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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McLaughlin v Corscadden (t/a Castleroe Car Breakers) [2008] NIIT 1375_07IT (14 February 2008)
URL: http://www.bailii.org/nie/cases/NIIT/2008/1375_07IT.html
Cite as: [2008] NIIT 1375_07IT, [2008] NIIT 1375_7IT
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- The claimant, prior to making his originating claim, wrote a lengthy letter of resignation and grievance to the respondent dated 20 April 2007. No response was made to this letter. The claimant lodged his originating claim with the tribunal and it was forwarded to the respondent on 19 June 2007. No response was filed by the respondent; nor did the respondent appear at the hearing.
- The claimant's claim was that he had been constructively dismissed. By virtue of Article 127 of the Employment Rights (Northern Ireland) Order 1996 an employee is taken to be so dismissed if he terminates the contract under which he is employed in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct. The case law has developed to indicate that in order to satisfy this provision a number of conditions must be met. There must be a breach of contract by the employer, the breach must be sufficiently important to justify the employee resigning, the employee must leave in response to the breach and not for some other unconnected reason and, finally, he must not delay too long in doing so. This is not the same thing as saying that an employee is justified in terminating his contract of employment in the face of unreasonable conduct. However, the courts have accepted that an employer is under an implied duty not to act in such a way as is 'likely to destroy or seriously damage the relationship of confidence and trust between employer and employee'.
- The tribunal found the claimant to be a convincing witness and accepted his evidence. The tribunal found that the claimant had commenced work with the respondent in excess of 10 years prior to the termination of his contract of employment. At the time the contract was terminated he was in receipt of £90 per week by way of pay. He was not, at that level, subject to tax or national insurance. His relationship with the respondent was good as they had been longstanding friends. However, during the course of 2006 this state of affairs changed. The respondent's attitude changed and he became nasty and aggressive. Things got particularly bad after the claimant returned from holiday in July 2006. During the course of that month the claimant, who had taken full responsibility for the operation of the respondent's yard in the respondent's absence, was accused of running the business into the ground, that he had made the business a f***ing joke and that there would be no more reading newspapers in the office, even during breaks. The respondent also removed, without warning, the microwave and toaster, which the staff, including the claimant, had used for tea breaks and for lunch, and thrown it into a disused ambulance with no power in it where, the respondent said, they could use it.
- The arrangements for holidays between the claimant and the respondent were that the respondent would take Christmas Day, Boxing Day and New Years Day, the 12 and 13 July and Easter Monday together with one week's holiday. It appeared to the tribunal that this arrangement operated on the calendar year. The claimant had taken his summer holidays in July 2006. During the course of 2007 he had taken New Years Day and Easter Monday.
- Applying the legal analysis set out above to the facts found, the tribunal considered that the conduct of the respondent was such as to amount to a breach of the implied term in any contract of employment that employers should not engage in conduct likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. In this case, the respondent had failed to listen to or investigate legitimate complaints or grievances raised with him by the claimant; he had singled him out for gratuitous rudeness and abuse; and he had disadvantaged him by comparison with other employees without any reason. In the tribunal's view the claimant was justified in terminating his contract of employment and accordingly the tribunal finds that the claimant was unfairly dismissed.
- At the time of termination of his contract of employment the claimant had had 10 full years service of which one full year was during a period when he was not below the age of 41 and nine full years were when he was below the age of 41 but above the age of 22. Accordingly, by way of a basic award the claimant is entitled to one week's pay for each of the nine years when he was above the age of 22 and below the age of 41 and one and one half week's pay for the year in which he was above the age of 41, making in total 101/2 weeks pay. The claimant's gross and net wage at the time of the termination of his employment was £90 and accordingly the basic award amounts to 101/2 x £90 = £945.
- The claimant was not paid after 6 April 2007. He started work again in a new job at a similar wage on 28 April 2007. Accordingly, he is entitled to three weeks wages for the period by way of a compensatory award for the period between jobs. The claimant is therefore entitled by way of compensatory award to three weeks wages @ £90 per week = £270.
- The claimant was entitled, under the Working Time Regulations, to 20 days, or four weeks holiday in any year. He had worked 14 weeks out of the calendar year and is therefore entitled to 14/52 of his holiday entitlement. 14/52 x 20 = 5.4. The claimant is therefore entitled to 5.4 days holiday for the year 2007 from which must be deducted the two days he had actually taken. This leaves a total of 3.4 days which, under the Regulations, is rounded up to 4. Accordingly, the claimant is entitled to 4 days holiday. He was paid £90 per week for a week in which he was available daily. Accordingly, he is entitled to 4/5 x £90 by way of holiday pay = £72.
- The claimant raised a grievance with the respondent. The respondent took no action whatsoever on foot of this grievance. Accordingly, the respondent failed to satisfy the provisions of the requirements of the Employment (Northern Ireland) Order 2003. That Order provides that in the event of such failure a tribunal shall increase any award that it makes by a minimum of 10% and may increase it up to a maximum of 50%. In light of the respondent's failure even to acknowledge the grievance in this case, the tribunal considers that an increase of 25% would be appropriate. Applying this figure to the basic award of £745 and the compensatory award of £270 gives an increase of £303.75. The figures amount in total to £1,215 + £303.75 = £1,518.75. The award of holiday pay is unaffected. The total amount therefore by the respondent to the claimant amounts to £1,518.75 + £72 = £1,590.75.
- Damages
- Recoupment
- Interest
McLaughlin v Corscadden (t/a Castleroe Car Breakers) [2008] NIIT 1375_07IT (14 February 2008)
The unanimous decision of the tribunal is that the claimant was unfairly dismissed and that the respondent shall pay to the claimant the sum of £1,590.75 by way of compensation.
Constitution of Tribunal:
Chairman: Mr Davey
Members: Mr Huston
Mr Robinson
Appearances:
The claimant appeared in person.
The respondent did not appear.
Reasons
During the course of August 2006 the claimant requested a wetsuit for working outside in bad weather. The respondent refused to purchase such an article, indicating that the claimant should buy his own. Subsequently the respondent gave another member of staff the money with which to buy a wetsuit and, on being approached by the claimant, again refused to purchase a wetsuit, stating that the claimant could afford to buy his own. The respondent also refused to purchase latex gloves for the use of the staff. Shortly thereafter the respondent insisted on the claimant changing a tyre without gloves in the knowledge that the respondent's dog had just urinated on the tyre. During that month the respondent forbade the claimant to talk to his work colleague or to the customers.
In October 2006, in response to a further request for the provision of latex gloves, the respondent replied that he did not have to change car parts and did not require gloves and accordingly he would not be paying for gloves. The claimant purchased his own gloves. The respondent ordered the claimant to find a part for a customer who would be coming for it in 15 minutes and threatened that if he could not get it within that time he should look for a job working with the Council as this would be easier.
In November 2006 when the claimant enquired why the respondent was being so unpleasant he replied that it was his yard, that he could do what he wanted, and that if the claimant did not like the way things were being done he could "f*** off down the lane". In December the respondent threatened the claimant that if he did not shape himself he could look for a job elsewhere. The respondent did not indicate how the claimant was to 'shape' himself merely saying that there were going to be changes in future.
During the course of February 2007 the respondent demanded that the claimant stay an extra 15 minutes after his official finishing time to compensate for fixing a broken lace stating that he could tie his laces in his own time and that this was a first warning. During the course of February the claimant's toolbox was broken into and some of his tools were stolen. The respondent indicated that his insurers would deal with that. The police were called in relation to this incident. Later in the month when the claimant asked the respondent about the position about the insurance he denied having stated that his insurers would cover it and said that the loss would fall on the claimant. Later in the month, when the claimant's toolbox had been forced open again and the claimant reported it, the respondent indicated that another member of staff had done this and that if the claimant raised any trouble about it he would be out. The claimant also, at this time, raised an issue with the respondent about another new member of staff, but the respondent took no interest and no action.
During the course of March 2007 the respondent threatened the claimant with being replaced by 'good Polish men'. When the claimant was off work with stress the respondent initially refused to pay him any sick pay, but subsequently paid him telling him to take it before he got stressed more. He also stated that if he had not purchased the house in which he was now living he would not be under stress.
During the course of April 2007 the respondent continued to harass the claimant and to upbraid him in front of customers. He also stated, when the claimant objected to lying under a car which was being held up by a forklift truck with leaking hydraulics, that if anything did fall on him he would not be missed. He told the claimant that he did not care how he got the parts off this vehicle but just to get them off. The following day, 6 April 2007, when the claimant was due to see his GP, the respondent told him not to tell the GP that he was stressed because of his work, that he did not know what stress was. At this time the claimant felt that he really could not continue in the face of his treatment. He did not return to work after that and received no further pay. On 20 April 2007 he wrote his letter of resignation.
The claimant enquired if he was entitled to damages for the injuries sustained by him in relation to the respondent's treatment of him. Damages for injury to feelings are not available in cases of unfair dismissal. The tribunal did not consider that any injury which may have occurred to the claimant occurred by reason of the dismissal itself. Accordingly, it did not consider it appropriate to consider an award of damages in this case. This would be a matter for a different forum.
No question of recoupment arises.
This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 23 November 2007, Belfast
Date decision recorded in register and issued to parties: