Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 2585/06

CLAIMANT: Stuart Sederquest

RESPONDENT: Woodfloor Warehouse Limited

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed. This is the written record of the decision which was given orally on the day of the hearing.

Constitution of Tribunal:

Chairman: Mr Cross

Panel Members: Ms Hamilton

Mr Hunter

Appearances:

CLAIMANT BY: The claimant was not represented and appeared in person.

RESPONDENT BY: The respondent was represented by Mr Burridge of Peninsula Business Services Limited.

The Issues

1. The claimant, who was employed as a salesman by the respondent, had a heated dispute with his line manager Mr Corbett. This case arises out of the events that followed the dispute and the question of whether the claimant's dismissal by the respondent was fair.

The Evidence

2. The tribunal heard evidence from the claimant, Mr Corbett, Ms J Crozier and Mr Johnson.

Findings of Fact

3. A serious incident arose in the respondent's shop on the morning of 25 August 2006, when the claimant began to question, in an aggressive manner, a decision made by his line manager John Corbett.
4. This led to a heated argument in the shop. Mr Corbett, anxious to avoid an unseemly row in front of customers, told the claimant to leave and return home to cool down.
5. The tribunal was not able to reach a conclusion as to whether the words "you're sacked", or similar words of dismissal were used by Mr Corbett. However as Mr Corbett was not authorised to dismiss an employee and as this was known to the claimant, the tribunal make no finding of fact on exactly what was said. Tempers were high and voices were raised on both sides. This resulted in the claimant leaving the shop.
6. Mr Corbett, later that morning, during a telephone call with the claimant, tried to get the claimant to return to the shop but was unsuccessful. After this telephone conversation Mr Corbett reported the matter to the directors of the respondent. No action was taken that day as it was hoped that the claimant would reappear in the morning to continue his employment.
7. However during that evening of 25 August the claimant made a number of abusive and threatening voice message telephone calls and sent a number of text messages to Mr Corbett and to a fellow employee at the shop, Mr Trevor Johnson. These upset the two men concerned who told the directors that they were not happy to work with the claimant in future.
8. The following morning Ms Julia Crozier the manager of the respondent had to work in the shop on her day off, to cover for the claimant who had not returned to work. The next working day after Saturday 26 August was the Bank Holiday Monday the 28^th. This was a very busy day for Ms Crozier but she did speak to the claimant on the telephone. He asked why he was fired? Ms Crozier told him that he was not fired. She asked why he had not returned to work when Mr Corbett had asked him to do so. His answer was to expound a lot of abuse about Mr Corbett. Ms Crozier tried to reason with him and suggested that he return and make his peace with Mr Corbett and attend a meeting to discuss the incident and explain his actions. However the claimant refused to come to any meeting and the call proved unfruitful.
9. On 29 August 2006 Ms Crozier wrote a letter to the claimant. This set out the respondent's case about the claimant's absence from work, the abusive texts and calls to his colleagues in the shop. It went on to state that the respondent: - "had no option but to terminate employment for the following reasons:-

Using unacceptable language.

Aggressive and intimidating behaviour towards your manager.

Sending intimidating texts to other staff members.

If you would like to discuss this matter further please contact myself to arrange a meeting".

10. The claimant failed to respond to this letter. The next contact that the respondent had with the claimant, was when it received a letter dated 7 September 2006 from solicitors acting for the claimant, requesting an appeal against the alleged dismissal of the claimant. The respondent replied on 13 September 2006 to take up the request for an appeal and asking the claimant to contact Ms Crozier or the director to set up an appeal. However the claimant never took this possibility of an appeal any further.

THE LAW

11. Under Article 130(1) of The Employment Rights (Northern Ireland) Order 1996 ("the Order"), it is for the employer to show that the reason for the dismissal of the employee falls within one of the reasons for dismissal set out in sub-section (2) of Article 130. In this case the respondent has given the reason for the dismissal as the conduct of the claimant, his employee. Once that is established the respondent employer must show to the tribunal, that bearing in mind the size and resources of the respondent, it acted reasonably in treating the conduct as a sufficient reason for dismissing the claimant.
12. One of the matters that exercised this tribunal, was the fact that the well known procedures for dealing with a complaint of misconduct against an employee, appeared in this case to have been followed in part only. There was no interview with the claimant to ascertain his side of the problem and there was no disciplinary hearing at which the claimant could put his case. However the law does provide for situations such as this in the terms of Article 130A of the Order. This provides that where an employer has failed to follow procedures in relation to the dismissal of an employee, this shall not of itself make the employer's action of dismissing the employee unreasonable, if the employer shows that it would have dismissed the employee if it had followed the procedures.

DECISION

13. The tribunal reached the unanimous decision that the dismissal of the claimant was not unfair. The tribunal holds that the claimant had acted in an aggressive manner in the shop on the Friday and the tribunal holds that his line manager, Mr Corbett, was quite entitled to ask him to leave the shop and to take time to calm down, as a customer might have entered the shop at any time and the sight of the two men having a violent argument would have been very off putting. Shortly after the claimant left the shop he spoke to Mr Corbett on the telephone and Mr Corbett asked him to come back in. The tribunal accepts that this is indicative that even if the words, "you're sacked", were used by Mr Corbett, which he had no authority to use, the fact that he asked the claimant to return so quickly belies any serious intention to dismiss the claimant. The claimant knew that Mr Corbett did not have authority to dismiss him. Despite this conversation, at an interval from the incident that would have allowed tempers to subside, the claimant refused to return. The fact that this conversation was witnessed by the other salesman in the shop, Mr Johnson, reinforces the tribunal's view that the respondent's version of these events is the true version. That evening the claimant sent the text and voice messages to Mr Corbett and to Mr Johnson. The tribunal saw one of the text messages which was mildly threatening. However the tribunal accepts the evidence of Mr Johnson that the voice messages were more aggressive. The tribunal holds that these messages went towards destroying the trust between employer and employee, that is at the basis of any contract of employment. Furthermore it created a problem for the respondent, in that its other two employees in the shop were refusing to work with the claimant, as a result of the threatening messages.
14. The claimant would have known that the August Bank Holiday weekend would be very busy but failed to return to work on the Saturday. This was not surprising in view of the contents of the messages to his work colleagues. The tribunal accepts that on the Monday the Manager Ms Crozier was in contact with the claimant and asked him to come in for a discussion concerning the situation. The tribunal accepts Ms Crozier's version of the discussion. This ended the verbal contact between the parties. However in the letter that Ms Crozier wrote to the claimant, in which she dismissed him, she did leave the way open for a meeting, even at that late stage, to try and resolve the matter in some other way. The tribunal accepts the respondent's evidence that the claimant was an excellent salesman and would be hard to replace. The tribunal accepts the respondent's evidence that the claimant had a fiery temper at times but was good with customers and that the respondents would be sorry to loose him.
15. Dealing with the lack of procedure in the disciplinary process; the tribunal has sympathy for the respondent. This was a small business and it was a very busy weekend of trading. The tribunal holds that Ms Crozier did endeavour to get the claimant to come in to discuss the situation but the claimant refused. She then wrote to the claimant and again asked him in for a discussion. In that letter Ms Crozier did say that the claimant was dismissed, before she added the paragraph inviting him in for the discussion. It would have been better if the first letter to the claimant had asked the claimant to come to the meeting, with no reference to the dismissal. However the tribunal considers that Ms Crozier had asked the claimant to come in to the shop during the Bank Holiday discussion, this was refused by the claimant. Furthermore the claimant was offered an appeal which he failed to take up. This followed the letter from his solicitor to the respondent.
16. The tribunal holds that the claimant was not prepared to go through any disciplinary procedure with the respondent. Even if the respondent had set up a disciplinary meeting and asked the claimant to come to it, he would not have availed himself of it and the meeting would not have taken place. In these circumstances the tribunal holds that the respondent would have reached the same decision to dismiss the claimant even if it had adhered to all the standard disciplinary procedures to the letter.
17. For the above reasons the tribunal holds that the dismissal of the claimant was not unfair.

Chairman:

Date and place of hearing: 2 May 2007, Belfast.

Date decision recorded in register and issued to parties: