suffered a superficial injury to his neck and was quite shaken by the incident. The applicant was also severely shaken by the incident during which he threw chairs and tables around the tea room. When he was eventually stopped he broke down crying and saying that he didn't know what had happened. Mr Mullen thought that the applicant might have suffered some sort of epileptic attack. He tried to give him a cigarette but the applicant could not hold it he was shaking so much. Mr Mullen did not tell his superior, Mr Rory Byrne, one of the partners of the respondent firm, the full details of this incident and although Mr Mullen spoke severely to the applicant and warned him of his future conduct no written warning or recorded warning was issued to him.
3. A few months later a further incident occurred when Mr James Murphy the area manager of the respondents called at the applicant's place of work and found that the applicant did not have his glasses with him. Apparently he had damaged his glasses and as a result of this the applicant was having difficulty seeing his work properly. Mr Murphy endeavoured to speak to the applicant concerning this matter, in a helpful way, but the applicant took the matter up in the wrong light and felt that he was being unfairly criticised. He became very aggressive with Mr Murphy and stated, 'Everyone is getting at me', and spoke in a very truculent and rude way to the regional manager. Again no warning of any sort was given to the applicant as a result of this incident save that Mr Murphy did verbally say that the applicant's conduct was out of order.
4. The final incident occurred on the morning of 29 July 2004 on the applicant's return from a holiday. An altercation took place between Mr Mullen and the applicant about whether or not the applicant had any holiday days remaining due to him. The applicant contended that he did have holiday days due but Mr Mullen who had raised the issue, as he was in the process of making up the holiday planner in the office, felt that the applicant had used up his holidays for that year. The argument became very heated and acrimonious and involved the use of bad language. This all took place in the depot in the hearing of customers and other members of staff. Mr Mullen sent the applicant home. On his way home the applicant called with the area manager, Mr Murphy, and complained that he could not work with Mr Mullen and after talking to the applicant for some time Mr Murphy sent him home and said that the partner in charge of that depot Mr Rory Byrne would be in touch with him.
5. Mr Rory Byrne had just returned from holiday. He asked the applicant to come and see him after he had heard of the incident described in 4 above. After listening to the applicant's account of the incident during which the applicant appeared to accept that his conduct had been out of order, Mr Byrne stated that he could not accept the behaviour of the applicant. Although the applicant asked for another chance Mr Byrne said that he had already had three chances. At that Mr Byrne dismissed the applicant. There was some discussion about the possibility of giving the applicant a job in a different depot but nothing materialised from this and as a result the applicant was dismissed from his job.
6. The applicant received Job Seekers Allowance from 9 August 2004 until 27 December 2004. On that date the applicant started employment at a salary slightly in excess of the salary he was earning with the respondents.
7. The tribunal holds that the respondents who had no employment procedures in force at the time of the dismissal of the applicant failed to carry out a proper investigation of the incident that led to the dismissal of the applicant. The applicant was merely asked to attend a

meeting with Mr Rory Byrne at which he was given no indication that he might be

dismissed. He was not given an opportunity to bring somebody with him to the meeting. Previous incidents had not resulted in written warnings but merely unrecorded verbal warnings. This lack of procedure resulted in the applicant having no real opportunity to present his side of the dispute to Mr Byrne and he was given no right of appeal from Mr Byrne's decision. The dismissal is therefore unfair. However, the tribunal are of the unanimous view that the applicant by his conduct on these three separate occasions and especially on the final occasion was such that he contributed greatly to his own dismissal. In these circumstances the tribunal reduces the compensation payable to the applicant by sixty per cent.

8. The compensation payable to the applicant is made up as follows:

COMPENSATION

Compensation is calculated under Employment Rights (Northern Ireland) Order 1996 ("the Order").

Basic Award

Gross wage £866.00 per month this is 1 weeks wage £216.50

Less 60% thereof under Article 156 of the Order £129.90 £ 86.60

Compensatory Award

Prescribed Element

Net average wages from

9 August-27 December 2004 @ £182.85 pw

X 20 weeks = £3,655.00

Less contributory fault @ 60% = £2,193.00 £1,462.00

£1,548.60

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

Record of benefit from Award

Your attention is drawn to the notice below which forms part of the decision of the tribunal.

Chairman:

Date and place of hearing: 24 January 2005, Belfast.

Date decision recorded in register and issued to parties:

Case Ref No: 2287/04

APPLICANT: Shane Anthony Gerard Gracey

RESPONDENTS: 1. James, Rory, Conor, Shane and Niall Byrne

t/a Modern Tyres Group

2. Rory Byrne

3. Gerard Mullen

ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER'S ALLOWANCE/INCOME SUPPORT
10. 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	£1,548.60
(b) Prescribed element	£1,462.00
(c) Period to which (b) relates: 9 August - 27 December 2004
(d) Excess of (a) over (b)	£86.60

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.

11. 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.
12. 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.