Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 719/05

CLAIMANT: John McCrea

RESPONDENTS: Interlink Ireland Ltd

DECISION

The decision of the tribunal is that the claimant was unfairly dismissed and is entitled to a payment of £1,120.00. The claim for breach of contract is dismissed.

Constitution of the Tribunal

Chairman: Ms F Oliver

Members: Mr Aubrey Crawford

Mrs Noreen Wright

Appearances

The claimant appeared and represented himself.

The respondent appeared and was represented by Mr Harry Coll, Solicitor of Messrs Elliott Duffy and Garrett.

1. Sources of Evidence

The tribunal heard evidence from the Mr Simon Warwick, Mr Brendan O'Neill and Mr Conor O'Neill for the respondent and from the claimant, Mr Simon Odise and Mrs Jean McCrea for the claimant.

2. The Claim and the Defence

The claimant claimed that he had been unfairly dismissed by the respondent. The respondent denied that the claimant had been unfairly dismissed. The claimant also claimed that he was due bonus pay, commission and notice pay. The respondent denied that there were any outstanding contractual payments.

3. Issues

The first issue for the tribunal was whether the respondent's behaviour prior to the claimant's letter of resignation of 31 March amounted to constructive dismissal.

The second issue for the tribunal was whether the claimant had been unfairly dismissed by the respondent on 15 April 2005.

The third issue was whether there had been a breach of contract.

4. Analysis of the Evidence

It was difficult to reconcile the evidence of the parties in relation to the meeting which was scheduled for 15 April 2005. We found the evidence of Mrs McCrea to be straightforward and convincing. We had doubts regarding the respondent's availability for the meeting at the appointed time. It is possible that the respondent did not expect the claimant to turn up for the meeting but if this was so, it would have been better if they had indicated this. In any event, on this important issue the respondent accepted that the claimant had been in the hotel. We accept Mrs McCrea's evidence that the claimant approached the reception desk on two occasions and asked for Mr Conor O'Neill. She also gave credible evidence that members of the hotel staff had actually gone to look for the respondent.

5. Findings of Fact

(1) The respondent is a freight operator operating within Ireland and the UK. It has a total staff of approximately 230.

(2) The claimant was employed by the respondent from 24 June 2002 until 15 April 2005. He was 35 at the date of dismissal and he was earning £407.82 net per month.

(3) The claimant was employed as a sales executive reporting to Mr Gavin Warwick. Initially, he was involved in sales within Ireland but this evolved and his role became that of inbound freight selling in Great Britain.

(4) On 6 January 2005 a meeting took place between the claimant, Mr Gavin Warwick and Mr Conor O'Neill in which the changing role and changing salary structure was discussed. According to the respondent, the territory bonus which the claimant had been receiving was no longer appropriate but the claimant was to be given an enhanced commission package to reflect his changed role. The respondent explained that the territory bonus was no longer appropriate as there were no depots in England. The claimant considered that he remained entitled to the bonus.

(5) This issue of the bonus and other treatment was raised by the claimant by letter dated 25 January 2005 on the first page and 2 February 2005 on the second page and by e-mail of 2 February 2005 to the CEO of the respondent company, Mr Brendan O'Neill.

(6) Mr Brendan O'Neill met with the claimant on 22 February 2005 and Mr Brendan O'Neill sent a letter to the claimant on 16 March 2005 outlining the way forward as he saw it.

(7) On 31 March 2005, the claimant submitted a letter of resignation indicating that he intended to leave the employment on 30 April 2005, giving 30 days notice.

(8) On 31 March 2005, the respondent became aware of a reply e-mail from an employee of a competitor company Mr Kevin Yorath to the claimant which led the respondent to believe that the claimant had been actively canvassing a potential customer Nightspeed on behalf of an alternative operator whilst still employed by the respondent.

(9) The respondent also became aware of the initial e-mail dated 30 March 2005 from the claimant to Mr Kevin Yorath of Nightspeed. This e-mail contained inter alia the following statements:

As I will not be able to use interlink for UK movement I would hope that Nightspeed can do all parcel movements for Hales freight.

I will be more than happy to give you some of Interlinks customers and pricing and maybe together we can get some business.

(10) The claimant was contacted by Mr Warwick on 2 April and the claimant and Mr Warwick met on 4 April 2005. The claimant was informed that he was being suspended on full pay pending a disciplinary hearing.

(11) A letter dated 6 April was sent to the claimant indicating that a disciplinary hearing would take place on Friday 15 April 2005 in the Stormont Hotel at 1.30 p.m. This letter set out the alleged misconduct of the employee and indicated that disciplinary action up to and including dismissal was being contemplated. The claimant was informed that the disciplinary panel would be Mr Conor O'Neill and Mr Colin Kennedy.

(12) On the night of 14 April 2005 there was an exchange of e-mails regarding the correct contract of employment.

(13) The meeting scheduled for the 15 April 2005 did not take place.

(14) The claimant produced a letter from the Operations Manager of Stormont Hotel confirming that the claimant had been present at the hotel on 15 April 2005. Mrs McCrea also gave evidence that she had accompanied the claimant to the Stormont Hotel on the 15 April 2005. In the event, the respondent accepted in oral evidence that the claimant had attended at the Stormont Hotel on the 15 April 2005 so this fact was not in dispute.

(15) The claimant left the hotel shortly after the scheduled meeting time and contacted Mr Conor O'Neill by text message.

(16) Mr O'Neill phoned the claimant on his mobile just before 2.00p.m. and a discussion ensued. Mr O'Neill asked the claimant to return to the hotel but the claimant explained that he was unable to do so as he was already on his way home and the person with him, Mrs McCrea had a medical appointment. The claimant asked for the meeting to be rescheduled.

(17) The respondent did not reschedule the meeting and instead dismissed the claimant in his absence. Mr Colin Kennedy who was to attend the Disciplinary hearing did not attend at the hotel on 15 April 2005.

(18) By letter dated 15 April 2005, the claimant was informed that he was dismissed and given a right of appeal. The appeal hearing took place on 13 May 2005 and was heard by Mr Brendan O'Neill. The dismissal was upheld.

6. The Law

Article 126 of the Employment Rights (Northern Ireland) Order 1996 (The 1996 Order) gives an employee the right not to be unfairly dismissed.

A termination of the contract by the employee will constitute a dismissal within the Order if he is entitled to so terminate it because of the employer's conduct. This is widely known as a 'constructive dismissal'. As the Court of Appeal made clear in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, it is not enough for the employee to leave merely because the employer has acted unreasonably; his conduct must amount to a breach of the contract of employment.

Harvey at Paragraph [403] sets out clearly the four conditions which must be met if an employee is to claim constructive dismissal successfully.

(1) There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.

(2) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

(3) He must leave in response to the breach and not for some other, unconnected reason.

(4) He must not delay too long in terminating the contract in response to the employer's breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.

Article 130 (1) states that in determining whether a dismissal is fair or unfair it is for the respondent to show that the reason for the dismissal is a reason falling within Article 130 (2) of the 1996 Order which includes a reason relating to the conduct of the employee.

Article 130 (4) states that where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

(a) depends on whether in the circumstances (including the size and administration of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employer, and

(b) shall be determined in accordance with the equity and substantial merits of the case.

Article 130A of the 1996 Order makes further provisions about procedural fairness as follows:

'(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –

(a) one of the procedures set out in Part 1 of Schedule 2 to The Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,

(b) the procedure has not been completed, and

(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

(2) Subject to subsection (1), failure by an employer to follow a procedure in relation to the dismissal of an employer shall not be regarded for the purposes of Article 130 (4) (a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

(3) For the purposes of this Article, any question as to the application of a procedure set out in Part 1 of Schedule 2 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17.

Part 1 of Schedule 2 to the Employment (Northern Ireland) Order 2003 outlines the procedure as follows:

Chapter 1 Standard Procedure

"Step 1: Statement of grounds for action and invitation to meeting.

1.(1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

Step 2: Meeting

2.(1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.

(2) The meeting must not take place unless-

(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and

(b) the employee has had a reasonable opportunity to consider his response to that information.

(3) The employee must take all reasonable steps to attend the meeting.

(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.

Step 3: Appeal

3.(1) If the employee does wish to appeal, he must inform the employer.

(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.

(3) The employee must take all reasonable steps to attend the meeting.

(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.

(5) After the appeal meeting, the employer must inform the employee of his final decision."

Article 13 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (The 2004 Regulations) states as follows-

13 (1) If it is not reasonably practicable for:-

(a) the employee or if he is exercising his right under Article 12 of the Order of 1999 (right to be accompanied), his companion; or

(b) the employer,

to attend a meeting organised in accordance with the applicable statutory procedure for a reason which was not foreseeable when the meeting was arranged, the employee or as the case may be the employer shall not be treated as having failed to comply with the requirements of the procedure.

(2) In the circumstances set out in paragraph (1), the employer shall continue to be under a duty in the applicable statutory procedure to invite the employee to attend a meeting.

Article 154 of 1996 Order deals with the question of the compensation payable in a situation where the claimant is found to be unfairly dismissed for procedural unfairness under Article 130A(1). It states as follows:

(1A) Where –

(a) an employee is regarded as unfairly dismissed by virtue of Article 130a (1) (whether or not the dismissal is unfair or regarded as unfair for any other reason),

(b) an award of compensation falls to be made under Article146 (4), and

(c) the amount of the award under Article 152 (1)(a), before any reduction under Articles 156(3A) or (4), is less than the amount of four weeks' pay,

the employment tribunal shall, subject to subsection (1B), increase the award under s.152(1)(a) to the amount of four week's pay

(1B) An employment tribunal shall not be required by subsection (1A) to increase the amount of an award if it considers that the increase would result in injustice to the employer.'

7. Application of the Law and Findings of Fact to the Issues

(1) Having considered the evidence we do not consider that the respondent's behaviour prior to the claimant's letter of resignation amounted to constructive dismissal. There was no fundamental breach of the employment relationship. We note that the claimant did not act immediately after what he perceived to be the unfair and prejudicial decision to alter his payment structure. He remained in employment with the respondent and his evidence was that he would have remained there until he found other employment. We find that the claimant was not constructively dismissed.

(2) In this case, the Standard Statutory Dismissal Procedure applied. Under Step 2 the claimant was entitled to a meeting with the respondent before he was dismissed. This meeting failed to take place. The question for the tribunal was whether this failure was wholly or mainly attributable to the actions of the respondent. If so the dismissal was procedurally unfair and a finding of unfair dismissal must be made.

(3) The tribunal concludes that the failure to have a meeting was mainly attributable to the actions of the respondent on the following basis:

(a) The tribunal accepts, as indeed did the respondent at hearing, that the claimant and his companion were in the Stormont Hotel at the appointed time.

(b) The tribunal was not convinced that Mr. Conor O'Neill was in the hotel at the appointed time although we accept that he was probably there at some time. The failure to provide any documentary form of evidence to confirm that the respondent was in the Hotel was noted.

(c) The tribunal also noted that the second panel member referred to in the letter of 6 April 2005 did not turn up for the hearing. No explanation was given for his failure to attend.

(d) The tribunal also noted that the respondent's Response refers to the claimant's "unexplained absence" on the 15 April 2005 whereas at the time when Mr. Conor O'Neill proceeded to dismiss the claimant he had actually been given an explanation for what had occurred.

(4) In all these circumstances and remembering also that the claimant asked for the meeting to be rescheduled for a later date, we believe that the claimant should have been offered a further meeting. We therefore believe that the respondent dismissed the claimant before Step 2 of the Standard Procedure had been completed, that the failure to have a step 2 meeting was mainly attributable to the respondent and that the claimant was therefore unfairly dismissed.

(5) In situations where the Statutory Dismissal Procedure has not been followed there is no saving provision to render what would otherwise have been an unfair decision fair where the employer can show that he would have dismissed the employee in any event. However, the tribunal considered the issue in view of its impact on the entitlement to any compensatory award.

(6) The tribunal finds that the conduct complained of by the respondent i.e. the attempt by the claimant to divert prospective and actual customers to a competitor of the respondent did amount to gross misconduct. We did not find the claimant's attempted explanation to be credible. In particular, we did not accept his explanation that the two paragraphs in his e-mail of 30 March 2005 and quoted at paragraph 8 above referred to customers who did not fit Interlink's model. We found the statements to be a clear and unambiguous attempt to poach the respondent's customers. If the proper procedures had been carried out, the respondent would have been entitled to dismiss the claimant on the basis of the evidence which it had before it at the date of dismissal and the tribunal finds that it would have done so.

(7) We therefore find that even if the respondent had carried out the proper procedures there was a 100% chance of dismissal.

(8) The tribunal finds that the claimant has not proved on the balance of probability that there had been any breach of contract. He made vague and unsubstantiated references to bonus payments and outstanding commission but did not back this up with any further evidence.

8. Compensation

This is set out in the Employment Rights (Northern Ireland) Order 1996 at Article 152.

Basic Award

This is calculated in accordance with Article 153 as follows:

Complete years of service 2

Age at dismissal 35

Week's pay (gross) (statutory maximum) £280.00

Basic award 1 weeks pay x 2 £560.00

However in view of Article 154 (1A) the claimant is entitled to at least four weeks pay making a total of

1 week's pay x 4 £1,120.00

Compensatory Award

In view of the finding that there was a 100% chance that the claimant would have been dismissed even if the statutory procedures had been followed a compensatory award is not appropriate and is not made.

This is a relevant decision for the purpose of the Industrial Tribunals (Interest) Order

(Northern Ireland) 1990.

Chairman

Date and place of hearing: 10 October 2007, Belfast

Date decision recorded in register and issued to parties: