Industrial Tribunals Northern Ireland Decisions

 


THE INDUSTRIAL TRIBUNALS

CASE REF: 450/05

CLAIMANT: Donald George Jackson

RESPONDENTS: 1. Norman Taylor

2. Dyno Rod

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed.

Appearances:

The claimant appeared and represented himself.

The first-named respondent appeared and represented himself as well as representing the second-named respondent.

The tribunal consisted of only the Chairman and one lay member. The parties present consented that the two members of the tribunal should hear and determine the case in the absence of the third member.

The tribunal with the consent of the parties present ordered that the name of the first-named respondent, as an employee of the second-named respondent, should be removed from the proceedings.

The parties then also consented to amendment of the name of the remaining respondent to that of Clean Bore Services Limited t/a Dyno-Rod, in accordance with the details supplied by that respondent in the notice of appearance.

The Issues

The claimant's case was that he was unfairly dismissed within the meaning of Article 132(1)(c) of the Employment Rights (Northern Ireland) Order 1996, namely because he claimed that he had brought to his employer's attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety.

The Facts

The tribunal found the following facts from the evidence, both oral and written, and from the application and notice of appearance.

The claimant was employed as a skip lorry driver at the time of his dismissal on 4 February 2005, having been employed initially by the respondent as an engineer's helper. His employment had commenced on 21 April 2004 and was continuous until his dismissal. Whilst this would not afford him the period of 12 months' continuous employment for the purposes of claiming unfair dismissal under Article 130 of the Employment Rights (Northern Ireland) Order 1996, by virtue of Article 140(3)(c) of that Order such time requirement does not apply in health and safety cases.

The tribunal found as a fact that the skip lorry the claimant was instructed to drive had a history of mechanical defects which materially affected its performance on the road.

These included the repeated "popping out" of the gear lever when the lorry was being driven in excess of 45 mph, which occurred when for example Mr Jackson had to accelerate to cross fast-moving traffic on the motorways. The cab of the vehicle was also prone to shuddering from side to side while the vehicle was moving.

Seatbelts which had originally been fitted in the cab of the lorry had been removed and not replaced. It was the subject of vigorous dispute between the parties as to who had ordered this to be done, but the undisputed fact remained that it had been done by someone on behalf of the respondent.

Mr Taylor contended that there is no legal requirement to fit lorries with seatbelts, but he was unable to identify any such legislation, or to clarify the legal situation where seatbelts were originally in place but were then removed. He did not in any event contend that their absence had not been a continuing source of concern to Mr Jackson.

The claimant had identified mechanical problems on a number of occasions which had been repaired. Mr Taylor sought to show that the vehicle was roadworthy, both from his own observations and the fact that it passed its MOT in March 2004 and again in March 2005.

It was common case that the vehicle had been shortened by the respondent.

The tribunal found as a fact that despite the fact that the vehicle had passed its MOT in March 2004, the manifestation of various problems with it, such as the shuddering and a series of broken drive shafts, was probably as a result of the shortening of the vehicle.

From the observation of Mr Taylor this vibration occurred to a lesser degree than the claimant experienced. The tribunal found as a fact however that Mr Taylor's test-drive in the vehicle was at low speed in the vehicle which did not even have an empty skip on it at that time. The claimant's experience was driving the lorry at motorway speeds in accordance with the need to complete the job, with empty and full skips being carried. The tribunal preferred the evidence of the claimant as regards the realities of driving this vehicle.

The claimant's concerns about the safety of the lorry were shared by Mr Gregg Wilson, a driver for the respondent for many years. His written evidence was agreed between the parties and was received by the tribunal.

Mr Wilson had expressed those concerns in writing to Mr Taylor, at the latter's request, on 4 February 2005. He therein supported the claimant's complaints, stating that in forty years of driving lorries he had never known a lorry to have so many transmission problems. He also stated at that time that he did not regard the vehicle as being roadworthy because of its mechanical condition.

Mr Taylor did not dispute that he knew about Mr Wilson's views on the lorry.

The tribunal therefore found as a fact that Mr Taylor was fully aware of the history of the vehicle, and the views of Mr Wilson, whose opinion he had sought, at the time he dismissed the claimant. Whilst procedure is not an issue in this case, it is worthy of note that Mr Taylor conceded that dismissal of the claimant was completely against the respondent's procedure. Under that procedure, the claimant ought only to have been suspended on full pay for three days while an investigation was carried out.

Conclusions

The tribunal concluded from the facts found that the claimant, for the purposes of Article 132 of the 1996 Order, in the absence of a health and safety representative or safety committee at his place of work, had brought the health and safety matters to the attention of his employers by reasonable means.

He had drawn their attention to his concerns openly and had sought the views of Mr Wilson, whose experience was similarly held in high regard by Mr Taylor He had also sought the intervention of his shop steward.

The respondent was plainly aware in any event that the skip lorry in question had a history of mechanical problems which affected its performances on the road.

The safety on the road clearly was an issue falling within the requirement imposed by Article 132(1) regarding circumstances connected with his work.

The tribunal concluded also that the claimant's belief that those circumstances were harmful or potentially harmful was entirely reasonable.

The absence of seatbelts clearly was a potential danger to himself in the event of an accident. He was not reassured by Mr Taylor's assertion that there was no legal requirement to fit such belts, and Mr Taylor, even by the time of the tribunal hearing, had not produced anything to confirm his assertion.

In any event, the mechanical condition of the vehicle was such as to give sufficient cause for concern, regardless of whether the vehicle subsequently passed its MOT. Mr Jackson's own experience of driving the vehicle was confirmed by Mr Wilson, and in significant aspects when Mr Taylor drove it in response to the claimant's complaint.

The tribunal concluded that the legislation does not confine itself to health and safety concerns by the employee only, and the tribunal found that the issues raised by Mr Jackson were entirely reasonable in addressing the potential dangers to himself and to other road users.

The tribunal therefore concluded that the reason Mr Jackson was dismissed was because he had by reasonable means brought to the attention of his employers circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health and safety.

Such dismissal having been proved is automatically unfair and consequently the application is well founded and must succeed.

Accordingly, the tribunal awards compensation as follows:-

The basic award does not apply in this case on account of the lack of the requisite 12 month's continuous employment.

Compensatory Award:

Loss of earnings from 4 February 2005 to 6 April 2005, being nine weeks and two days:-

£190.00 x 9 = £1,710.00

£190.00 x 2 = £ 380.00

5

Total compensation £2,090.00

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1996.

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

Chairman:

Date and place of hearing: 3 June 2005, Belfast.

Date decision recorded in register and issued to parties: