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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Kandrotiene v McArdle Mushrooms [2010] NIIT 00418_10IT (18 August 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/00418_10IT.html
Cite as: [2010] NIIT 418_10IT, [2010] NIIT 00418_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 418/10
CLAIMANT: Jelena Kandrotiene
RESPONDENT: McArdle Mushrooms
DECISION
The decision of the tribunal is that the claimant was unfairly dismissed by the respondent and the tribunal award the claimant compensation in the sum of £4,169.04 .
This award is subject to recoupment in accordance with the attached schedule.
Constitution of Tribunal:
Chairman: Mrs A Wilson
Panel Members: Mr J Kinnear
Ms J McNulty
Appearances:
The claimant appeared in person and was unrepresented.
The respondent was represented by Mr P O’Kane,
Barrister-at-Law, instructed
by Lennon, Toner and O’Neill, Solicitors.
The claimant, not having a fluency in the English language, was facilitated by an interpreter Mr Vytantas Uzvalakas.
Order made during the hearing
1. During the course of the hearing Mr Uzvalakas complained to the tribunal that he felt pressurised by Ms Asta Krchrene, who was in attendance at the hearing as a friend of the claimant, Ms Krchrene was neither a witness nor a party to the proceedings. It was Mr Uzvalakas’ case that Ms Krchrene who is herself a qualified interpreter approached him during a break in the proceedings voicing criticism regarding the manner in which he was carrying
out his duties. Furthermore it was his case that due to the fact that Ms Krchrene was conferring in audible whispers with witnesses in the tribunal room during the hearing that he was having difficulty concentrating. For these reasons he felt unable to continue to interpret. Ms Krchrene admitted approaching Mr Uzvalakas regarding the manner in which he was executing his duties and it was apparent to the tribunal that there was audible conferring between the witnesses and Ms Krchrene in the manner objected to by Mr Uzvalakas.
The tribunal rose to consider the matter and in exercise of powers available to it under rule 10 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (the Regulations) and in furtherance of the overriding objective of the Regulations as set out in rule 3, excluded Ms Krchrene from the hearing on the grounds that her behaviour was interfering with the proper conduct of proceedings and deterring the tribunal from dealing with the case expeditiously, fairly and with a view to saving expense. The tribunal found in particular that if Mr Uzvalakas was unable to continue to interpret then there would be an additional cost involved in abandoning the proceedings and engaging a substitute interpreter in fresh proceedings with a consequent delay in disposal of the case.
Ms Krchrene apologised and left without objection. Mr Uzvalakas agreed to continue to discharge his duties as interpreter to the tribunal.
The Issues:
2. In circumstances where it is agreed that the claimant was dismissed by the respondent the issues for this tribunal are:-
(i) What was the reason for the dismissal and was that reason potentially fair within the meaning of Article 130 of the Employment Rights (Northern Ireland) Order 1996 [the Order]?
(ii) If the claimant was dismissed for a fair reason was that dismissal fair in all the circumstances of the case and the relevant law?
(iii) In circumstances where it is conceded by the respondent that the statutory procedures were not followed, would the respondent have decided to dismiss the claimant even if they were followed?
(iv) What procedures if any were followed by the respondent?
(v) If the claimant was unfairly dismissed what compensation, if any, should be awarded to her?
Sources of Evidence
3. The tribunal considered the claim form, the response, the sworn testimony of Mr John McArdle and the affirmed testimony of Ms Leila Kraslena for the respondent, the affirmed testimony of the claimant and of Ms Christina Kandotriene together with the sworn testimony of Mr Eugeni Jus Vasiliauskas for the claimant and the submissions of both parties.
Findings of relevant fact
4. The respondent operates the business of a mushroom farm employing in or around 11 employees to include 8 mushroom pickers. The business is currently owned by Mr Liam McArdle and has been in operation some 30 years.
5. The claimant who is Lithuanian was employed by the respondent as a mushroom picker from 19 November 2007 until her dismissal on the 4 December 2009. On dates relevant to these proceedings the claimant’s daughter Christina also worked for the respondent.
6. The claimant was earning £181.57 weekly gross pay and £162.31 weekly net pay.
7. The tribunal have not had sight of the claimant’s contract of employment and have heard no evidence of the existence or application of any grievance procedure or of any disciplinary or dismissal procedures.
8. On the 14 November 2009 the claimant was involved in an altercation at work in the course of which she was stabbed with a knife by a co worker by the name of Reni. The claimant was injured and bleeding following the incident. The tribunal did not hear from anybody who witnessed the incident. The tribunal did hear from the claimant’s daughter Christina who heard raised voices but did not see what happened. Ms Leila Kraslena who was a supervisor in the mushroom house also gave evidence but, not having witnessed the incident, was not in a position to contradict the claimant’s evidence.
9. It is the claimant’s evidence that she was attacked by Reni without provocation. In circumstances where there is no compelling evidence to contradict the claimant in this regard and where the claimant presents as a credible witness the tribunal accept her evidence.
10. It is the respondent’s case, as expressed in it’s response to the proceedings and stated in Mr John McArdle’s testimony, that he [John McArdle] believed that the claimant had previously been involved in altercations with co workers. This is denied by the claimant. Mr McArdle did not give evidence of having witnessed any such incidents or produce records of such incidents. In circumstances where it was open to the respondent to call witnesses or to produce corroborating records and they failed to and do so and against a background where the claimant presents as a credible witness and denies it to be the case, the tribunal accept the evidence of the claimant.
11. On the date of the incident between the claimant and Reni which led to the dismissal of the claimant, Mr John McArdle was on holiday. He heard of the incident by way of a telephone call from his sister Ciara McArdle who also worked for the respondent. It was his understanding that Ms McArdle sent Reni home and enquired of the claimant as to whether she had any means of getting home. The tribunal did not hear from Ms McArdle.
12. It is common case that the claimant was badly injured during the incident. The tribunal find that nobody within the respondent organisation offered her any assistance or contacted the Police. The claimant’s daughter contacted Mr Vasiliauskas, a family friend, who arrived to take her for medical assistance. He was accompanied by another man. It is the respondent’s case that Mr Vasiliauskas and his friend arrived to seek out Reni to exact revenge and that co workers of the claimant were frightened as a result. This is denied by Mr Vasiliauskas whose sworn testimony is not contradicted by any direct evidence called by the respondent [Mr McArdle was not present at the time of the incident and those who were present were not called to give evidence]. In these circumstances the tribunal accept Mr Vasiliaukas denial of events.
13. In the alternative even if the tribunal were to accept that Mr Vasiliauskas behaved in a threatening manner as alleged there is no evidence that the claimant played any part whatsoever in this.
14. On his return from holiday Mr John McArdle investigated the incident. He interviewed Ms Ciara McArdle, Mr Liam McArdle, and asked Mr Liam McArdle to speak to Laila, the supervisor, at the time of the incident and to Reni’s husband, Mani, who also worked for the respondent. The tribunal find from the evidence that these interviews were informal in nature, notes were taken but not retained and some of the interviews were conducted outside of the canteen. Neither the claimant nor her daughter were interviewed. The tribunal find it surprising that the claimant's daughter was not interviewed in circumstances where Reni's husband Mani was. There is no evidence before the tribunal to suggest that Mani witnessed the incident.
15. Reni was not interviewed, the tribunal have no evidence of what emerged from the interview with Mr Liam McArdle, and the tribunal have not had the benefit of hearing evidence from Ms Ciara McArdle, from anybody who witnessed the incident or anybody who witnessed what transpired afterwards. The tribunal have not heard from Mr Liam McArdle who carried out interviews as part of the investigation and who was involved in the decision to dismiss. Neither did it hear from Reni or her husband. In particular the tribunal have no evidence in relation to the arrival on the scene of Mr Vasiliauskas and his friend which is surprising in circumstances where it is alleged that they were threatening in their behaviour to an extent that co workers felt threatened and when, according to the response entered by the respondent, their behaviour contributed to the dismissal of the claimant.
16. On the day after the incident the claimant called to her workplace and spoke to Liam McArdle. She was not informed of any investigation or of any possibility of disciplinary procedures being followed.
17. On two separate occasions following the incident the claimant called to her workplace to submit sick lines and was given no indication that an investigation was ongoing or that disciplinary action was being contemplated.
18. On the day immediately prior to the claimant returning to work she received a letter dated the 4 December 2009 in the following terms:-
“Following the unacceptable events of 14 November 2009, I write to inform you that your services are no longer required”.
19. The tribunal find that following the interviews conducted by Mr Liam McArdle and Mr John McArdle a decision was taken to dismiss the claimant.The claimant was afforded no opportunity to respond to allegations made against her and was given no opportunity to appeal the decision to dismiss. She was dismissed by means of the letter dated 4 December 2009 and the tribunal find that the 4 December 2009 was the effective date of dismissal.
20. Following her dismissal the Tribunal find that the claimant made reasonable efforts to secure alternative employment. She found alternative employment on 12 April 2010 on comparable rates of pay. Between 4 December 2009 and 12 April 2010 the claimant claimed and received Job Seekers Allowance in the sum of £64.30 weekly
The Law
21. Article 126 of the Employment Rights (Northern Ireland) Order 1996 [the Order] provides the claimant with the right not to be unfairly dismissed.
22. Article 130 of the Order in so far as is relevant to this case provides as follows:-
130. (1) In determining for the purposes of this Part 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.
(2) A reason falls within this paragraph if it:-
(a) ……..
(b) relates to the conduct of the employee,
(c) …….
(3) ………
23. The tribunal find that the claimant was dismissed for a reason relating to her conduct which is a potentially fair reason within the meaning of Article 130 of the Order.
24. Article 130A of the Order provides:-
(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if:-
(a) 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,
(b) the procedure has not been completed, and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.
It is common case that the statutory procedures were not followed and so the tribunal find that the dismissal of the claimant was automatically unfair. Having found that to be the case the tribunal must now consider the provisions of Article 130 (2).
25. The onus is on the respondent to satisfy the tribunal that the claimant would have been dismissed even if the statutory procedures were followed.
26. The tribunal find that the claimant was involved in an altercation with a co worker. However the tribunal have been presented with no evidence to suggest that the claimant was the instigator of the altercation or that she provoked her co worker in any way. The tribunal has not heard from any witnesses to the altercation in circumstances where the Tribunal consider it likely that somebody must have witnessed events. Furthermore the tribunal has not been presented with compelling evidence to satisfy itself that the claimant was previously involved in similar incidents. It is common case that the claimant was seriously wounded; there is no evidence that her assailant suffered any injuries. In the absence of evidence as to what exactly happened and in circumstances where it is the claimant's compelling evidence that she was an innocent party, the tribunal are not satisfied that the respondent would have decided to dismiss if the procedures were followed. Had the proper procedures been followed a true record of events would more likely than not have emerged and according to the evidence before the tribunal it is possible that the claimant would have emerged as an innocent party and not been dismissed.
27. Notwithstanding the finding that the dismissal of the claimant was automatically unfair in accordance with Article 130 of the Order, the tribunal has considered whether in the alternative the dismissal was fair or unfair in accordance with Article 130(4) of the Order. Article 130(4) states that where the employer has fulfilled the requirements of subsection (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 administration of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employer, and
(b) shall be determined in accordance with the equity and substantial merits of the case.
28. The Tribunal found the following case law of assistance in considering their decision on this point:-
British Home Stores v Burchell [1980] ICR 303, Gerard Dobbin v Citybus Limited [2008] NICA 42 and Patrick Joseph Rogan v South Eastern Health and Social Care Trust [NICA].
29. The tribunal also considered Harvey D1 Unfair Dismissal Part 7 [Para 951 onwards].
30. The tribunal find the observations of Arnold J in British Homes Stores v Burchell of assistance where in the context of a misconduct case he stated:-
“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question … entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”
31. The tribunal find that the investigation carried out in this case was inadequate. In particular neither the claimant nor Reni were interviewed. The tribunal have no evidence to suggest that any witness to the actual incident were interviewed or approached for interview. The tribunal have no compelling evidence as to what occurred when friends of the claimant arrived on the scene or that the claimant had any involvement in what allegedly transpired upon their arrival. The tribunal have been presented with no compelling evidence of a history of such incidents involving the claimant or of any injuries sustained by Reni on this occasion. In these circumstances it has not been established before this tribunal that the respondent had reasonable grounds upon which to sustain the belief that the claimant had been guilty of misconduct or that that misconduct amounted to a sufficient reason for dismissal.
32. In all the circumstances of this case the Tribunal find that the claimant was unfairly dismissed.
Compensation
33. The tribunal have calculated compensation in accordance with Articles 152 to 158A of the Order and Article 17 of the Employment Rights (Northern Ireland) Order 2003 Order as follows:-
The basic award
Article 153 of the Order sets out the formula by which such basic award is to be calculated.
The basic award in this case according to this formula is:-
Two full years of employment [19/11/2007 - 4/12/2009] at £181.57
gross per week = £363.14
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 claimant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer".
The claimant was dismissed on the 4 December 2009 and found alternative employment on 12 April 2010 on comparable rates of pay. In these circumstances the tribunal awards the claimant compensation at the rate of her weekly pay x the number of weeks from 4 December 2009 up until the
12 April 2010
18 weeks x [net pay] £162.31 = £2,921.58
Compensation for loss of statutory rights = £250.00
Total Compensatory award: £3,171.58
Reductions
34. The Law
Article 156 (2) of the Employment Rights (Northern Ireland) 1996 Order [the Order] provides that:-
"Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly."
The tribunal have considered this provision carefully and in circumstances where for reasons stated above the tribunal is not satisfied that the respondent has established a genuine belief on reasonable grounds that the claimant was culpable in relation to the altercation between Reni and herself which led to her dismissal, the tribunal make no reduction under this heading.
Article 157 (6) of the Order provides that:-
"Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."
For reasons given above the tribunal find that it would not be just and equitable to reduce the amount of the compensatory award.
35. The tribunal have considered the effect of failure to follow the statutory procedures on the amount of the award in accordance with Article 17 (3) of the Employment (Northern Ireland) Order 2003 which provides as follows:-
(3) If, in the case of proceedings to which this Article applies, it appears to the industrial tribunal that –
(a) the claim to which the proceedings relate concerns a matter, to which one of the statutory procedures applies,
(b) the statutory procedure was not completed before the proceedings were begun, and
(c) the non-completion of the statutory procedure was wholly or mainly attributable to failure by the employer to comply with a requirement of the procedure,
it shall, subject to Paragraph (4), increase any award which it makes to the employee by 10% and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50%.
(4) The duty under Paragraph (2) or (3) to make a reduction or increase of 10% does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances.
Article 17(3) applies here and the tribunal award the claimant a percentage uplift of 20% on the grounds that no attempt was made by the respondent to initiate or follow the statutory procedures. The Respondent is a small employer but has been in existence for over 30 years. The Tribunal have been presented with no evidence as to why the statutory procedures were neither initiated nor followed. The tribunal have considered the provisions of Article 17(4) and find that it does not apply in this case due to the lack of any evidence of any exceptional circumstances.
Compensatory Award £3,171.58 x 20% = £634.31
+ £3,171.58
= £3,805.90
36. Rule 4(3) of the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996 apply to this award as set out in the Statement annexed which forms part of this decision.
37. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 29 June 2010, Belfast
Date decision recorded in register and issued to parties:
Case Ref No: 418/10
CLAIMANT: Jelena Kandeortiene
RESPONDENT: McArdle Mushrooms
ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT
1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.
|
|
£ |
|
(a) Monetary award |
4,169.04 |
|
(b) Prescribed element |
2,921.58 |
|
(c) Period to which (b) relates: |
4/12/2009 – 12/04/10 |
|
(d) Excess of (a) over (b) |
1,247.46 |
The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Health and Social Services has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.
2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
3. The claimant will receive a copy of the recoupment notice and should inform the Department of Health and Social Services in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.