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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCourt v John Steele t/a C & J Steele S... [2009] NIIT 311_09IT (23 September 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/311_09IT.html
Cite as: [2009] NIIT 311_9IT, [2009] NIIT 311_09IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 00311/09
CLAIMANT: Harry Henry McCourt
RESPONDENT: John Steele t/a C & J Steele Scaffolding (a bankrupt)
DECISION
The decision of the Industrial Tribunals is that the claimant was unfairly dismissed and the respondent is liable to pay him the sum of £10,930.00 by way of compensation for unfair dismissal.
Constitution of Tribunal
Chairman: Miss E McCaffrey
Panel Members: Mr J Kinnear
Mr I Rosbotham
Appearances:
The claimant was represented by Mr Macklin, Trade Union Representative of the GMB Trade Union.
The respondent did not appear and was not represented.
1. THE ISSUES
This case was a claim of unfair dismissal brought by the claimant against the respondent. At the outset of the hearing it was noted that the correct name of the respondent should be John Steele t/a C & J Steele Scaffolding. The claimant produced information that the respondent had been adjudicated bankrupt on the 20th April 2009 and accordingly we order that the title of the respondent should be amended to read John Steele t/a C & J Steele Scaffolding (a bankrupt). The issue for the tribunal to decide is whether the claimant was unfairly dismissed by the respondent in being dismissed in his absence, without having been provided with a copy of the respondent’s disciplinary procedure and in being denied an appeal against dismissal.
2. THE FACTS
2.1 As the respondent did not appear, the tribunal heard evidence from the claimant alone. On the basis of the evidence heard and the response form lodged by the respondent, we make the following findings of relevant facts. The claimant was employed by the respondent as a scaffolder. His employment commenced in August 2004 and he was dismissed on 17 November 2008. He was aged 56 at the date of dismissal and had four complete years of service. The claimant was paid £425.00 per week (gross) or £295.00 net of tax and national insurance.
2.2 On 27 October 2008, the claimant had been working with a number of men on site. He was approached by Mr McNally one of the respondent’s managers. During that conversation, Mr McNally asked the claimant if he had filled in the “book” setting out the work done on that day. The claimant replied that he had done. He also pointed out that he had never been asked to do it and was not paid any supplement for keeping this record as other employees had been. The claimant then asked Mr McNally why he had come down so hard on him and the others who were with him. Mr McNally replied “I will come down on you like a ton.” The claimant then said that if Mr McNally wasn’t happy with the way that he kept the book, he could get someone else to do it and that he wasn’t doing it anymore. Mr McNally asked a work colleague who was standing by if he would keep the book and that colleague answered that he would not. Mr McNally then said, “Both of you are on a week’s notice.”
2.3 The following morning the claimant and two colleagues made their way to unit 1, on the site. It was snowing at the time. The site manager a man named William approached them and he said he wanted them to strip units 5 and 6 of scaffold. He told them they should not leave the job until it was completed. The claimant asked him to repeat this and their instructions were confirmed. It was still snowing when they started to strip units 5 and 6. Around 9.45am the snow was so heavy that they climbed down off the scaffold and stood in unit 2. Mr Boden, one of the managers on site, then approached the claimant and his colleagues and asked what was happening, the claimant responded that it was snowing. The claimant’s evidence was that if it was snowing so heavily that visibility was affected, work was stopped. The firm’s practice was that they would work in the rain if possible until lunchtime and then go home. Mr Boden was aware of this practice. Mr Boden said to the claimant, “You are very observant” and then said that he wouldn’t put a dog out in that weather. The claimant replied that they would carry out normal procedure regarding working in the rain, finish the job and go home at lunch time and that Mr Boden could phone Mr McNally to confirm. Mr Boden replied that he wouldn’t do that. He said that there was another job in unit 6 that he wanted done. The claimant replied that William the senior manager on site had told them not to leave the job they were on, he asked Mr Boden to see William at tea time and give them further directions after the break. Mr Boden’s reply was that it didn’t matter if it was still raining at half past 2 or not, they were to go on with the job. The claimant replied that they would carry out the normal procedure and do the job that William had asked them to do until that job was finished and that they would inform their own boss and then go home. Mr Boden said that he didn’t understand the claimant’s reason about going out to work in the rain at 2.30 and the two men had words. The claimant says that he pointed to his head and said, “Can you not work that out for yourself?” Mr Boden then stepped forward, dipping his head towards the claimant and said, “Are you calling me stupid?” The claimant replied that he hadn’t used that word. Mr Boden said “You will apologise.” The claimant replied that he had nothing to apologise for and wouldn’t apologise. Mr Boden then drew back but said to the claimant, “You are one dick, boy”. The claimant replied, “And you’re a bright spark.” Mr Boden went to the office and the claimant did not see him again.
2.4 Mr McNally later came on to the site around 1.45pm and said that Mr Boden had phoned him. He called the claimant into one of the offices and sat him down with another manager Niall Fagan from their own firm. Mr McNally then put it to the claimant that he had been abusive to him the day before and the claimant replied that he was not abusive. The claimant asked if he was not entitled to representation to which Mr McNally replied, “No.” Mr McNally suggested that the claimant had failed to carry out the terms of his contract. The claimant said that he had never signed a contract to fill out the book and it was not in his contract. Mr McNally asserted that he had. The claimant asked about representation at the meeting and Mr McNally replied that he was not entitled to representation. The claimant felt intimidated and said to Mr McNally that if he was sick, could he leave. Mr McNally replied that he could, the claimant said that he had to leave then. As the claimant got up to go, Mr McNally said to him, “You are walking out then.” The claimant said that he didn’t feel well. The claimant went to the toilet and then to the canteen, Mr McNally then followed him and read out a full statement regarding suspension. It was to the effect that the claimant was suspended due to gross misconduct and breach of contract. The claimant asked for what period of time he was being suspended, and Mr McNally said he would be informed by post. The claimant got changed and left the site.
2.5 The claimant subsequently went to the Citizens’ Advice Bureau where staff phoned his employer and asked for information regarding terms and conditions and disciplinary procedures. The respondent wrote to the claimant on 29 October, inviting him to a disciplinary meeting the next week.
2.6 On 29 October, the claimant received a letter requesting he attend a disciplinary meeting. The claimant wrote again to the respondent on the 30 October requesting a copy of his Contact of Employment, Terms and Conditions, the Employer’s Code of Practice, his Job Description and disciplinary procedures. He also requested that the date of the disciplinary meeting be deferred until two or three days after he received the requested documentation.
2.7 The claimant’s union representative Mr Dawson became involved and telephoned the respondent on the claimant’s behalf. Mr Dawson subsequently phoned the claimant and said that he would probably receive a phone call asking him to go back to work pending disciplinary hearing.
2.8 On Friday 4 November, the claimant received a letter from Mr Steele indicating that they were going ahead with disciplinary hearing the following Monday with or without the claimant and his representative. This meeting went ahead in the claimant’s absence and he subsequently received a letter dated 17 November 2008 from Seamus McNally advising him that he was being dismissed for breach of contract and gross misconduct. He was advised in that letter of his right to appeal. The claimant wrote to the respondent on 19 November 2008 requesting an appeal and repeating his request for documentation. No appeal hearing took place because the respondent did not convene it at any time. The response form indicates that the claimant failed to suggest a date, but the claimant wrote to the respondent and it would then be for the employer to arrange a meeting.
2.9 The claimant sought alternative work but did not receive any offer of employment until approximately 17 weeks after his dismissal when he started work in Asda on a part-time basis. He started work on 17 March 2009 and his take home pay from this work is £170.00 per week. During the period of his unemployment he received Job Seeker’s Allowance of £60.00 per week. The claimant confirmed that he had received all holidays he was entitled to and was not due any overtime.
3. THE RELEVANT LAW
3.1 Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 (the 1996 Order), an employee is entitled not to be unfairly dismissed by his employer. Under Article 130 of the 1996 Order, it is for an employer to show whether the principal reason for the dismissal is a fair one under Article 130 (2), i.e. it relates to the capability and qualifications of the employee to do the job, the conduct of the employee, the employee is redundant or that the employee cannot continue working in the position without contravening a statutory duty.
3.2 Under Article 130 (A) an employee who is dismissed will be regarded as unfairly dismissed if one of the procedures set out in Part I, Schedule I to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) (“the 2003 Order “) applies in relation to the dismissal, the dismissal has not been completed and its non-completion is wholly or mainly attributable to failure by the employer to comply with the provisions.
3.3 Under the Provisions of Schedule I to the 2003 Order, the standard disciplinary procedure which must be followed consists of three steps. The first is that the employer must set out in writing the employee’s alleged conduct or characteristics which led him to contemplate dismissal or disciplinary action against the employee. The second stage consists of a meeting between the employer and the employee, which must take place before any disciplinary action is taken (unless the employer considers it appropriate to suspend the employee). That meeting must not take place until the employer has informed the employee of the basis for the disciplinary action, the employee has had a reasonable opportunity to consider his response and the employee must take all reasonable steps to attend the meeting. After the meeting the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.
3.4 The third step is the appeal. The employee must inform the employer of his wish to appeal and the employer must then invite him to attend a further meeting. Again the employee must take all reasonable steps to attend the meeting. After the appeal meeting, the employer must inform the employee of his final decision but disciplinary action does not have to be delayed until the appeal has been heard.
4. Decision
4.1 The tribunal is satisfied on the basis of the evidence heard that the claimant in this case was unfairly dismissed. He was called to an interview by Mr McNally on 28 October with no notice and was not told of his right to be accompanied.
4.2 When the claimant was subsequently suspended, albeit on full pay, he was then advised that he was to be called to a disciplinary meeting. Quite reasonably, the claimant sought further information about this and asked for copies of his contract and copies of the appropriate disciplinary procedure. There was a delay in providing these documents to the claimant. The disciplinary procedure which was forwarded to him was the Labour Relations Agency’s Code of Practice on Disciplinary Procedures. While this is an excellent general document, it does not set out specifically an individual employer’s disciplinary procedure in that it does not categorise misconduct or set out the sanctions which may be imposed for misconduct of various kinds. This may vary from employer to employer, depending on the nature of their business.
4.3 In the light of this, the claimant did not go to the disciplinary hearing on 17 November, which was conducted in his absence and the absence of his Trade Union representative. Following this he was advised that he had been dismissed for gross misconduct. He indicated that he wished to appeal, but the employer never convened an appeal meeting in spite of the fact that the onus to convene such an appeal lies squarely on the employer’s shoulders, under the provisions of Schedule I to the 2003 Order. The statutory procedures have not therefore been followed.
4.4 The tribunal is satisfied that the employer’s failure to provide the claimant with copies of its procedure and to provide the claimant with details of the evidence against him from other witnesses signal a failure to follow proper procedures mean that a fair dismissal procedure was not followed. The claimant’s representative did not make any detailed submissions in relation to the remedies which should be provided except to say that they believed that if the claimant continued to be employed, he would have been given statutory redundancy pay.
4.5 The tribunal is of the view that the claimant was unfairly dismissed and is entitled to be compensated according to the principles set out in the Employment Rights (Northern Ireland) Order 1996. The claimant’s take home pay was £290.00 per week at the date of his dismissal. He was aged 56 at the date of dismissal and was entitled to a week and a half’s pay for each full year of service by way of a basic award. He was unemployed for 17 weeks and when he did find new employment, it was at a lower rate of pay than previously, so that he has an ongoing loss of £120.00 per week.
4.6 The tribunal therefore orders the respondent to pay to the claimant compensation calculated as follows:-
Basic award
Net pay - £290.00 per week x 4 years x 1½ weeks = £1,740.00
Compensatory award
£290.00 per week from 17 November 2008 – 17 March 2009
17 weeks @ £290.00 = £4,930.00
17 March 2009 – 4 August 2009= 20 weeks
Ongoing loss £290.00 - £170.00 = £120.00 per week x
20 weeks = £2,400.00
Future loss
13 weeks x £120.00 = £1,560.00
Loss of Statutory Rights = £300.00
Total: = £10,930.00
We have considered whether we should award an uplift on the award, due to the failure of the respondent to comply with the statutory procedures, but have decided against this as the respondent is bankrupt and it would not therefore be appropriate. This is a relevant decision for the purposes of the Employment Protection (Recoupment of Job Seeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.
The amount of the monetary award is £10,930.00.The amount of the prescribed element is £7,330.00.The dates of the period to which the prescribed element is attributable are from 17 November 2008 to 17 March 2009. The monetary award exceeds the prescribed element by £3,600.00.
This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 4 August 2009, Belfast.
Date Decision entered in the Register and issued to the parties: