Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/06054_09IT.html
Cite as: [2010] NIIT 06054_09IT, [2010] NIIT 6054_9IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 06054/09

CLAIMANT: Michael McCoy

RESPONDENT: Mourne Glass

DECISION

The unanimous decision of the tribunal is that the respondent shall pay the claimant holiday pay of £327.60. The tribunal dismisses the claimant’s claims of breach of duty to give a written statement of employment particulars and unfair dismissal.

Constitution of Tribunal:

Chairman: Ms Bell

Panel Members: Mr Huston

Mrs Heaney

Appearances:

The claimant was not present and was not represented.

The respondent appeared in person.

THE CLAIM AND RESPONSE

1. The claimant complained in his claim that his dismissal was unfair due to unfairness and omissions in procedures followed by the respondent, that the respondent was in breach of his duty to give the claimant a written statement of employment particulars and that he was due seven day’s holiday pay.

2. The respondent in his response denied the claimant’s claims of unfair dismissal and breach of duty to give a written statement of employment particulars, but confirmed at hearing that seven day’s holiday pay was due and would be paid by him to the claimant.

ISSUES

3. The issues for the tribunal were as follows:-

(i) Has the claimant proved that his dismissal was automatically unfair?

(ii) Has the respondent shown the reason for dismissal?

(iii) Is the reason shown a potentially fair one?

(iv) Was the dismissal procedurally fair?

(v) Was the dismissal within the range of reasonable responses?

(vi) Has the respondent breached his duty to give a written statement of employment particulars to the claimant?

EVIDENCE

4. The tribunal considered the claim, response, bundle of documents provided by the respondent including a dated statement of main terms and conditions of employment and heard oral evidence from the respondent.

FINDINGS OF FACT

5. The claimant was employed by the respondent as a glazier from 5 March 2007 until 3 March 2009 and received pay of £234 net per week.

6. On 4 April 2007 the respondent’s secretary gave the claimant a statement of main terms and conditions of employment, which included therein at Appendix 2 the Disciplinary Rules and Procedure applicable to his employment. The statement outlines examples of conduct categorised as gross misconduct, including “leaving the premises or site without permission” and “refusal to carry out a reasonable work instruction”, and states “if you have committed an offence which is regarded as gross misconduct and management is satisfied after investigation that it has occurred, you will be dismissed summarily.”

7. The respondent employed a three man team to carry out glazing work. When the weather was bad it was the respondent’s practice to alternately keep one of his two junior employees in the store to do preparatory work for the next day, his foreman being the only one of three employees insured to drive the respondent’s work van.

8. On Friday 27 February 2009 the respondent instructed the claimant to remain at the work premises to work in the store alongside the respondent.

9. Around 9.45 am on 27 February 2009 the claimant left the respondent working in the store and went to take his tea break, he however left the premises and did not return. The respondent assumed that the claimant had gone to the shop but when he did not come back the respondent tried to ring him without success, he then sent the claimant a text message asking where he was as he was waiting on him. The claimant subsequently replied to the respondent’s text stating that he could not stay in the store any more.

10. On Monday 2 March 2009 the claimant came in to work and again expressed to the respondent that he was not prepared to work in the store.

11. In response the respondent gave the claimant a letter on 2 March 2009 requiring him to attend a disciplinary hearing the next day to consider the question of disciplinary action against him in accordance with the company’s disciplinary procedure with regard to his unauthorised absence on 27 February 2009, the letter advised the claimant as per the stated terms and conditions of his employment a fellow employee could accompany him if he wished.

12. On 3 March 2009 the claimant, Shane Harper the respondent’s foreman, and the respondent met, the respondent sought an explanation from the claimant as to why he had left work and had not let the respondent know. The claimant apologised to the respondent that he had “gone off the rails” and indicated that he had personal problems.

13. Following the meeting the respondent considered the matter and decided to dismiss the claimant. By letter dated 3 March 2009 the respondent confirmed to the claimant following informing him on 2 March 2009 that he was considering taking disciplinary action against him, and their meeting that morning, it had been decided to dismiss him as of 3 March 2009 because he had left the premises without permission and refused to carry out a reasonable work instruction. The respondent informed the claimant of his right of appeal.

14. The claimant subsequently wrote to the respondent seeking an appeal to which the respondent replied on 11 March 2009 arranging for an appeal hearing to take place on 16 March 2009. The respondent requested by letter dated 14 March 2009 a re-arranged appeal date as he had arranged work to coincide with that day. The respondent confirmed by letter dated 16 March 2009 that the appeal hearing would instead take place on 23 March 2009. The claimant did not attend the appeal hearing. The respondent considered the claimant’s appeal correspondence but was not persuaded to change his decision to dismiss.

THE LAW

15. Schedule 1 of the Employment (Northern Ireland) Order 2003 sets out the standard three step procedure to be followed by an employer contemplating dismissal and disciplinary procedures which includes at Step 1, a statement of grounds for action and invitation to a meeting, at Step 2, a meeting, and at Step 3, an appeal.

16. Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer.

17. Under Article 130(1) of the 1996 Order, in determining whether the dismissal is fair or unfair it is for the employer to show the reason for dismissal and that it is either a reason set out at 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. Reasons set out at paragraph (2b) include a reason which relates to the conduct of the employee.

18. Where the employer has fulfilled the requirements of paragraph (1) the determination of the question whether the dismissal is fair or unfair (having regard to the reasons 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 substantial merits of the case.

19. Under Article 130A(1) of the 1996 Order an employee who is dismissed shall be regarded for the purposes of this part as unfairly dismissed if one of the procedures set out in Part 1 of Schedule 1 to the 2003 Order (Dismissal and Disciplinary Procedures) applies in relation to the dismissal, the procedure has not been completed, and, the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

20. Under Article 27 of the 2003 Order if when proceedings are begun an employer is in breach of the duty to give a written statement of employment particulars a tribunal shall make an award as set out therein.

APPLICATION OF LAW TO FACTS

21. The tribunal found the respondent’s evidence credible and is persuaded by his oral evidence supported by the documentation produced that the claimant received a written statement of terms and conditions of employment, that the respondent followed an appropriate disciplinary and dismissal procedure in compliance with the three step statutory minimum procedure required, and that the claimant has not proved that his dismissal was automatically unfair for a contravention thereof.

22. The tribunal is satisfied that the respondent has shown gross misconduct was the reason for the claimant’s dismissal, that this is a potentially fair reason, that the respondent followed a fair procedure in view of the size and administrative resources of his business, the respondent being a small employer, and that whilst the decision to dismiss was clearly the most extreme disciplinary sanction available to him, the tribunal find that the decision of the respondent to dismiss the claimant in the circumstances is not beyond the range of reasonable responses which a reasonable employer may have adopted in this case. The tribunal is satisfied that the claimant is entitled to seven day’s holiday pay as acknowledged by the respondent at hearing.

23. The tribunal accordingly dismisses the claimant’s claims of breach of duty to give a written statement of employment particulars and unfair dismissal and orders that the respondent pay the claimant seven day’s outstanding holiday pay.

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

Chairman:

Date and place of hearing: 1 December 2009, Belfast.

Date decision recorded in register and issued to parties:

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