Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McLaughlin v Touchwood Manufacturing Compan... [2009] NIIT 1412_08IT (28 May 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/1412_08.html
Cite as: [2009] NIIT 1412_08IT, [2009] NIIT 1412_8IT

[New search] [Printable RTF version] [Help]

THE INDUSTRIAL TRIBUNALS

CASE REF: 1412/08

CLAIMANT: Gerard McLaughlin

RESPONDENT: Touchwood Manufacturing Company Limited

DECISION

The unanimous decision of the tribunal is that the claimant was not dismissed by the respondent and consequently was not unfairly dismissed.

Constitution of Tribunal:

Chairman: Mr Cross

Members: Mr MacLaughlin

Mr Heaney

Appearances:

The claimant was represented by Ms Fee, Barrister-at-Law, instructed by Brolly Jameson, Solicitors.

The respondent was represented by Ms Best, Barrister-at-Law, instructed by Copeland McCaffrey, Solicitors.

Evidence

1. The tribunal heard evidence from the claimant and Mr McIlhatton for the claimant and from Mr Porter, Mr Fikner, Mr McBride and Mr Convery on behalf of the respondent.

Findings of fact

2. The claimant who was born on 28 December 1962, commenced employment with the respondent on 9 December 2001.

3. On 5 March 2008 the claimant was injured in a road traffic accident on his way to work. On his return to work on 1 July 2008, a discussion occurred between the claimant and Mr McBride, one of the directors of the respondent company, which resulted in the claimant leaving the respondent’s factory.

4. There were two accounts of what happened on that morning and these conflicting accounts are the basis of the dispute between the parties. There were also disputes as to many of the events leading up to the events on 1 July 2008, these are set out below; with the tribunal’s findings of fact in so far as such findings were made.

5. Some time after the claimant’s accident, whilst he was still registered by his doctor as unfit to work, the claimant was visited by an old friend and previous employer, Mr McIlhatton, who was the owner of a business called Mountfield Kitchens. This company made bespoke kitchens, whilst the respondent was a producer of mass produced kitchens which were of a cheaper type. Mr McIlhatton had called to see his friend who was injured and during the discussion he suggested that if the claimant had any need to do any work on his house, whilst still unable to recommence work, he could make use of the facilities at Mountfield. The claimant, who had various jobs in hand in his house took up this offer and visited Mountfield many times before he went back to work at the respondent.

6. The respondent had, in an effort to help the claimant to get back to work and because the respondent had a particular need for his skills in a particular area, asked the claimant to come back to work for three days at the end of April 2008. This the claimant did and at the end of the three days he had asked to be paid in cash so that he could continue on benefit. Mr Mc Bride had refused this request. This annoyed the claimant, even though the other director of the respondent company, Mr Convery, tried to explain the reason to him. Other than that few days in April, the claimant did not return to work for the respondent until his return in July.

7. This refusal to pay cash to the claimant is surprising, as the claimant told the tribunal that he was paid by the respondent, partly by cheque and partly in cash, when he was working prior to the accident. This was denied by the respondent. This was another of the disputed facts that had to be considered by the tribunal. In this instance the tribunal found as a fact that the claimant’s account of the way his wages were paid was the correct account; as his initial wages in 2001 comprised a cheque for £200 and £50 cash, which cash sum rose to £60 three years later. The evidence of the respondent was that the claimant was paid a cheque for £200 from his starting date in 2001 until his accident and that he was never given a rise in wages, which the tribunal found hard to accept.

8. The respondent, through its director, Mr McBride, became aware of the fact that the claimant was visiting Mountfield. Mountfield had employed the claimant before he went to work with the respondent. The respondent knew that the claimant had a personal injury claim in respect of the accident and also an Accident Hospital Benefit Policy, which paid the claimant £600 per month whilst he was off work as a result of an accident. The respondent became suspicious that the claimant was working for Mountfield, whilst pretending that he was still unfit for work, thus exaggerating his insurance claim for loss of wages. The respondent established contact with the insurance investigator who was involved in the claimant’s claim for injuries and loss of wages and between them they took various actions to check upon the claimant’s visits to Mountfield.

9. After one sighting of the claimant at Mountfield at 11.30 am on 19 June, Mr McBride telephoned to the claimant at 2.30 pm on the same day to see when he was likely to return to work. The claimant immediately told Mr McBride that he had been down to Mountfield to get some material for the house. This interested Mr McBride as he had not mentioned Mountfield to the claimant. In the afternoon at 3.00 pm the claimant’s car was still at Mountfield and he was seen leaving with a lunch box at 6.00 pm.

10. Evidence was given by Mr Porter, who was an employee of Mr McBride, but not of the respondent company. Mr Porter was asked by Mr McBride to watch the home of the claimant and follow him when he left. Mr Porter did this on Friday 20 June 2008. He saw the claimant leave his house at 8.10 am in the morning and followed him to Mountfield. Although Mr Porter did not stay at Mountfield all day he did return in the evening in time to see the claimant leave Moutfield, with a lunch box under his arm, at 6.00 pm.

11. After the accident the claimant received Statutory Sick Pay from the respondent and this was paid to him by a cheque for £72.50 each week for which the claimant had a medical certificate. Sometimes the certificates were delivered late to the respondent but the claimant did produce certificates for all his time on sick leave.

12. Mr McBride had recorded in his diary, seven occasions, on which the claimant himself, or his car in the car park, were seen at Mountfield, between 15 May and the end of June. Mr McBride came to the conclusion that the claimant was working for Mountfield. The claimant did not deny that he was at Mountfield, but that he was doing work for his own house and was not employed by Mountfield. The claimant’s explanation was supported by the evidence of Mr McIlhatton.

13. Mr McBride gave evidence, backed up by a number of diary entries, which showed that he had made many trips to the Mountfield factory and had spotted the claimant’s car in the car park. This indicated to him that the claimant was in the factory. However the tribunal was informed and accept that other members of the claimant’s family did occasionally use the claimant’s car.

14. On 1 July the claimant came back to work at the respondent’s factory. He went into the office and had a conversation with Mr McBride at which the parties agreed that a discussion took place regarding the dates that the claimant was seen at Mountfield. The discussion appears to have got heated as the claimant, according to Mr McBride, said that that was none of McBride’s business. Furthermore, Mr McBride informed the claimant that the insurers, Quinn Direct, had been informed of the activities of the claimant, as observed by the respondent’s director and others. At one stage of the discussion, Mr McBride said to the claimant that he could go out of the door and turn either left or right, left out of the factory and out of his job, or right into the yard and get on with his work. The conversation came to an end and the claimant left the office and started work. He spent the first part of the morning assisting in the loading of a lorry.

15. The evidence then differs between the parties. The claimant states that at 10.15 am he went upstairs in the building for his tea break. The claimant was alone in the canteen. Mr McBride came in and according to the claimant, asked him for his key to the factory and then said, “lift your lunch box and go, I can’t work with liars.” The claimant then told the tribunal that he went out of the building and drove his car out of the yard. He considered that he had been dismissed. He immediately went to his solicitor and instructed her to start the process of grievance complaint relating to the claimant’s unfair dismissal. The claimant’s solicitor wrote to the respondent on 1 July claiming that the claimant had been unfairly dismissed.

16. Mr McBride’s evidence to the tribunal was that he did not go up to the canteen and that his only conversation with the claimant was in the office. He did not dismiss the claimant, but after asking him about his involvement with Mountfield, he told the claimant that he just wanted the truth. It was up to the claimant whether he stayed or not. He stated that the claimant could go out of the office and turn right down to the shop floor or turn left and leave the building.

17. In fact the respondent went right and helped load the lorry. This part of the narrative is consistent from both parties. The tribunal had great difficulty in deciding where the truth lay in these two conflicting stories. Clearly if the claimant was dismissed, it was not at the interview in the office, as the claimant went to help load the lorry and then went to the canteen. Mr McBride states that he did not have another discussion with the claimant before he drove out. Thus the respondent’s case is that the claimant left of his own decision. The respondent has always denied that the claimant was dismissed. The onus of proof, on the balance of probabilities standard of proof, is on the claimant to convince this tribunal that the claimant was dismissed.

18. In order to see if the claimant has discharged this onus the tribunal have considered other evidence, to try and find support or corroboration for the claimant’s verbal testimony. The claimant was adamant that the words, “lift your lunchbox and go, I can’t work with liars”, were said by Mr McBride in the canteen at the second interview. The surrounding evidence was that of Mr Fikner, another employee of the respondent. He was having a smoke in the yard of the respondent’s plant, just outside the office door. Mr Fikner had been upstairs for his tea in the canteen and had come down for his smoke at about 10.30 am on the day in question. He noticed Mr McBride in the office and testified that to the best of his knowledge Mr McBride did not leave the office. If he had gone up to the canteen he would have been heard by Mr Fikner, as the door through which Mr Mc Bride would have gone was held open with a piece of wood. Mr Fikner was on his own having a cigarette and awaiting the arrival of his colleagues who usually had a smoke with him. He would have heard Mr McBride passing on his way to the canteen. However Mr Fikner told the tribunal that the next thing that happened was that the claimant came past him at about 10.35 am with his lunch box. Mr Fikner then saw the claimant drive away in his car. On the next day, Mr Fikner found a key to the plant on a radiator, in the lobby outside the office. This turned out to be the claimant’s key.

19. This evidence tends to support the respondent’s story and confirm that Mr McBride is telling the truth and that he did not go up to the canteen, but gave a truthful account of the meeting in the office before the claimant went out to help with the lorry.

The law

20. In order to be entitled to claim compensation for unfair dismissal, under the provisions of the Employment Rights (Northern Ireland) Order 1996, it is necessary for a claimant to satisfy a tribunal that he was dismissed by his employer.

21. As stated, the onus of proving that a dismissal occurred is on the claimant. He must show, that on the balance of probabilities, his employer dismissed him from his employment and that he did not leave of his own volition.

Decision

22. The tribunal in this case have heard much conflicting evidence of events from the claimant and from witnesses for the respondent. In some instances the tribunal has preferred the evidence of one side over that of the other, as in the instance of the way that the claimant was paid in cash and cheque. There was much conflicting evidence as to whether or not the claimant was working for Mountfield, or, as the claimant insisted, was only making fittings for his own home. The respondent’s director, Mr McBride, was convinced that the claimant was indeed working for Mountfield. The tribunal make no finding as to whether or not the claimant was so working, as the tribunal hold that such a finding is not required, the case being decided on the events that occurred on 1 July, the day on which the claimant returned to work at the respondent’s factory. On the question of the events of the claimant’s first day back at work, after his accident recovery period, the tribunal accept the respondent’s version of events.

23. It seems to the tribunal, most unlikely that Mr McBride would have gone up to the canteen, to have a conversation with the claimant about matters of this nature. Mr McBride would not have known who was in the canteen at that time. Mr Fikner was smoking on his own, as he had come down from the canteen early. The tribunal asked itself, why would Mr McBride go up to the canteen, when he did not know who was there and who might come in at any moment? Mr McBride would, in the opinion of the tribunal, be far more likely to have called the claimant to attend upon him in his office, as he had at the first interview earlier in the day.

24. The other point that occurred to the tribunal was that the evidence showed that although day-to-day management of the business was the responsibility of Mr McBride, it was Mr Convery who made most of the employment and recruitment decisions. He would have conducted any staff interviews on his day in the office. The tribunal hold, that on the balance of probabilities, after weighing all the conflicting evidence on the point, that it would be most unlikely that Mr McBride, having got through the earlier interview with the claimant, on his own in the absence of Mr Convery, would have gone storming up to the canteen to re-open the discussion with the claimant, not knowing who might be there.

25. The tribunal therefore holds that the second meeting upstairs did not take place and that the claimant, having come to the realisation that Mr McBride had had him followed to Mountfield and had taken pictures of his car there, decided to leave the respondent’s employment. The claimant, after seeing this evidence at the earlier meeting and having had time to think about his situation whilst loading the lorry, felt that he should leave his employment. He then went straight to his solicitor to claim that he had been unfairly dismissed. On the adage that ‘attack is the best form of defence’. He would have had time to consider the matter whilst he was loading the lorry and having his break, when no doubt he considered the statement of Mr McBride that he was in touch with the claimant’s insurance company.

26. Mr McBride had not handled the so called ‘back to work interview’ very well. It was more akin to a disciplinary interview with the production of the photographs of the Mountfield plant and the allegations of the claimant working there. There was no proper procedure adopted for a disciplinary meeting and it did not result in any sanction being imposed on the claimant. It was agreed by both parties to that interview, that it ended with Mr McBride’s remark about the claimant either turning one way to leave, or the other way to continue with his work. The claimant left the interview and resumed his work. Consequently he was not dismissed but later that morning decided himself to leave the respondent’s employment. This in the view of the tribunal was the claimant’s own decision and the tribunal therefore holds that the claimant has not discharged the burden of proof laid upon him and consequently he was not dismissed by the respondent. The further evidence that the claimant would appear to have left his key in the lobby and not given it to Mr McBride, would, in the eyes of the tribunal, reinforce its opinion, that the claimant decided to leave his employment.

27. The tribunal therefore holds that the claimant was not unfairly dismissed from the respondent’s employment.

Chairman:

Date and place of hearing: 20 February 2009; 25-26 March 2009, Omagh

Date decision recorded in register and issued to parties: