Industrial Tribunals Northern Ireland Decisions

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Johnston v Foyle Meats [2009] NIIT 1257_08IT (12 June 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/1257_08.html
Cite as: [2009] NIIT 1257_08IT, [2009] NIIT 1257_8IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 01257/08

CLAIMANT: Andrew Johnston

RESPONDENT: Foyle Meats

DECISION

The unanimous decision of the Tribunal is that the respondents unfairly dismissed the claimant by reason of their failure to comply with the statutory dismissal procedure and that the respondents pay the claimant the sum of £1,092.

Constitution of Tribunal:

Chairman: Ms P Sheils

Members: Ms T Madden

Mr P Sidebottom

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by O’Hare, Solicitors.

The claim and the response

1. The claimant lodged a claim to the Industrial Tribunals on 12 September 2008 claiming only that the respondent did not follow the statutory disciplinary and dismissal procedure in dismissing him.

2. The respondent replied by response lodged on 28 October 2008 that they accepted that the claimant had been dismissed by them.

Case Management Discussion

3. A Case Management Discussion was conducted on 11 February 2009 on foot of the respondent’s request for an adjournment in the case. The adjournment application was withdrawn on the basis that the Case Management Discussion elucidated two issues to be heard by the tribunal and directions were given in respect of the respondent’s request for additional information and discovery. The two issues in question were:-

(1) the respondent’s alleged failure to comply with Step 1 of the dismissal and disciplinary procedure; and

2. the fact that he had been genuinely ill and had provided a doctor’s letter in relation to that effect.

Sources of evidence

4. Witnesses

The Tribunal heard from the claimant and from Mr Paul Doherty and Ms Jackie McGeough for the respondent.

Documents

The Tribunal had sight of a bundle prepared by the respondents and in addition the Tribunal had sight of documentation that had been directed by the Case Management Discussion, namely the claimant’s Jobseeker’s Allowance documentation including the booklet completed by him and signed by the Benefits Office in relation to the claimant’s application for employment. The Tribunal was also given a copy of the claimant’s clock card in respect of week commencing Monday 25 August 2008.

Submissions

5. The Tribunal heard submissions from the respondent’s representative, Mr Mulqueen.

Findings of relevant facts

6. Having considered the oral and documentary evidence before it the tribunal found the following facts either admitted or proved on a balance of probabilities:-

(1) The claimant commenced working with the respondent in August 1999. His job was a Slaughterhouse Operative. It was accepted by the respondent that the claimant was a good worker; but that his absence record was unacceptable.

2. The respondent operates a comprehensive attendance policy, the details of which are contained in employees’ contracts of employment. The claimant agreed that he was fully aware of the details of the absentee policy.

(3) This policy was thus; for a first period of absence the employee received a ‘spoken to’. A note that the employee has been given this verbal ‘spoken to’ was put on the employee’s file where it stayed for 12 months. The policy goes on to say that for two periods of absence in any 12 month period the penalty was a ‘recorded verbal advice’; three periods of absence in any 12 month period has a penalty of ‘written advice’; four periods of absence in any 12 month period incurs a ‘final written advice’ and five periods of absence in any 12 month period leads to dismissal. The 12 month period is a rolling period and is triggered by the employee’s first period of absence.

(4) In the claimant’s case a period of absence in July 2007 triggered the 12 month rolling period. The claimant had periods of absence thereafter in October 2007, November 2007, January 2008, March 2008, June 2008 and August 2008. This amounted to a total of seven periods of absence and in March 2008 the claimant reached the critical stage of facing dismissal in line with the policy. However, the claimant’s line manager, Mr Doherty, intervened on behalf of the claimant. He urged the respondent not to dismiss the claimant at this stage. This was on the basis that Mr Doherty valued the claimant as a good worker, when present.

(5) It was accepted by the claimant that his work on the production line was critical to the effective running of the production line and ultimately the respondent’s business. The claimant also accepted that his absence from work would have been disruptive to that production line.

(6) The claimant was absent again in June 2008. Again the claimant faced a critical stage in terms of the absentee policy and again Mr Doherty intervened on the claimant’s behalf and urged the respondent not to dismiss him. On this occasion, Mr Doherty was prepared to do this for the claimant on the basis that the claimant had told him the reason for his absence was family difficulties.

7. On both occasions when the claimant reached the critical stage under the absentee policy and his line manager intervened on his behalf, the claimant accepted that Mr Doherty had spoken to him in the strongest terms and warned him that a further period of absence would inevitably lead to dismissal.

7. The claimant had a further period of absence in August 2008. This period of absence followed a pattern that had been followed by the claimant during the years of his employment, which was to take a period of unauthorised absence immediately after a period of holiday leave. In this instance the claimant returned to work on 26 August 2008.

(9) It was accepted that the claimant had returned to work on 26 August 2008. However, there was considerable dispute between the claimant and the respondent about the events that occurred on that date and the following date.

10. The claimant stated that he had gone into work early in the morning and had gone directly to the Human Resources Office and handed his sick line from his doctor to Ms McGeough. He went on to state that he had then returned to his place in the line and commenced working until, approximately mid-morning, a co-worker told him that he was required to attend at the Human Resources Office.

10. The claimant stated that he had met Ms McGeough in her office, that she had told him he was being suspended and that he was to attend a disciplinary meeting at the respondents’ offices the following day. The claimant stated that he had left this meeting in an upset state, had gone to his work station to put his tools away safely and had then left the respondents’ premises thereafter.

10. During the hearing the respondents produced a document stating “Clock card for 868: Andrew Johnston”. This document indicated that the claimant had clocked in at 08.15am on the 26 August 2008 and had clocked out at 16.30pm that same day. The document also indicated that the claimant had clocked in at 09.00am on 27 August 2008, the morning of the disciplinary hearing, and had clocked out at 1.00pm that same day.

10. The respondents’ version of events was less than clear. Ms McGeough stated that she only discovered the claimant had returned to work on 26 August 2008 late in the day, justly shortly before she would ordinarily leave work, that is before 3.30 pm. Ms McGeough stated that she sent for the claimant and spoke to him in her office. Ms McGeough stated that advised the claimant that his attendance was unacceptable and that he was being suspended. Ms McGeough invited the claimant to attend a meeting the next morning to discuss the matter further and in particular his possible dismissal. Ms McGeough also stated that she had advised the claimant that she had to give him a letter to this effect.

10. Ms McGeough also stated that the claimant had become angry during this meeting, stating that as his absence had been for vomiting and diarrhoea that he would not have been able to work in any event. Ms McGeough then stated that she had asked the claimant to wait while she collected from the printer a letter she had prepared for the claimant.

10. The claimant accepted that he had become agitated and that he stated something to the effect that “this fucking place is a joke” and “this fucking place doesn’t care about nobody”. The claimant accepted that he had walked out of the meeting in a state of agitation. The claimant was adamant that there had been no mention of any letter of his having been asked to wait until any letter had been given to him.

10. For her part although Ms McGeough stated that she thought the claimant had stated something like “fuck the letter” she then accepted that it was possible that the claimant had not heard her make any reference to this letter at all.

10. Ms McGeough further accepted that she had not sent, given or had delivered this letter to the claimant before the disciplinary hearing held the following morning.

10. Ms McGeough stated that she had worked late that day, 26.8.08, until well after 3.30pm, to prepare for the meeting to be held the following day. However a letter written to the claimant and signed by Ms McGeough was handed into the Tribunal. This letter was dated 27.08.08. The letter stated that a disciplinary hearing was being arranged for the 28.08.08 to discuss the claimant’s absenteeism, that disciplinary action might be taken against him and that his dismissal was “one of the options open to the company…”.

10. Ms McGeough stated that she was very confused about the dates on which these events occurred and could offer no further explanation as to why this letter was dated a day after the events in question.

10. Mr Doherty version of events was that he had spoken to the claimant at approximately 10.00am on the morning of his return to work, the 26 August 2008 and had advised him that he had to attend a meeting at the Human Resources Office in relation to his absenteeism.

10. The Tribunal accepted that the events occurred as described by the claimant, that he had spoken to Ms McGeough mid morning on the 26 August 2008 and had left work thereafter. His account was consistent with most of the detail in the accounts of events given by Ms McGeough and Mr Doherty insofar as they related to the substance of what happened. In reaching this conclusion the Tribunal took into account Ms McGeough’s own admission that she was confused about the dates on which the events occurred, the fact that the letter was dated a day subsequent to events and the fact that Mr Doherty’s version supported the claimant’s account.

10. However the Tribunal noted Ms McGeough’s honest confirmation that she had not sent, given or have otherwise delivered to the claimant a copy of any letter inviting him to attend a disciplinary meeting at which his possible dismissal would be discussed.

10. The claimant attended the respondents’ premises the following day, 27 August 28 2008, for the disciplinary hearing. A union representative, Mr Norman Kincaid, attended the meeting with the claimant. There was some agreement amongst the parties as to what had occurred at this meeting. It was explained to the claimant that his most recent period of absence had brought him again to the position where the respondents’ were considering dismissing him.

10. It was accepted that Ms McGeough and Mr Doherty went through the respondents’s absentee policy and the claimant’s absentee record. It was agreed that the claimant had handed in a sick line, saying words to the effect, “you can’t touch me, it was genuine”. Ms McGeough stated that she was not disputing the reason for his absence, that she could accept that it was genuine; but that that fact did not alter anything.

10. The claimant and his representative were invited to make representations on the claimant’s behalf and both declined to do so.

10. The final decision to dismiss the claimant was taken by Mr Doherty on the basis that the claimant was on his second so-called ‘final warning’ and that although the claimant had been given some leeway on previous occasions this further absence required dismissal.

10. Ms McGeough and Mr Doherty stated that the decision to dismiss the claimant had been taken within the ambit of the absenteeism policy and of the importance of having to apply this consistently to deter other employees from abusing it. However the Tribunal noted that this did not sit easily with the fact that on two previous occasions, Mr Doherty had successfully intervened to pull the claimant back from the brink of dismissal.

10. The claimant was advised of his right to appeal this decision. However although the claimant lodged an appeal he did not pursue it. The claimant stated that he had been advised by a person in the local CAB that if he had no intention of returning to work that he did not need to continue with the appeal.

10. Ms McGeough then stated that if the claimant had not been dismissed on the 27 August 2008 he would have been made redundant some few weeks later in September 2008. She stated that her capacity as Human Resource Manager she had been asked by the Board of Directors in June 2008 to prepare a series of redundancy matrices. She was asked to produce a redundancy matrix that would be to the most benefit to the company’s viability and least impact on employee loss.

10. The Tribunal has sight of this redundancy matrix and noted that the claimant’s name had been added on to the sheet of other workers. However the Tribunal accepted that this had been done to indicate that if the claimant had continued in work after 27 August 2008 the matrix would have been applied to him, as to all other staff, and that he would undoubtedly have met the criteria in the matrix and have been selected for redundancy. Neither this fact nor the matrix was challenged by the claimant. The redundancies took place on 12 September 2008.

10. The Tribunal noted that the claimant had sought and obtained Jobseekers’ Allowance. In particular the Tribunal noted the attended documentation and noted that the claimant’s statements that he had sought other employment had been accepted by the relevant Department. The Tribunal also noted that this evidence was not challenged by the respondents.

Submissions

7. The Tribunal heard submissions from the respondent’s representative, Mr Mulqueen. Mr Mulqueen reviewed the evidence in the case and submitted that the respondent’s decision to dismiss the claimant in the circumstances was within the band of reasonable responses and was a decision another reasonable employer would have done in similar circumstances. However, Mr Mulqueen submitted that if the Tribunal found that there had been any irregularities in the respondent’s procedure that the Tribunal should note that the claimant’s failure to attend his appeal hearing did not give the respondent an opportunity to redress any procedural irregularities.

8. Mr Mulqueen went on to submit that if the Tribunal found for the claimant that the Tribunal should take into account that the claimant was totally at fault for his own behaviour and ultimately his dismissal. Mr Mulqueen submitted that the claimant was aware of the absentee policy, aware of the risk he faced in his position under that policy and of the penalty he faced if there were a repeat period of absence. Mr Mulqueen submitted that the Tribunal had a wide discretion to reduce any compensation awarded to the claimant on the basis of his contributory fault.

9. Mr Mulqueen also submitted that the claimant had failed in his duty to mitigate his loss and that the tribunal could not be satisfied in this case that the claimant had made any good efforts to obtain further employment.

10. Mr Mulqueen also submitted that the tribunal should bear in mind that any award of compensation should take into account that the claimant would have been made redundant in early September in any event.

The law

11. The Tribunal considered the relevant statutory provisions and case law.

12. Statutory provisions

The Employment Rights (Northern Ireland) Order 1996 provides at Article 126(1):-

“An employee has a right not to be unfairly dismissed by his employers.”

The Order goes on to state at Article 127(1)(c):-

“For the purposes of this Part if the employee is dismissed by his employer if and subject to Paragraph 2 and Article 128, and only if –

2. the contract under which he is employed is terminated by the employer (whether with or without notice).”

Article 130 of the Order goes on to state that:-

“(1) In determining … whether the dismissal of an employee is fair or unfair it is for the employer to show –

1. the reason (or if more than one) the principle reason for the dismissal; and

2. that it is either a reason falling within Paragraph 2 or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”

2. A reason falls within this paragraph if it –

(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do;

(b) relates to the conduct of the employee;

3. is if the employee was redundant;

…

2. In Paragraph 2(a) –

(a) capability in relation to an employee means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality;

…

2. Where the employer has fulfilled the requirements of Paragraph (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 administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably including a sufficient reason for dismissing the employee; and

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

The Employment Rights (Northern Ireland) Order 1996 as amended by the Employment (Northern Ireland) Order 2003 at Article 130A, goes on:-

“(1) An employee who is dismissed shall be regarded for the purposes as unfairly dismissed if –

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

2. the procedure has not been completed, and

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

The Tribunal’s conclusions

13. The Tribunal concluded that the respondent’s failure to send or give the claimant a copy of any letter advising him of the respondent’s intention to consider dismissing him or inviting him to any disciplinary hearing to that effect amounted to automatic unfair dismissal under Article 130A of the Employment Rights (Northern Ireland) Order 1996.

14. In this case Tribunal concluded that in the event that there had been no procedural shortcomings in the approach taken by the respondents the claimant would have been dismissed

15. Additionally the Tribunal concluded on the unchallenged evidence before it that the claimant would have been made redundant in September 2008.

Compensation

Article 152 of the Employment Rights (Northern Ireland) Order 1996 provides that where a tribunal makes an award of compensation that award shall consist of a basic award and a compensatory award.

The Basic Award

This is calculated by reference to the statutory formula as contained in Article 153 0f the Order. In this case the basic award =

½ x week’s pay x 6 + 1 x week’s pay x 3 = £1,092

The Compensatory Award

This is to be assessed by the Tribunal in line with the provisions of Article 157 of the Order and is to be amount

“…. As the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the claimant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer.”

The “loss sustained by the claimant” is set out in paragraph (2) of that Article.

The Tribunal concluded in this case that the claimant was entitled to such figure that reflected his loss of pay from the date of his dismissal until the date of the hearing, less any relevant deductions, namely £187 x 23 weeks = £4,301.

Loss of Statutory Rights £500

Total compensatory award £5,893

However Article 154 of the Employment Rights Northern Ireland) Order as amended by the Employment (Northern Ireland) Order 2003 provides that (5) Where-

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

(b) an order is made in respect of the employee under Article 146(4) and

(c) the amount of the award under Article 152(1)(a), before any reduction under Article 156(3A) or(4), is less than the amount of fours weeks’ pay, the industrial tribunal shall, subject to (1B), increase the award under Article 152(1)(a) to the amount of four week’s pay

In this case the claimant’s basic award is not less than the amount of fours weeks’ pay.

16. However, under the same Order, if an employer satisfies a tribunal on the balance of probabilities that the employee would have been dismissed even had fair procedures been adopted, then the claimant will not be entitled to receive a compensatory award.

Accordingly in light of its factual conclusions the Tribunal has decided that this claimant is not entitled to receive a compensatory award and orders the respondents to pay the claimant the sum of £1,092.

17. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 12 February 2009, Londonderry.

Date decision recorded in register and issued to parties: