Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1701/07

CLAIMANT: Christian Cowan

RESPONDENT: Red Sky Group Limited

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed. The remedy will be determined at a separate hearing.

Constitution of Tribunal:

Chairman: Mr Kelly

Members: Mrs Torrans

Mrs Gregg

Appearances:

The claimant was represented by Mr Michael Kiddle of UCAT.

The respondent was represented by Mr Snoddy.

THE ISSUE

(1) The issue for the tribunal to determine was whether the claimant had been unfairly dismissed by the respondent within the meaning of part XI of The Employment Rights (Northern Ireland) Order 1996.

RELEVANT FACTS

(2) Neither party was fully prepared for the hearing of this matter. No schedule of loss had been prepared or agreed. Proof of earnings in relation to employment by the respondent was incomplete and in the case of subsequent employment obtained by the claimant not produced at all. Evidence in relation to dates was imprecise and incomplete.

(3) The claimant started work with the respondent on 31 May 1993 and worked as a service engineer and painter.

(4) The claimant was employed by the respondent throughout the period from 31 May 1993 until 4 July 2007, when he was summarily dismissed, apart from a period of approximately six months in 2006 when he was serving a prison sentence. The respondent kept the claimant's job open for him when he was in prison.

(5) On Friday 10 November 2006, Mr Snoddy, a manager employed by the respondent, telephoned the claimant and asked him to work in Norwich in England on a contract painting garage equipment from 20 November 2006. The claimant refused and argued that his partner would not be able to work certain hours in her own job if he was not there to look after their children at the weekend. The conversation was heated and the claimant put the phone down on Mr Snoddy.

(6) The claimant was given a disciplinary charge alleging a refusal to carry out a reasonable work instruction, insubordination, countermanding reasonable instructions, and showing an unsatisfactory attitude. He was invited to a disciplinary meeting on 17 November 2006 at which he was represented by Mr Kiddle.

(7) The claimant was required as a part of his probation conditions to attend an alcohol management course. The respondent indicated during the disciplinary meeting that it would have been prepared to allow the claimant to return to Belfast to attend the course on a Tuesday and then go back to England to resume work. It would have paid for the flights. However this particular point had not been raised in the telephone conversation between Mr Snoddy and the claimant on 10 November 2006. At that point, Mr Snoddy had felt that the claimant had already indicated that he could afford to miss one of the course sessions without any repercussions.

(8) During the course of the disciplinary hearing, the claimant admitted that he "flew off the handle" during the conservation on 10 November. However he alleged that he had been victimised since he had left prison and he raised several grievances relating to his work van and to his working conditions. These grievances were investigated by the respondent and were not upheld.

(9) There was a further disciplinary meeting on 15 December 2006 where the claimant was again represented by Mr Kiddle. The grievances he had raised and respondent's responses to those grievances were discussed. The claimant was advised that he would be issued with a written warning and that any further refusal to accept a reasonable instruction would result in disciplinary action.

(10) That warning issued on 10 January 2007. The claimant wrote to the respondent on 17 January 2007 and stated that he wished to appeal the disciplinary penalty. The respondent wrote back on 17 January 2007 asking for the reasons for the appeal in writing. No further action was taken by either party in relation to this matter.

(11) On Monday 2 July 2007 Mr Snoddy asked the claimant to work some overtime on a contract that the respondent had with Belfast City Council. The overtime was to take place that weekend. The claimant expressed some doubts about the weather. Mr Snoddy phoned him again later that same day at 1.30pm and asked the claimant to work overtime on that evening. The claimant refused and a heated conversation again ensued. The claimant alleged that work had been taken away from him and given to sub contractors and he stated that he was not prepared to work overtime.

(12) The claimant met Mr Snoody again on Wednesday 4 July and another heated conversation developed. Mr Snoddy summarily dismissed the claimant. His van, keys, work phone and fuel card were recovered and the claimant left the premises.

(13) A letter issued from the respondent on 4 July 2007 stating that the claimant had been summarily dismissed and stating that he had a right of appeal. The claimant sent a written appeal to the respondent on 5 July giving as his reasons, "1. I wasn't given a disciplinary hearing 2. The warnings given were unlawful".

(14) A reply issued from the respondent on the same day asking the claimant to "outline in writing his reasons for appealing the company decision". The claimant in a reply received by the respondent on 9 July pointed out that he had already given reasons for his appeal.

(15) A reply again issued from the respondent on the same date stating that "your conduct and approach to your manager was that of unquestionable gross misconduct, consequently you are summarily dismissed. Therefore there is no unlawful termination of employment. This is the outcome of your appeal as per that provided in your undated communication, received at our office on 5 July 2007".

(16) In relation to overtime paragraph 4.2 of the claimant's contract states that "you may be required to work such additional hours as are reasonably necessary for the proper performance of your duties".

THE LAW

(17) Article 130A of the Employment Rights (Northern Ireland) Order 1996 as amended

by the Employment (Northern Ireland) Order 2003 provides that :

"103A- (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 1 to

the Employment (Northern Ireland) Order 2003 (Dismissal

and Disciplinary Procedure) 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

(18) In the case of a summary dismissal, the modified procedure is set out in the schedule to the 2003 Order and in relation to the appeal process provides that:

"If the employee informs the employer of his wish to appeal, the employer must

invite him to attend a meeting".

There is no requirement to give reasons and there are no grounds on which an

employer could in the circumstances of this case refuse to hold an appeal.

DECISION

(19) The decision of the tribunal is therefore that the decision to dismiss the claimant summarily was automatically unfair because of the employer's failure to provide for an appeal. The tribunal is not in a position because of the inadequacies in the evidence produced by both sides to proceed to a finding in relation to remedies. The matter should be re-listed for a remedies hearing at which the parties must be in a position to deal in particular with the earnings of the claimant during his employment with the respondent, the earnings of the claimant in his subsequent employment gained approximately ten weeks after dismissal, the precise dates on which the claimant commenced employment with his new employer, the precise dates during which the claimant was in prison and full details of the manner in which his employment contract subsisted during that period in prison. The respondent in particular should produce all relevant documentation in relation to the claimant's employment status during this period of imprisonment.

Both parties should be in a position to address the tribunal at the remedies hearing on whether there should be a reduction in either the basic or compensatory award on the basis of the claimant's conduct.

The claimant, through his representative, should produce a detailed schedule of

loss setting out the calculation as contended for by the claimant of the basic award,

compensatory award and up lift to the compensatory award under the 2003

Order and this Schedule of loss should be furnished to the respondent at least ten

working days before the date of the remedies hearing.

(20) Even if the statutory dispute resolution procedure were not an issue in this case, the tribunal would have concluded that in all the circumstances of this case, the dismissal was unfair. The claimant was a long serving employee with a largely unblemished disciplinary record and Mr Snoddy was quite clear that he was regarded as a valuable and reliable employee. In relation to the one previous disciplinary incident in November and December 2006, the claimant had not been offered an effective appeal although he had clearly indicated his wish to appeal against the imposition of the written warning. The tribunal believes that a reasonable employer would not have summarily dismissed the claimant as a result of the incident in July 2007 even if there had been a valid written warning on his record.

Chairman:

Date and place of hearing: 29 January 2008, Belfast.

Date decision recorded in register and issued to parties: