Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/810_08IT.html
Cite as: [2009] NIIT 810_8IT, [2009] NIIT 810_08IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 810/08

CLAIMANT: Michael Duncan Riley

RESPONDENT: Hillmount Nursery Centre

DECISION

The unanimous decision of the Tribunal is that the claimant was unfairly dismissed and the Tribunal orders the respondent to pay the claimant 11,242.50.

Constitution of Tribunal:

Chairman: Miss P Sheils

Members: Mr G Hunter

Mr J McAuley

Appearances:

The claimant appeared in person and was represented by Miss Donna Riley.

The respondent was represented by Mr Burbridge of Peninsula Business Services.

The claim

The claimant lodged a claim to the Industrial Tribunal dated 1 June 2008 and lodged with the Tribunal on 4 June 2008 claiming that he had been unfairly dismissed by Mr Robin Mercer owner of Hillmount Nurseries, when Mr Mercer refused to accept a sick line covering a period of the claimant’s sick absence and when the claimant subsequently received his P45, his P60 and the payment of outstanding monies to his home during that period of sick leave.

The respondent denied that the claimant had been unfairly dismissed and stated that the claimant had resigned from his employment on 4 April 2008.

Sources of evidence

Witnesses

The Tribunal heard from the claimant and Mr Robin Mercer for the respondent.

Documents

During the course of the hearing the Tribunal received a number of documents including a statement of the claimant’s main terms of employment, the employee handbook, the sick line relating to the claimant’s period of the sick leave dated 7 April 2008 and various documents relating to the claimant’s earnings at the respondent organisation. The Tribunal also received correspondence relating to the claimant’s unsuccessful attempts to obtain alternative employment.

Findings of relevant facts

Having considered the oral and documentary evidence before it the Tribunal found the following facts either admitted or proved on a balance of probabilities;

The claimant commenced employment with the respondent in May 2005. He was employed as a nursery assistant with the range of responsibilities including fork lift driver, cleaner, plants assistant and customer assistant. During his employment the claimant was also asked from time to time to work for an outside contractor when his own duties permitted this.

On Friday 28 March 2008 the claimant attended work at 8.45 am. This was the weekend of the garden centre annual fair. It was agreed between the parties that this was a significant event in the garden centre’s business year as it was the centre’s opportunity to garner business contracts for the forthcoming year and it was one of the garden centre’s busiest weekends.

The claimant worked a weekend on weekend on-off rota and his weekend off fell on this weekend. The claimant had planned his weekend activities, which included getting his new bathroom fitted. A plumber had been arranged to come to his house at the weekend to assist the claimant in this work.

When the claimant arrived into work on Friday 28 March 2008 he was informed by an employee called Steve the claimant’s name was down on the rota to work that weekend. The claimant reminded Steve that the claimant was off that weekend and stated that he had his bathroom to finish. The claimant then spoke to Mr Mercer who advised him that irrespective of this prior arrangement the claimant was required to work that weekend. Mr Mercer stressed that this was a particularly busy weekend and as another member of staff, Wayne, was not coming in the claimant was required to work.

At this point the conversation between the claimant and Mr Mercer began to get heated. Mr Mercer indicated that he asked the claimant if the bathroom fitting could be put off to the following weekend but that the claimant refused to consider this. The claimant stated that he had sought to help Mr Mercer out by offering to work on the Saturday but remained adamant that he was unable to work on the Sunday, the day the plumber was due to fit the bathroom.

Mr Mercer then told the claimant that he knew where the gate was. The claimant responded by asking Mr Mercer if he was being sacked. Mr Mercer said no but at that point added that he thought the claimant regarded his work as a holiday camp and began to criticise the quality of his work. At this point the claimant walked away because this discussion was descending into an argument and was taking place at the shop counter in front of customers.

It was agreed between the parties that later on in the day the claimant approached Mr Mercer again. However there was a dispute between the parties about the nature of this conversation. The claimant maintained that he had asked Mr Mercer what way he would go about handing his notice in to which Mr Mercer replied “in writing”. At that point the claimant maintained that he had further replied “that’s no bother” and had walked away. On the other hand, Mr Mercer maintained that the claimant had approached him and said, “The notice that I have given you, do you want it/do you need it in writing?”. Mr Mercer maintained that he had answered that it would be preferable in writing and that was the sum total of the conversation between them.

The claimant did not attend work on either the Saturday or Sunday of that weekend. On the Sunday and while helping the plumber fit the bathroom a sink fell on the claimant’s foot. The claimant attended hospital and was told to stay off his foot for up to three weeks. On 3 April 2008 the claimant’s mother called at the garden centre and gave Mr Mercer a self-certifying sick line to cover the claimant’s first week of sick absence.

The claimant’s mother again went to the garden centre on 9 April with a further sick line from the claimant’s doctor. This sick line indicated that the claimant was suffering from an injury to his right ankle and that he should refrain from work for a three week period from the date of the sick line, 7 April 2008. The claimant’s mother handed the sick line to Mr Mercer who initially accepted it. However, Mr Mercer then followed the claimant’s mother to her car and advised her that the claimant did not work there any more, that he had handed in his notice. The claimant’s mother replied that this had not been the case but left when the respondent became argumentative.

On 11 April 2008 another employee from the garden centre called at the claimant’s home and gave him an envelope containing his P45, his P60 and a cheque for £304.

The claimant subsequently wrote to Mr Mercer by letter dated 29 April 2008. This letter stated that the claimant wished to raise a grievance and set out the facts of that grievance. The letter also stated that the claimant believed that he had been unfairly dismissed and sought a hearing to discuss the matter.

Mr Mercer contacted the claimant by telephone. There was a dispute between the parties as to what took place during this discussion. Mr Mercer stated that during this telephone call he invited the claimant to discuss the matter with him if the claimant wished to do so. The claimant stated that Mr Mercer had not formally invited the claimant to any meeting but had merely said something like - you know where I am.

In any event it was agreed that no arrangement was made during this call for any meeting to hear the claimant’s grievance. It was also accepted that Mr Mercer did not make any written response to the claimant’s letter.

The claimant did not at any stage state orally or in writing that he had resigned. Nor did he submit any notice of his intention to do so.

The Tribunal also heard from Mr James Angus, Mr Mercer’s brother-in-law. Mr Angus worked at the garden centre from time to time as a contractor. He was working at the garden centre on the morning of 28 March 2008 and the claimant was working with him. Mr Angus stated that the claimant had made a remark to him to the effect that the claimant would be in a position to attend motor bike racing at Kirkiston the following year on the basis that he had just handed in his notice. Mr Angus stated that when he had heard that the claimant had submitted a claim for unfair dismissal that he had told Mr Mercer what the claimant had said to him about the motor racing.

The claimant accepted that he had had a discussion with Mr Angus about motor cycle racing at Kirkiston. However the claimant denied saying that he would be in a position to attend the race the following year because he had just resigned from his job that morning or saying that he had handed in his notice at all.

The Tribunal accepted the claimant’s version of this conversation. The Tribunal noted that Mr Mercer did not make any reference to this discussion with Mr Angus in his evidence. The Tribunal would have expected Mr Mercer to have referred to this important conversation.

Submissions

23. The respondent’s representative, Mr Burbrige, urged the Tribunal to consider the case of Sothern v Franks Charlesly & Co [1981] IRLR 278. Mr Burbrige submitted that the facts of that case were similar to the present case, where the claimant in it had used the words “I’m resigning” and these words had been held by the Court of Appeal to have been unambiguous and capable of that reasonable interpretation. The words were also held by that court to be in the present tense, giving no indication of futurity and not capable of meaning anything like “I shall be going in due course on a date we all agree” or “I shall be giving you my due two weeks notice in writing pursuant to the terms of my contract of employment”.

The law

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

Statutory Provisions:-

The statutory provisions are contained in the Employment Rights (Northern Ireland) Order 1996 where Article 126 of that Order 1996 sets out the right of an employee not to be unfairly dismissed by his employer.

Article 127 adds:-

(1) for the purposes of the Part an employee is dismissed by his employer if; and

subject to paragraph (2), only if –

(1)(a) the contract under which he is employed is terminated by the employer (whether with or without notice), …..

(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

Article 130 of that 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 -

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) 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.

A reason falls within this paragraph if it –

(b) relates to the misconduct of the employee

Article 130(4) goes on:-

Where the employer has fulfilled the requirements of paragraph (1), the determination of 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 in treating it as a sufficient reason for dismissing the employee, and

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

Case law

The Tribunal considered the relevant case law and in particular the case to which it had been referred by the respondent’s representative.

The Tribunal’s conclusions

25. The Tribunal considered the law relevant to this case and in particular case law in relation to the issue as to whether or not anything the claimant said to Mr Mercer could have been taken by Mr Mercer as amounting to the claimant’s resignation. Although the Tribunal noted that the claimant had asked Mr Mercer the question “How do I go about handing in my notice?” the Tribunal did not find that this was a sufficient indication by the claimant either that he had in fact resigned or that he had any intention of doing so.

26. The Tribunal concluded that the words used by the claimant contained exactly the “indication of futurity” required by the Court Of Appeal in the Sothern case, the element of possibility of resigning, or not, at some future date.

27. In reaching this conclusion the Tribunal took account of the fact that the claimant subsequently submitted a self-certifying sick note and followed this with a sick certificate from his doctor. The Tribunal also took into account the fact that the claimant lodged a grievance within a relatively short period of time subsequent to his conversations with Mr Mercer.

28. The Tribunal also took account of the fact that at no stage during the course of the events did Mr Mercer ask the claimant to confirm whether or not he had resigned nor did he write to the claimant to clarify the position with the claimant or to indicate to the claimant that it was Mr Mercer’s view that the claimant had resigned. This was in spite of a number of opportunities open to Mr Mercer to do so; on receipt of the self-certifying sick line covering the claimant’s initial period of absence, on receipt of the doctor’s sick line certifying the claimant’s further absence or in a covering letter enclosed with the claimant’s P45, P60 and cheque for outstanding or, most significantly, in response to the claimant’s letter raising the grievance.

29. Accordingly the Tribunal concludes that the claimant was unfairly dismissed by the respondent.

30. Compensation

Article 152 of the Employment Rights (Northern Ireland) Order 1996 provides that compensation awarded by a Tribunal should consist of a basic award and a compensatory award.

The basic award

Article 153 sets out the formula by which such basic award is to be calculated.

The basic award in this case according to this formula is:-

1 x 2 x £215 £ 430.00

The compensatory award

Article 157(1) provides that the amount of the compensatory award shall be such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer".

The claimant’s last pay date was 11 April 2008. He did not claim jobseekers allowance. However the Tribunal was satisfied for the evidence produced that the claimant had made several applications for alternative jobs and that he had therefore made attempts to mitigate his loss. At the date of the hearing the claimant had not secured alternative employment.

The claimant was in receipt of Incapacity Benefit from the 14 August 2008 at £63.75 per week.

The Tribunal awards the claimant compensation at the rate of his weekly pay x the number of weeks from the 11 April 2008 up to the date of the hearing:-

£215 x 32 £6,880.00

The Tribunal further awards the claimant compensation representing a further reasonable period of time during which the claimant is unlikely to obtain employment, less the amount of his incapacity benefit:-

£215 x 26 weeks -£63.75 x 26 weeks £3,932.50

Total compensation

£430 + £6,880 + £3,932.50 £11,242.50

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

Chairman:

Date and place of hearing: 27 November 2008, Belfast

Date decision recorded in register and issued to parties: