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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Jordan v Millers Traditional Bakery Ltd [2009] NIIT 1165_08IT (04 September 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/1165_08IT.html
Cite as: [2009] NIIT 1165_08IT, [2009] NIIT 1165_8IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 1165/08
1405/08
CLAIMANT: Percy Jordan
RESPONDENT: Millers Traditional Bakery Ltd
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed. The respondent shall pay the claimant compensation of £13,381.65. The claimant’s claim for holiday pay is dismissed following its withdrawal.
Constitution of Tribunal:
Chairman: Ms Bell
Members: Mr P Kearns
Mr B Irwin
Appearances:
The claimant appeared in person.
The respondent was represented by Mr Malcolm Glazier, Consultant, of Employment Law Advisory Services.
1. The claimant complained in his claims that he was unfairly dismissed by reason of gross misconduct in circumstances in which he believed that his actions had been provoked, that he had behaved in the best possible way in the circumstances, and that his actions did not amount to gross misconduct. The claimant did not consider that he had received a fair hearing and believed the decision to dismiss him had been unfairly influenced by the respondent’s managing director. The claimant also claimed unpaid holiday pay but withdrew his holiday pay claim at hearing.
2. The respondent resisted the claimant’s claims asserting that it had behaved in a proper and fair manner and that the dismissal had been fair.
3. Mr Cormac Green, shareholder in the respondent company confirmed at hearing the correct title for the respondent is Millers Traditional Bakery Ltd, the respondent’s title in the proceedings is amended accordingly.
Issue
4. The issue for the tribunal is whether the claimant was unfairly dismissed?
Evidence
5. The tribunal considered the two claims, response, agreed bundles of documentation from the claimant and respondent, heard oral evidence from Mr Cormac Green and from the claimant.
Findings of Fact
6. The respondent company was set up by Mr Raymond Jordan, the claimant’s father, and Mr Martin Miller, the current managing director. The claimant was employed by the respondent in November 1996; he initially worked as a baker, but later became general manager. Relations were good between the claimant, his father and Mr Miller, so much so that the claimant invested £25,000 in the respondent in 2005. Following Mr R Jordan’s subsequent retirement relations became strained between Mr R Jordan and Mr Miller, factors included the Ulster Bank holding back monies owned by Mr R Jordan pending receipt of monies from the respondent, monies being outstanding to Mr R Jordan for work carried out by him for the respondent at Christmas 2007, an argument on a business trip to Italy between Mr Miller and Mr Derek Revel in respect of which Mr Miller felt that Mr R Jordan had not sufficiently supported him, and Mr R Jordan’s numerous unsuccessful attempts to contact Mr Miller by telephone and by text prior to 21 May 2008. On Mr R Jordan’s retirement the claimant believed that he had been made a company director of the respondent company.
7. On 21 May 2008 the claimant received a telephone call from his father, who asked him if there was a problem with the respondent’s Maxol Fuel account as his fuel card had been declined, the claimant replied that he was not aware of any problems but that he would check and call him back.
8. The claimant went to the respondent’s book-keeper, Ms Roberta Beattie, and enquired whether there was a problem with his father’s fuel card she replied that she had been told to write to Maxol to terminate his father’s fuel card at the start of May 2008 when his car contract had finished with the respondent, and acknowledged that she perhaps should have written to Mr R Jordan to let him know. The claimant, in frustration, raised his voice slightly and asked whether the situation with the Ulster Bank had been resolved as the bank was holding money under his father’s personal guarantees pending receipt of monies due to it from the respondent. Ms Beattie replied that she was not sure about the situation with the Ulster Bank and that he would need to speak to Mrs Ann Miller, wife of Mr Martin Miller, who also worked for the respondent.
9. The claimant left the main office, went to his own office and telephoned Mr Miller’s mobile phone, Mrs Miller answered and the claimant asked her why his father’s fuel card had been stopped, she told him his father was aware that he was to be responsible for any expenses in respect of his car when the lease contract was up. The claimant asked Mrs Miller whether the issue with the Ulster Bank had been resolved as both she and Mr Miller knew his father was relying on money held by the bank to sort out finances for his car, Mrs Miller told the claimant that she would speak to him when she got back to the bakery.
10. A short time later Mr Miller returned to the bakery, he came to the claimant’s office and asked if he could have a word with him. The claimant followed Mr Miller to his office. As the claimant entered Mr Miller’s office, Mr Miller began to shout and use swear language toward him, saying to the claimant that if he had been aware that Miller had lost £252,000 last year, that he would not be asking about a £42 a month fuel card, he continued, stating that the claimant’s father had received £71,000 from the respondent when he left which was more than he, Mr Miller, or the claimant had got, and that every penny Mr R Jordan was owed for work done at Christmas would be paid in full that weekend, someone else just would not be paid. The claimant tried to talk to Mr Miller but felt that he was being “shouted down”. Mr Miller continued shouting at the claimant, saying that he could have done with some support in Italy, that Mr R Jordan had not backed him up and that it was time the claimant began to back him up and “grow a set of balls”.
11. The claimant decided there was no point in trying to talk to Mr Miller but that the only way to get Mr Miller to listen to him was to start shouting himself, which he did, replying that he was not in Italy to know what had happened and that he thought it was childish to stop a fuel card for a few pounds when the Ulster Bank was still holding substantial monies belonging to his father because the respondent was unable to do whatever was necessary for the bank to release the funds back to his father. Mr Miller continued shouting and swearing toward the claimant replying that it was not his fault that his father had moved house, that he was buying a car, and then said “I don’t give a f**k about Raymond Jordan”. Mr Miller turned and started toward the door of his office, the claimant put his hand in his pocket, took out his mobile and said to Mr Miller, “is that right, so I can phone my father and tell him you don’t give a f**k about him any more after all he has done for Millers”? Mr Miller turned in the doorway and asked the claimant was he sniggering? The claimant replied, “no”. At that the claimant felt Mr Miller was inviting him to start a physical fight with him, so he stopped and took a step back and repeated his question to Mr Miller, but Mr Miller walked further out the door into the store area without replying. As the claimant walked out past Mr Miller he repeated to the claimant that it was time the claimant “grew a set of balls” and started to support him, at this the claimant stopped, turned to Mr Miller and replied that he works “every hour God sends in the bakery”, as a result of which his marriage was on the line, his children had stopped talking to him and that he was sleeping on the settee most nights. The claimant asked Mr Miller if he was implying that he did not care, Mr Miller replied, “you don’t give a f**k”. At this stage the claimant also began to use swear words toward Mr Miller, and said, “well if I don’t care, I’ve done my eight hours, you sort it out” and he threw his mobile phone about four feet into a basket beside Mr Miller, turned and walked away toward his own office.
12. Mr Miller followed the claimant into his office and nodded for the claimant to follow him outside, away from staff present in the office. The claimant followed Mr Miller out and their verbal altercation continued, the claimant again felt Mr Miller was inviting physical confrontation, however Mrs Miller then appeared from the main office and told Mr Miller and the claimant to “break it up”, as it was neither the time nor place. The claimant was extremely angry about what had happened and felt that the best thing to do was to leave the premises because he did not want to end up in a physical confrontation with Mr Miller, so he went back to his own office, quickly changed his clothing and left his key for the new premises with Ms Beattie.
13. The claimant went home and after calming down began to wonder how he could sort out the night shift production without his mobile phone, which had night shift contact numbers on it, but succeeded in obtaining a number for night shift dispatch and telephoned Mr William Rooney and asked him to do a few things for him for the night shift production and told him that he would be in early the next morning to tidy up any loose ends to ensure that production would run smoothly. The next morning the claimant went into work at 4.00 am, rather than 9.00 am, to deliver production numbers and ingredients to the bakers. The respondent’s production run did not suffer as a result of the claimant’s actions.
14. On Thursday 22 May 2008, Mr Miller hand delivered a letter to the claimant suspending him from work and inviting him to attend an investigatory meeting on 2 June 2008 for alleged gross misconduct, on the basis that he had breached the trust and confidence of the company, in that he had left the premises without permission, did not arrange cover for his role or leave instructions for the night shift, that he threw a mobile phone, therefore breaching health & safety rules and that he was insubordinate to the managing director. Mrs Miller was proposed as Chairperson of the investigatory meeting and Ms Shauna Mason, the respondent’s HR Consultant, to take notes.
The claimant sent a grievance letter by Recorded Delivery to the respondent on 22 May 2008 in respect of Mr Miller’s behaviour toward him.
On 30 May 2008 the claimant hand-delivered a reply to Mrs Miller’s letter of 22 May 2008 refuting the allegations in her letter and requesting that the investigatory meeting be chaired by someone not involved with either party. The claimant suggested Mr Cormac Green chair the investigation. Mrs Miller replied on 30 May 2008 proposing that Ms Beattie chair the investigation and any disciplinary hearing which would leave Mr Green to chair an appeal hearing if it became necessary.
15. On 16 June 2008, a few days before the proposed investigatory meeting the claimant received a telephone call from the respondent confirming that Ms Beattie would not be available and it was agreed that Mr Green would instead conduct the investigation. The claimant received a letter from the respondent on 16 June 2008 confirming the conversation and thanking him for agreeing to allow Mr Green to chair both the investigatory and grievance meetings, both to take place on 18 June 2008.
16. Ms Mason briefed Mr Green about the incident and how he should carry out the investigation, hearings and decision making.
17. On 18 June 2008 an investigatory meeting took place chaired by Mr Green, with Ms Mason present to take notes. The claimant had no representative and when he requested Mr Geoff Ferris as a representative he was told that it was too late to arrange to take someone off the floor without organising cover. The claimant confirmed that he was happy to proceed without a representative.
18. A grievance meeting was also held on 18 June 2008 chaired by Mr Green, after which Mr Green told the claimant “I’m caught between the devil and a hard place, Marty told me yesterday after your meeting if you are allowed back into the building when this is all over I’ll hand the keys to the bank and walk away.” Mr Green acknowledged in his evidence having made this remark to the claimant about Mr Miller.
19. On 18 June 2008, Ms Mason wrote to the claimant, on behalf of the respondent, confirming that a disciplinary hearing had been arranged for 20 June 2008 in relation to the same allegations as had been first set out in the letter of 22 May 2008. He was warned that if the allegations against him were found to be true then a possible outcome could be dismissal on the ground of gross misconduct.
20. On 20 June 2008 a disciplinary hearing took place, chaired by Mr Green, Ms Mason was present to take notes, and the claimant was accompanied by Mr Ferris. Mr Green went through the allegations with the claimant set out in the letter of 18 June 2008, in particular, concentrating on the claimant’s initial approach to Ms Beattie. Mr Green suggested to the claimant that he had come in and verbally intimidated Ms Beattie, his questions included “do you not think it is provocative to go to Roberta Beattie, the weakest, best natured, gentle person, how would she know about the personal security?” No issue had previously been put to the claimant about his behaviour towards Ms Beattie. During the hearing the claimant felt he was not being allowed to fully explain his behaviour.
21. Following the disciplinary meeting, the claimant was presented a letter dated 23 June 2008 confirming the respondent’s decision to dismiss him summarily for gross misconduct.
22. By letter dated 23 June 2008, Mr Green confirmed, following the grievance hearing on 18 June 2008, it was his finding that the claimant had provoked and created the situation and as such did not have a valid grievance.
23. The claimant appealed the dismissal decision by letter dated 30 June 2008, pointing out that he did not believe that all questions he had asked had been recorded in the minutes of the meeting on 20 June 2008 and although it was put in the minutes that he had raised his voice, the raising by Mr Green of his voice had not been included, which the tribunal accepts.
24. An appeal hearing took place on 17 July 2008 chaired by Mr Bill Beers, notes were taken by Ms Mason, and Mr Ferris accompanied the claimant. By letter dated 23 July 2008 Mr Beers confirmed to the claimant that the disciplinary sanction of dismissal was to be upheld.
25. Following his dismissal the claimant claimed Jobseekers Allowance but later began work as a taxi driver on 20 October 2008 earning £250 net per week.
The law
26. Under Article 126 of The Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer. In determining whether a dismissal is fair or unfair it is for the employer to show the reason for the dismissal and that it is a potentially fair reason as provided in Article 130 of the 1996 Order. Where the employer satisfies both these requirements the determination of the question whether the dismissal is fair or unfair having regard to the reason shown by the employer depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.
Application of law to the facts found
27. The tribunal finds that although the respondent has put forward misconduct as the reason for the claimant’s dismissal, which is a potentially fair reason, it is not satisfied, having regard to the reason shown, with reference to the standards of the hypothetical reasonable employer, in the circumstances that the employer acted reasonably in treating it as a sufficient reason for dismissing the claimant.
28. The tribunal is not entirely satisfied that the dismissal was procedurally fair, or had it been procedurally fair that a dismissal decision would have been taken, nor that the dismissal decision was within a band of reasonable responses that a reasonable employer might have adopted. The tribunal was influenced particularly by the following in reaching its decision:-
(i) Whilst Mr Green, a shareholder in the respondent company and the only witness from whom the tribunal heard oral evidence on behalf of the respondent, was brought in, on the face of it, as an independent person to investigate allegations against the claimant, to carry out a disciplinary hearing, and to make a disciplinary decision, his independence and objectivity were compromised by both the pressure exerted by Mr Miller in his threat to give the keys to the bank and walk away from the company if the claimant was allowed back, and in the terms in which Mr Green seems to have been briefed about the incident and how to carry out of the investigation, disciplinary hearing and decision-making, such that Mr Green in particular placed great emphasis on the alleged unprovoked upset caused to Ms Beattie and to have accepted this as provocation for Mr Miller’s anger towards the claimant, which sits at odds with the allegations actually put to the claimant in correspondence by the respondent, there being no mention of upset to Ms Beattie, and even more so at odds with the respondent’s suggestion at an earlier stage that Ms Beattie actually investigate and carry out any disciplinary hearing and decision-making.
(ii) Mr Green, on his evidence, made his decision without regard to all the circumstances, considering only the five allegations put. No consideration was given to the outside family tensions between Mr Miller and Mr R Jordan, which the claimant was clearly caught in the middle of and which had lead to the situation, the provocation of the claimant by Mr Miller, belief by the claimant that he was speaking to Mr Miller as a fellow director, the steps taken by the claimant to mitigate any disruption to production, the claimant’s clear disciplinary record and great personal commitment and financial involvement in the company.
29. The tribunal are not satisfied from the limited evidence before it that the appeal hearing chaired by Mr Bill Beers remedied any shortcomings in the initial disciplinary procedure. Applying Article 130 of the 1996 Order, the tribunal finds in the circumstances, the respondent acted unreasonably in treating misconduct as sufficient reason for dismissing the claimant. Accordingly the tribunal awards compensation as follows:-
30. Compensation
The compensatory award is to compensate the victim of an unfair dismissal for his loss, there is a duty to mitigate that loss, the tribunal is satisfied the claimant has done so, however it considers it just and equitable to reduce the claimant’s basic award by 10% on the basis of the claimant’s unreasonable behaviour of throwing his mobile phone, and to reduce his compensatory award by 10% on account of the contribution made by this to the respondent’s decision to dismiss.
Basic award
11/2 x £330 x 11 years continuous employment = £5,445.00
Less 10% - £ 544.50
Basic Award £4,900.50
Compensatory award
Loss of earnings - 24 June 2008 – 20 October 2008
17 weeks x £353.47 £6,008.99
Loss of earning – 20 October 2008 – 15 June 2009
(£353.47 - £250.00) x 33 weeks = £3,414.51
Total loss of earning £9,423.50
Less 10% - £ 942.35
Compensatory Award £8,481.15
31. Conclusion
The respondent shall pay the claimant compensation of £13,381.65.
32. This award is subject to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996. The attention of the parties is drawn to the notice below which forms part of this decision.
33. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 26 May 2009 and 15 June 2009, Belfast
Date decision recorded in register and issued to parties:
Case Ref Nos: 1165/08
1405/08
CLAIMANT: Percy Jordan
RESPONDENT: Millers Traditional Bakery Ltd
ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT
1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.
|
|
£ |
|
(a) Monetary award |
13,381.65 |
|
(b) Prescribed element |
8481.15 |
|
(c) Period to which (b) relates: |
24/06/08 – 15/06/09 |
|
(d) Excess of (a) over (b) |
4900.50 |
The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.
2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
3. The claimant will receive a copy of the recoupment notice and should inform the Department of Social Development in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.