Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 01519/08

CLAIMANT: Sean McAlinden

RESPONDENT: Tinnelly International Transport Limited (in administration)

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and he is awarded £7456.00 in compensation.

Constitution of Tribunal:

Chairman: Mr Wimpress

Members: Mr Irwin

Mr Lowden

Appearances:

The claimant was represented by Mr Malachy Bernard, Barrister at Law, instructed by Fisher & Fisher, Solicitors

The respondent did not appear and was not represented

1. The respondent did not attend the hearing and was not represented. The respondent had submitted a response and was previously represented by Rosemary Connolly, Solicitors but that firm had recently come off record. In these circumstances, the tribunal being satisfied that the respondent had been notified of the date and place of hearing determined that it was appropriate to proceed with the hearing in the absence of the respondent. In so doing the tribunal took into account the matters set out in the response filed by the respondent.

Sources of Evidence

2. The tribunal heard evidence from the claimant and was provided with a Schedule of Loss prepared by his representative.

The Claim and the Response

3. The claimant's claim is one of unfair dismissal and arises from the claimant's employment with the respondent. As set out in the claim form the circumstances were that a car belonging to a co-worker was damaged in the respondent's yard some days previously. Mr Kevin Tinnelly accused the claimant of causing the damage by driving over an aluminium pipe. The claimant asked to see the CCTV and Mr Tinnelly told him to forget the video evidence and either to pay up or not to bother coming back. The claimant considered himself to have been dismissed and gathered his tools and left. In its response the respondent denied that the claimant had been dismissed, maintained that significant damage had been caused to an employee's car by the claimant's negligent driving, alleged that the aluminium piping fell away when the claimant was asked to release his hand brake, denied telling the claimant to either pay or not come back and that the claimant was not dismissed but simply failed to return to work.

The Issues

4. (1) Whether the claimant had one year's continuous employment.

(2) Whether the claimant was dismissed.

(3) If the claimant was dismissed whether it was fair.

(4) Alternatively whether the claimant was constructively dismissed.

(5) What was the appropriate amount of compensation if the claimant was unfairly dismissed?

The Facts

5. The claimant's date of birth is 29 July 1987. According to the claimant's claim form he was employed from August 2007 to 15 August 2008. In his evidence to the tribunal the claimant stated that his first pay at work was Friday 11 August 2007. This was supported by the claimant's pay slip which indicated that his first week of paid employment for the respondent ended on 11 August 2007. In addition the claimant would be entitled to the benefit of one week's notice. On this basis we are satisfied that the claimant had at least one year's continuous employment and is thus able to claim unfair dismissal.
6. The words uttered by Mr Tinnelly were undoubtedly capable to amounting to dismissal and the claimant certainly interpreted them in this manner. While it might be plausibly suggested that the words spoken were ambiguous and not spoken with the intention of dismissing the claimant we did not have the benefit of receiving Mr Tinnelly's evidence on this issue. The claimant did not leave the respondent's premises immediately but rather tidied his heavy tools away and waited until his father collected him and the tools in his van. We do not regard this delay as casting any doubt on the claimant's evidence that he left as a result of his dismissal. We are therefore satisfied that the claimant was in fact dismissed.
7. The onus of proof is on the respondent to show that the ground for dismissal was both potentially fair and was in fact fair and reasonable in all of the circumstances. On the basis of the response filed by the respondent the only potentially fair reason for dismissal would be conduct in relation to the negligent driving of a vehicle. The response is however consistent with the claimant's case that there was no investigation and no disciplinary process instigated. Further on the uncontested case put forward by the claimant there was no opportunity for the claimant to set out his case or challenge the evidence against him. In particular the claimant was denied access to the video evidence. Accordingly the basic ingredients of a potentially fair dismissal were not established and in the absence of any contrary argument from the respondent we are satisfied that the claimant was unfairly dismissed.
8. Mr Bernard argued in the alternative that if the tribunal did not accept that the claimant was dismissed the tribunal should find that he was constructively dismissed. The authors of Harvey at DI [403] describe four conditions that an employee must meet in order to claim constructive dismissal:

(1) There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.

(2) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving. Possibly a genuine, albeit erroneous, interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

(3) He must leave in response to the breach and not for some other, unconnected reason.

(4) He must not delay too long in terminating the contract in response to the employer's breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.

9. We are also satisfied that the respondent's behaviour towards the claimant in relation to the alleged damage to a co-worker's car was a fundamental breach of the contractual duty of trust and confidence and therefore the claimant would have been justified in walking out and claiming constructive dismissal. There is no evidence that the claimant left for any reason other than the respondent's behaviour and any delay was minimal and fully explained.
10. The claimant sought alternative employment immediately and after an unhappy three week spell working on a commission paid basis for a company that sold vacuum cleaners (without ever earning any commission) the claimant secured full time employment with Rooney Fish on or about 3 February 2009. The claimant earns less working for Rooney Fish than when he worked for the respondent and hopes to return to the type of work that he is trained for in the fullness of time.
11. The claimant was in receipt of Jobseekers Allowance from 18 August 2008 to 2 September 2008 and from 26 September 2008 to 2 February 2009.
12. Subsequent to the hearing on 10 March 2009 an issue arose as to the precise period over which the claimant was in receipt of Jobseekers Allowance. The claimant's solicitors endeavoured to deal with this by way of written submissions but this in turn cast doubt on the correct starting date of the claimant's employment with Rooney Fish. In these circumstances, the tribunal considered that it was appropriate to reconvene in order to provide the claimant with the opportunity to give further oral evidence on this issue. The claimant did not attend the reconvened hearing which we understand was due to a problem in taking time off work. Nor was the claimant represented at the hearing as he was unable to meet the cost of further legal representation. The claimant's solicitors did however offer to deal with the matter in writing and submitted further correspondence which helped clarify matters. We have carefully considered both the claimant's oral testimony and the documentary evidence and we are now satisfied that the dates given by the claimant in his oral evidence are correct.
13. The tribunal also received correspondence from Mr Kevin Tinnelly dated 9 June 2009 on headed paper with the title "Tinnelly Transport Limited" which indicated that the claimant was employed by Tinnelly International Transport Limited and that this company went into administration on 24 February 2009. A letter from the Administrator, D R Morris of the Redfern Partnership, was also enclosed. The letter states that the business and assets of the company were sold on 24 February 2009. Both the claimant's payslips and P45 give Tinnelly International Transport Limited as his employer and in these circumstances we are satisfied that the correct identity of the respondent is now Tinnelly International Transport Limited (in administration) and the title to the proceedings is amended accordingly.

Conclusions

14. (1) We are satisfied that the claimant had one year's continuous employment prior to his dismissal.

(2) We are satisfied that the claimant was dismissed.

(3) The claimant was unfairly dismissed.

(4) Even if we had not been satisfied that the claimant was dismissed, we would in the alternative have held that he was constructively dismissed.

Compensation

15. Basic Award (£327 x 1x 1) £327.00

Compensatory Award (£245 x 29) £7,105.00

Loss of Statutory Rights £250.00

Future Loss (£40 x 23) £920.00

Sub-total £8,602.00

Less earnings received from Rooney Fish

from 3 February 2009 (£229.20 x 5) £1146.00

Total £7456.00

16. The Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996. The award is therefore subject to recoupment of Job seeker's Allowance from 18 August 2008 to 2 September 2008 and from 26 September 2008 to 2 February 2009 totalling £979.55.
17. The attached Recoupment Notice forms part of the decision of the tribunal.
18. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1996.

Chairman:

Date and place of hearing: 10 March 2009 and 11 June 2009, Belfast.

Date decision recorded in register and issued to parties: