Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REFS: 1840/07

2015/07

CLAIMANT: Declan Harley

RESPONDENT: Damian Irvine T/A Courier Services

DECISION

The unanimous decision of the tribunal is that:-

(i) The following claims are dismissed, unfair dismissal; right to written reasons for dismissal; breach of contract as to notice pay.

(ii) In breach of Article 33 of the Employment Rights (Northern Ireland) Order 1996, the respondent failed to give the claimant a written statement of particulars of employment. No award is made.

(iii) It is declared that the respondent failed to give the claimant a written itemised statement of pay in breach of Article 40 of the Employment Rights (Northern Ireland) Order 1996. No award is made.

Constitution of Tribunal:

Chairman: Mr Travers

Members: Dr Eakin

Mr Hanna

Appearances:

The claimant appeared in person and was not represented.

The respondent appeared in person and was not represented.

REASONS

Issues

1. The tribunal must consider complaints in respect of the following matters:-

(a) Unfair dismissal, including failure to follow statutory dismissal procedures.

(b) Right to written reasons for dismissal.

(c) Breach of contract in respect of notice pay.

(d) Right to receive particulars of contract.

(e) Right to receive an itemised pay statement.

2. The parties are in disagreement as to whether or not the claimant was in fact dismissed from his employment with the respondent. Therefore the first issue for the tribunal to determine is whether there was a dismissal. If there was no dismissal, the claims set out at paragraphs 1(a), (b) and (c) must fail.
3. The respondent failed to detail in his response form the grounds, if any, upon which he intended to resist the complaint in respect of the alleged breach of the claimant's right to receive an itemised pay statement. Consequently the Office of the Tribunals notified the respondent by letter dated 10 December 2007 that his response was not accepted insofar as it related to that issue. The letter also informed the respondent that he could apply to the tribunal for a review of this decision. The procedure for applying for a review was set out in the letter. The respondent did not make an application for a review. Accordingly, he is not entitled to take any part in the proceedings insofar as the proceedings relate to the claimant's right to receive an itemised pay statement. The tribunal must nonetheless consider whether or not the claimant has proven that his right to receive an itemised pay statement has been breached.

Facts

4. The findings of fact set out in this decision have been reached on the basis of all the information, including documentary evidence, available to the tribunal. At the hearing of this matter, both the claimant and the respondent gave oral evidence and made brief additional submissions.

The claim

5. A claim form was received by the Office of the Tribunals on 22 October 2007. The tribunal accepted the complaints which related to: unfair dismissal; the right to written reasons for dismissal; the right to receive particulars of contract; and the right to receive an itemised pay statement. These complaints were allocated the Case Reference No: 1840/07.
6. The complaint relating to breach of contract in respect of notice pay was not accepted by the tribunal on the grounds that the claim form disclosed that the claimant had not raised the subject-matter of that complaint in writing to the respondent and waited 28 days prior to presenting his claim to the Office of the Tribunals.
7. The claimant submitted a further claim form including a complaint relating to breach of contract in respect of notice pay. This claim was received by the Office of the Tribunals on 21 November 2007. The claim form stated that the complaint had been put in writing and sent to the respondent on 5 October 2007. On this occasion the complaint in respect of breach of contract was accepted by the tribunal. It was allocated the Case Reference No: 2015/07.
8. On 12 March 2008, a Tribunal Chairman directed that the Case Reference Nos: 1840/07 and 2015/07, be considered and heard together.

Background

9. The claimant was continuously employed by the respondent from August 1999 until the events of September/October 2007 which form the subject-matter of the claim in this case.
10. The respondent runs a small courier and removals company. He employs around six people. The respondent's letterhead discloses that the business operates out of premises at Springtown, Derry.
11. The claimant's role in the company changed and developed over the years in line with the underlying fortunes of the business. He was originally employed as a warehouse operative, but by 2000/2001 the claimant had moved on to office based duties. As the courier side of the business grew, the claimant not only performed his office duties but occasionally he would drive a delivery vehicle when there was a shortage of drivers.
12. By the Summer of 2007 the respondent had provided the claimant with business cards which described the claimant as "Sales Manager". At that time the claimant continued with his office duties which included dealing with enquiries, directing drivers, pricing jobs and organising the maintenance and repair of the respondent's fleet of vehicles. In addition to the office work, the claimant continued with occasional delivery driving and he also assumed responsibility for training new drivers in the day-to-day working procedures of the company. This often necessitated accompanying new drivers on their rounds when they first commenced working for the respondent. Sometimes this required travelling as far as Belfast.
13. In recognition of the claimant's efforts at work, in or around June 2007 the respondent gave the claimant a pay rise. The claimant told the respondent that he was well pleased with the increase in his wages. A short time later, however, the claimant was to seek to undermine the respondent in the hope of starting up in the courier business on his own account.
14. One of the most important clients of the respondent's courier business [hereinafter referred to as "the Customer"] was based just outside Belfast. In the course of his employment with the respondent, the claimant had travelled to the Customer's premises and met him on several occasions. The claimant told the tribunal of his sense that the Customer was unhappy with the service offered by the respondent, and in July or August 2007 the claimant approached the Customer to offer him an alternative. He told the Customer of comments he alleged had been made by the respondent, comments which would have suggested to the Customer that the respondent did not fully value or appreciate the Customer's business.
15. The claimant told the Customer that he, the claimant, could put three vans on the road to service the deliveries which the respondent was then making for the Customer. The claimant told the tribunal that, by arrangement with his father, he had put the finance in place to start up his own courier business. The claimant would have done so immediately if the Customer had been willing to transfer the delivery contract from the respondent to him.
16. The Customer declined the claimant's offer, and so the claimant continued in the respondent's employment. At that time the respondent was unaware of the claimant's manoeuvrings to win over his delivery contract with the Customer. The claimant told the tribunal that, "obviously I did not tell Damian [Irvine] I had spoken to [the Customer]. I spoke to [the Customer] confidentially about what Damian had said to me." When the claimant spoke of confidentiality, he was referring only to his own perceived entitlement to confidentiality.
17. The tribunal is satisfied that the reason that the claimant did not speak to the respondent about his approach to the Customer was because the claimant knew that his conduct could properly be regarded by the respondent as disloyal and underhand.

The alleged dismissal

18. On Tuesday 18 September 2007, the respondent was working on a removal job in England when he received news that the claimant had obtained a sick note from his doctor that day. The doctor's certificate certified that the claimant should refrain from working for a period of four weeks. The respondent was alarmed at this news and he immediately sought to make contact with the claimant by telephone.
19. When they spoke, the claimant explained that the doctor's diagnosis was of a stress-related disorder. The respondent was concerned about losing the services of the claimant while the respondent was away from the office. In desperation, the respondent tried to persuade the claimant to stay at work until Friday of that week, so that the respondent could make satisfactory arrangements to cover the claimant's absence. Understandably, and quite properly, the claimant declined to do so. The claimant explained to the respondent that he was taking the doctor's advice. He told the respondent that, due to stress, he was not sleeping properly and that consequently it would not be safe for him to drive.
20. At that point the respondent told the claimant to leave his keys and his phone in the office. The respondent needed the keys and the phone to give to the person who would cover for the claimant while he was on sick leave. The respondent told the claimant that he wanted to see him when the respondent returned from England.
21. The claimant alleges that the respondent told him that he was fired. The tribunal is not satisfied that the respondent told the claimant that he was fired. Such a comment would have been wholly inconsistent with the subsequent actions of the respondent.
22. Following the telephone conversation on 18 September 2007, the next communication between the parties was a letter dated 28 September 2007 sent by the respondent to the claimant. The letter enclosed two cheques made payable to the claimant. The first represented the balance of the claimant's monthly pay earned prior to the commencement of his sick leave. The second cheque was in respect of the first instalment of the claimant's statutory sick pay.
23. The letter included the following comments:

"Statutory Sick Pay will be paid weekly by cheque … Please inform us on a weekly basis of your progress, and also when you will feel fit enough to return to work. Please do not hesitate to contact me if you require further information."

24. The claimant cashed the statutory sick pay cheque. He says that it was cashed accidentally. Under cover of a letter dated 4 October 2007, the claimant returned to the respondent a sum equivalent to the cheque which had been cashed, and the claimant made it clear that he regarded himself as having been dismissed. He requested that the respondent provide him with written reasons for his dismissal. The claimant stated, "I have taken legal advice and shall be taken [sic] this matter further."
25. The respondent replied to the claimant in writing. He stated, "with regard to your letter sent to our office on Friday 5 October alleging you were dismissed from your job after submitting a four week sick line, this is totally untrue and not the case."
26. During the period covered by the doctor's certificate, each week the respondent sent the claimant a cheque which was described in the covering letters as statutory sick pay. The claimant refused to cash the cheques. He maintained that he had been dismissed by the respondent on 18 September 2007.
27. The last statutory sick pay cheque was sent to the claimant on 19 October 2007. It was said by the respondent to be payment in respect of, "fourth and final week as per sick note".
28. The claimant did not contact the respondent, instead he issued his claim in the Industrial Tribunal. On 26 October 2007 the claimant made a claim for jobseekers allowance.
29. In October 2007, the claimant bought a van with a view to starting up a courier business on his own account. The claimant had business cards printed which described the business as "D.H. Couriers – Courier Services & Small Removals – Declan Harley, Proprietor". The claimant told the tribunal that he contacted companies countrywide, including the Customer, to see if he could generate some business. Despite his best efforts, the claimant says that his marketing campaign failed to win him a single job.
30. The claimant has applied for a number of jobs, but thus far his applications have been unsuccessful and he remains unemployed.

Right to receive particulars of contract

31. The claimant asserts that he did not receive particulars of his contract of employment when he commenced work with the respondent.
32. The respondent produced a document headed 'Contact of Employment' which contained particulars of contract and bore the date October 2003. The claimant disputed that the document had been produced in 2003 and the respondent admitted in giving evidence that he had added the date to the document after the tribunal proceedings had commenced.
33. The claimant acknowledged that during his employment he had been shown the document produced by the respondent, but he stated that it had been produced later than October 2003.
34. The claimant's immediate objection to the document was that the job description stated that he was a "Van driver" in addition to an office sales administrator.

Right to itemised pay statement

35. No information was made available to the tribunal to contradict the claimant's assertion that during his employment he had not received itemised pay statements.

Law

Unfair Dismissal

36. Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 ['the ERO'], an employee has the right not to be unfairly dismissed by his employer.
37. Prior to any consideration of whether or not a dismissal is fair, it is for the employee to satisfy the tribunal on the balance of probabilities that there has in fact been a dismissal.

Written statement of particulars of employment

38. Under Article 33 of the ERO an employer is under a duty to give the employee a written statement of particulars of employment. The statement shall be given not later than two months after the beginning of the employment.
39. Under Article 27 of The Employment (Northern Ireland) Order 2003 ["the EO"] a tribunal must make an award of a minimum of two weeks' pay if:-

(a) the employer has failed to comply with Article 33 ERO, and

(b) the tribunal finds in favour of the claimant in respect of a claim under any of the jurisdictions listed in Schedule 4 of the ERO.

40. A claim in respect of Article 40 of the ERO, right to an itemised pay statement, is not one of the jurisdictions listed in Schedule 4.

Right to itemised pay statement

41. Under Article 40 of the ERO an employee has a right to be given by his employer a written itemised pay statement. When an employer is in breach of this requirement a tribunal may require an employer to pay to the employee a sum not exceeding the aggregate of any notified deductions made in the 13 weeks preceding the claim to the tribunal [Article 44(4) ERO].

Determination

Unfair dismissal; Right to written reasons for dismissal; Breach of contract in respect of notice pay

42. On the basis of the findings of fact recorded above, the claimant has failed to satisfy the tribunal to the requisite standard of proof that he was dismissed by the respondent. In the circumstances his claims for unfair dismissal, right to written reasons for dismissal, and breach of contract in respect of notice pay must fail.
43. The claimant sought to attribute to the respondent an entirely cynical motivation for the respondent's initial payment of statutory sick pay under cover of a letter dated 28 September 2007. The claimant suggested that the sick pay was offered simply to prevent the claimant making a claim against the respondent. The tribunal rejects this suggestion. At the date the sick pay was offered to the claimant there had been no communication between the parties since the telephone conversation on 18 September 2007, and there had been no intimation from the claimant that he was about to make a claim against the respondent. The respondent acknowledged that he would not have wanted the claimant back at work after he learned of the full nature and extent of the claimant's contacts with the Customer, but the tribunal is satisfied that the initial offer of statutory sick pay was honestly made because the respondent had not dismissed the claimant.

Written Statement of Particulars of Employment

44. The respondent did not comply with his obligations under Article 33 of the ERO. No award is made in respect of this because the claimant has not succeeded in respect of a claim under any of the jurisdictions set out in Schedule 4 of the EO.

Right to itemised pay statement

45. The tribunal declares that the respondent failed to give the claimant any pay statement in accordance with Article 40 of the ERO. This is a serious breach of his obligations as an employer and should not be treated lightly by the respondent. The claimant does not, however, complain of any uncertainty on his part as to the nature or legitimacy of the deductions which the respondent had in fact made from his pay.
46. During the 13 week period immediately preceding his claim to the tribunal, the claimant in his dealings with the Customer conducted himself in a way which was at best disloyal to the respondent, and at worst arguably a fundamental breach of his contract of employment. In all the circumstances no award is made in favour of the claimant in respect of this claim.

Chairman:

Date and place of hearing: 3 June 2008, Strabane

Date decision recorded in register and issued to parties: