Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2006/264_05.html
Cite as: [2006] NIIT 264_05, [2006] NIIT 264_5

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 264/05

434/05

CLAIMANT: Adrian William Wilkinson

RESPONDENTS: 1. Buchanan Wire Mesh Ltd

2. William Buchanan

DECISION

The unanimous decision of the tribunal is that in Case Reference No: 264/05 the claimant was unfairly dismissed by the respondent, Buchanan Wire Mesh Ltd, he was however offered immediate re-employment by the respondent which he refused to accept. He therefore suffered no loss, as the tribunal hold that it would be reasonable for the claimant to have accepted the terms of the reengagement.

The claimant did not pursue the claim, Case Reference No: 434/05, and this claim is therefore dismissed.

Constitution of Tribunal:

Chairman: Mr P Cross

Members: Mr Sidebottom

Mr Grant

Appearances:

The claimant was represented by Mr E O'Neill.

The respondents were represented by Mr P Moore, of Peninsula Business Services Limited.

As the claimant did not proceed with Case Reference No: 434/05, where Mr Buchanan and Buchanan Wire Mesh Ltd were named as respondents, Mr Buchanan is no longer a respondent in the case, as the Case Reference No 264/05 only named the company as the respondent. Future references to the respondent refer to Buchanan Wire Mesh Ltd, the employer of the claimant.

Evidence

The tribunal heard evidence from the claimant and his witnesses Michael Campbell, Alan McCormack and Philip McCormack. On behalf of the respondents the tribunal heard evidence from Mr Brian McMillan, Mr David McAllister and Mr William Buchanan.

The issues

The issues in this case were:-

i. whether the claimant had been dismissed by the respondent; or

ii. whether he had resigned from his employment in order to visit Australia.

The tribunal's findings of fact

The claimant was employed by the respondent company from January 1998 in a key position relating to equipment maintenance at the respondent's works in Cookstown, Co Tyrone.

The respondent which was in the process of re-organising its production had employed the services of a consultant, Mr Brian McMillan.

The claimant wished to go on an extended trip to Australia and therefore on 9 August 2004 completed a internal request form for leave. This document sought unpaid leave from 8 November 2004 to 9 December 2004. After he had completed this form in August 2004 the claimant asked Mr McAllister, the respondent's shop floor manager, if he would countersign the form on behalf of the management. The form required to be signed by the claimant for leave and by a manager. The form does not state which manager has to sign the form.

There is some dispute between the evidence of the claimant and that of Mr McAllister on what was to be done concerning the form. The claimant stated that Mr McAllister said that he could not sign it and he would have to speak to Mr Buchanan, the managing director, whilst Mr McAllister states that he told the claimant that he could not sign as it was for a lengthy period of unpaid leave and that the claimant should himself speak to Mr Buchanan. The tribunal prefers the evidence of Mr McAllister that he expected the claimant himself to speak to Mr Buchanan concerning this extended period of leave.

As the claimant was unable to get Mr McAllister to sign the form, he approached Mr McMillan to see if he would sign as manager. Mr McMillan, although a consultant, did sign the form but did not hand it into the office immediately.

The tribunal heard conflicting evidence as to the position of Mr McMillan in the respondent company and concerning what was said, about Mr McMillan's role, to the 20 or so employees of the factory. The respondents state that they explained to the employees at a meeting that Mr McMillan was coming in as a consultant to re-arrange the production lines and give other assistance to management. The evidence of the claimant and his other witnesses, who were present at the meeting with Mr McMillan, is that Mr McMillan was introduced to the workforce as a new manager and that the employees should accept instructions from Mr McMillan as he was a manager. Mr Buchanan gave evidence, that he explained the role of Mr McMillan as that of consultant. However the claimant and his witnesses were adamant that Mr McMillan was introduced to the employees as a new manager and that they were instructed to follow his directions. Despite the fact that his payment was made in response to invoices, clearly showing that Mr McMillan was a consultant, the tribunal accept the evidence of the claimant that he was introduced to the work force as a manager.

On being requested to do so, Mr McMillan signed the request for leave form for the claimant in respect of his trip to Australia. Mr McMillan signed this as a manager and put the form in his desk rather than submit it through the office for processing in the normal way.

In the meantime, Mr McAllister, who obviously knew about the claimant's proposed trip to Australia informed Mr Buchanan about the trip.

About a week before the claimant was to go to Australia he requested the loan of a vehicle from Mr Buchanan. The claimant was moving house and needed the vehicle for furniture removal. At that discussion, the claimant did not mention his trip to Australia and Mr Buchanan did not raise the matter either.

On 22 November 2004 the claimant's P45 stating a leaving date of 5 November 2004, was forwarded to his home address. The claimant was informed about this when he spoke to his family from Australia.

The tribunal heard two conflicting reports from Mr Buchanan as to why he asked his staff to send out the claimant's P45. At first Mr Buchanan said that it was a misunderstanding that he had not meant to send the P45. However on being questioned further he admitted that the misunderstanding was not as to whether or not the claimant had left his employment but whether or not the claimant was going to return from Australia.

The tribunal finds that the respondent sent the claimant's P45 to his home intending to thus terminate the claimant's employment. This finding by the tribunal is reinforced by the respondent's subsequent letter to the claimant of 10 December 2004 where he states:-

"I had already discussed your position with Mr McAllister and am pleased to offer you a position with Buchanan Wire Mesh Ltd at the same salary you were getting before you went to Australia."

After Mr Buchanan had sent out the P45 he had a discussion with Mr McAllister, at which Mr Buchanan appears to have reconsidered his somewhat hasty decision to dismiss the claimant and instructed Mr McAllister to make arrangements to get the claimant to return to his employment.

Mr McAllister had a telephone conversation with the claimant in Australia at which Mr McAllister asked the claimant to contact him when he got back and told him that his job was there.

A meeting was held on 9 December 2004 upon the claimant's return from Australia. Unfortunately due to Mr Buchanan's wife being unwell, Mr Buchanan was late for the meeting and the claimant had left before he arrived. However on the Friday 10 December 2004, the following day, Mr Buchanan wrote to the claimant. The first substantive paragraph has already been quoted above whereby Mr Buchanan offered the claimant a position at the same salary as he was getting before he went to Australia. He went on to state:-

"Your contract will be continued with BWM with no differences to your employment rights.

Mr McAllister was to contact you asking you to start work again at 7.00 am on Monday 13 December 2004 if that is suitable.

Looking forward to seeing you on Monday."

The claimant did not report for work on 13 December 2004 and the next contact between Mr Buchanan and the claimant was on 23 December 2004 when Mr Buchanan telephoned to the claimant asking when he was going to return to work. The claimant made it clear to Mr Buchanan that he was not going to return.

The law

Under Article 126(1) of the Employment Rights (Northern Ireland) Order 1996:-

"An employee has the right not to be unfairly dismissed by his employer."

The action of sending the P45 form to the claimant's home stating a date of leaving of 5 November 2004 was tantamount to a dismissal although no words of dismissal were used. The claimant took the receipt of the P45 as a dismissal and it is clear that the respondent intended to dismiss the claimant as can be seen from the subsequent letter of 10 December 2004.

Decision of the tribunal

The tribunal is satisfied that the claimant was unfairly dismissed because the respondent dismissed him without observing any of the proper procedures which an employee is entitled to expect before he or she is dismissed. The respondent summarily dismissed the claimant without giving him a right of a hearing so that his side of the matter could be aired.

The tribunal considered the way in which the claimant had been dismissed. His P45 was sent in the post to his address after he had gone to Australia. There is a passage in Tolley's Employment Law Service under unfair dismissal U4010 which states that sending of the P45 alone does not amount to a dismissal. There must be circumstances such as an indication by the employer that the employment will continue until the P45 is received, which showed that the sending of the P45 is an act of dismissal. (Frederick Ray v Davidson [EAT 678/79]). In this case the fact that the date on the P45 was the date on which the claimant went on his extended holiday, together with the conversation between Mr McAllister and the claimant, when the claimant returned from Australia, in which Mr McAllister invited the claimant to come to the office to discuss the situation with a view to returning to work, lead the tribunal to hold, that the sending of the P45. was Mr Buchanan's way of dismissing the claimant. There is no doubt that the claimant viewed the receipt of his P45 in this manner as a dismissal by the respondent and the tribunal hold that any reasonable person would have so viewed the receipt of that document in this way. The tribunal are supported in this view by the words of Mr Justice Talbot in the case mentioned above of Frederick Ray v Davidson, where he said, "the sending of the P45 cannot in law amount to a termination of the contract, it must depend upon the particular circumstances of the case"

The tribunal having held that the claimant was unfairly dismissed by the respondents proceeded to consider whether the claimant was entitled to any compensation. This for the reason, that under Article 156 of the Order, any basic award shall be reduced as set out in that Article, to such extent as the tribunal considers just and equitable, having regard to the finding. The tribunal, having found that the respondent, in his letter of 10 December 2004, had offered the claimant his job, with no difference to his employment rights and at the same salary as he was getting before he went to Australia. The only query which the claimant raised at the tribunal was that he was being offered a position with the respondent but the position was not clearly set out in the letter. The tribunal considered that the claimant only had to speak to Mr McAllister or Mr Buchanan to clarify this point and undoubtedly he would have received his previous job back. He was a key worker in the business and the tribunal hold that he was unreasonable in not clarifying this matter of his position in the business for himself. The tribunal therefore reduce the basic award to nil.

Under Article 159(3) of the Order it is stated that:-

"In a case where the amount of the basic award is reduced under Article 153(4) the amount of the special award shall be reduced by the same fraction."

The tribunal therefore make no award under the compensatory award.

The tribunal for the sake of completeness, having considered these matters hold that had they had to make a compensatory or basic award that the basic award would have been reduced under the provisions of the Order by 20%, as the tribunal considers that the conduct of the claimant before his dismissal was such, that it would be just and equitable to reduce the amount it awards by that percentage.

The reason for the reduction is that the claimant knew that he was a key worker in the business of the respondent and had been told by Mr McAllister that he should clear his holiday arrangements with Mr Buchanan, which the claimant failed to do. He had numerous opportunities during the Autumn to raise the matter with Mr Buchanan, including the obvious one when he went to speak to him about borrowing the van. The tribunal holds that even though Mr McMillan was in the eyes of the claimant a manager who was entitled to sign his leave form he had been told by Mr McAllister to speak to Mr Buchanan and the tribunal holds that this failure on the claimant's part was the root of the problem and that the claimant knew that he should have spoken to Mr Buchanan at least before he left on his holiday. The tribunal was conscious of the size of the business which is very much a family business where everybody knows everybody else. By the same token the tribunal would be critical of Mr Buchanan for not having raised the matter of the holiday with the claimant.

Chairman:

Date and place of hearing: 11 September 2006 Londonderry and 26 October 2006, Limavady

Date decision recorded in register and issued to parties: