Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

 

                                                           CASE REF:    5775/09

CLAIMANT:              Brian Walker  

RESPONDENT:        Tinnelly Transport Ltd                                                                                                                      

 

 

DECISION

The unanimous decision of the Tribunal is that the claimant was unfairly dismissed by the respondent and the Tribunal orders as follows:-

(i)     The claimant shall be reinstated  from 1 February 2010 as agreed by the

        parties at hearing.

      

(ii)    The respondent shall pay to the claimant the sum of £6,194.00 in respect of financial loss which the claimant might have had but for the dismissal. 

 

 

 

Constitution of Tribunal:

Chairman :              Mrs A Wilson

Panel Members:      Mr A Henry

                                Mr R Lowden

 

Appearances:

The claimant was represented by Mr R Lavery, Barrister-at-Law, instructed by Diane M Coulter, Solicitors.

The respondent was represented by Mr Kevin Tinnelly of the respondent company.

Sources of Evidence

 

1.          The Tribunal considered the claim form, the response, documents

handed in and referred to by the parties during the course of the proceedings and the oral testimony of the claimant and of Mr John Smith, Mr Seamus McEvoy and Mr Tinnelly for the respondent.

 

 

The Issues

2.     Was the claimant dismissed by the respondent?

3.     If the claimant was dismissed:-

 

(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?

 

        (ii)    If the claimant was dismissed for a fair reason was that dismissal fair in all the circumstances of the case and the applicable law?

        (iii)    If the claimant was dismissed what was the effective date of termination?

(iv)       If the claimant was unfairly dismissed what compensation, if any, should be awarded to him?

 

(v)    If the claimant was unfairly dismissed should an order for reinstatement or re-engagement be made?

 

 

 

Findings of relevant fact:-

4.       The claimant commenced employment as a lorry  driver with Tinnelly

        International Transport Limited on 15 September 2006.

 

5.          The claimant did not receive a written contract of employment but the

Tribunal is satisfied in reliance on the claimant's evidence that it was a condition of his contract that he travelled  to Scotland, England and throughout Ireland. The practice was however that he did not travel to London or indeed South of Birmingham. It is common case that the claimant preferred not to work in these areas as he was unfamiliar with them and there were other drivers available to cover these areas. In contrast he knew the North of England and Scotland very well. It was also agreed that, unlike his colleagues, the claimant was not required to travel on Sunday nights and commenced work on Monday mornings instead.

 

6.     In or around February 2009, an administrator was appointed to Tinnelly International Transport Limited  and on 20  February 2009 in or around 60 employees were made redundant. Another 40 to 45 employees were transferred to the respondent under The Transfer of Undertakings (Protection of Employment) Regulations 2006.

 

7.     It is common case that the claimant's contract of employment transferred. However on the respondent's own admission this transfer occurred due to an oversight on the part of the respondent and it is also common case that the claimant worked for the respondent for a short period following the transfer.

8.     It had not been the intention of the respondent to take over the claimant's contract of employment because it perceived him to be less flexible than other workers. The respondent was aware that the claimant preferred not to work South of Birmingham or to travel on Sunday nights and it is the respondent’s case that the claimant refused to do so. At this time [February 2009] business was slow. Work in Ireland and Scotland had dried up and the respondent required all workers  to be flexible,  willing to carry out any work on offer and travel on Sunday night.

 

9.     The Tribunal have no evidence that the claimant ever refused to work South of Birmingham or to travel on Sunday nights but it is common case that he preferred not to do so.  However the Tribunal are satisfied based on the evidence of the claimant that whereas he preferred not to work in these areas or  to travel on Sunday nights, he was willing to do so particularly in circumstances where his job depended on it.

 

10.   The claimant was summarily dismissed by the respondent on 4 March 2009 in the course of a telephone conversation with the transport manager Mr Seamus McEvoy when Mr McEvoy told him that there was no work in Ireland. The Tribunal have no evidence to suggest that the claimant was asked by Mr McEvoy or by anybody prior to dismissal whether he was prepared to alter his working pattern or travel south of Birmingham. At the time of dismissal the claimant was due the sum of £480.00 representing his last weeks pay.  This included an element of expenses.  The Tribunal find in reliance on the claim form and the response that the claimant's net weekly pay was £400.00.

 

11.   It is common case that no disciplinary or dismissal procedures, statutory or otherwise were followed.

 

12.    The Tribunal find that the reason for the dismissal was an incorrect assumption on the part of the respondent that the claimant was not prepared to work South of Birmingham or to travel on Sunday night.

13.   The claimant instructed Solicitors who corresponded with the respondent on  12 March 2009 in the following terms:-

 

     "….. you purported to terminate his employment on Wednesday 4 March         2009 stating that you had no work in Ireland. Our client does not accept this and furthermore has done runs in England/Wales for you and there is no reason to limit his work to Ireland."

         The letter goes on to claim unfair selection for redundancy, redundancy pay and pay in lieu of notice.

 

14.         Following this letter the claimant received a cheque in the sum of £440.00 dated 13 March 2009 from the respondent. The cheque was received by post in a plain envelope together with the claimant's P45 but was  otherwise unaccompanied.

 

15.     Following a further letter from the claimant's solicitors querying detail on the P45 and the amount of the cheque, the respondent replied by letter of the 23 March 2009 in the following terms:-

 

 "As for the comment you have made about Mr Walker being able to work in England again we are delighted to learn that Mr Walker has now decided to work in England. As when he was employed by Tinnelly International Transport Ltd Mr Walker would only work in Scotland and parts of Northern England. He refused to work below Birmingham and also refused to go out on a Sunday afternoon boat like the other 20 drivers who do this on a weekly basis. Mr Walker always insisted to go out on the Monday 7am boat. 

If the situation is that Mr Walker now wants to work throughout the UK, we can offer Mr Walker a position and like all the other UK drivers he goes out on the 5pm boat on a Sunday and returns Friday afternoon -Saturday morning".

 

16.   The Tribunal regard this letter as an offer of reinstatement and there is no dispute between the parties on the point. However there were subsequent attempts by the claimant to follow up on this offer without success leading to the claimant forming the opinion that the offer was not genuine. By way of example the claimant contacted Mr McEvoy by telephone on 27 March 2009 to enquire as to the rate of pay being offered and  Mr McEvoy indicated that he was not aware of the position in relation to pay. However the offer of reinstatement was reiterated by letter of 8 April 2009 from the respondent to the claimant's solicitor and it remains the case that the respondent is willing to reinstate the claimant forthwith and that the claimant wishes to be reinstated.

 

17.   The claimant applied for Jobseekers Allowance on 21 March 2009 and was initially entitled to the sum of £60.50 per week and after 17 April to the sum of £64.30. In the period to 2 June 2009 the claimant received the sum of £532.23 in Jobseekers Allowance.

 

18.   On 2 June 2009 the claimant started work as a lorry driver with Mr Alistair McGuigan. This work continued until in or around 31 December 2009 and the claimant's average weekly pay calculated in accordance with Chapter IV of the Employment Rights (Northern Ireland) Order 1996 amounted to £306.00. On this basis the claimant worked 31 weeks earning £306 per week amounting to a total of £9,486.00 in this period.

 

19.   Following the termination of this period of employment the claimant applied for Jobseekers Allowance but before it came through received employment with a company Re Gen transporting waste. The claimant worked with this company for in or around four weeks earning in or around £480.00 per week amounting to a total of £1,920.00.

 

20.   The claimant's total income following the termination of his employment with the respondent until the date of the hearing amounts to £11,406.00 calculated as follows:-

        £9,486.00 Income from Alastair McGuigan.

        £1,920.00 Income from Re Gen.

        Total =  £11,406.00.

21.   Had the claimant remained in the employment of the respondent during this period his earnings would have amounted to £17,600.00 [44 weeks x £400.00 net weekly pay]. As a consequence the claimant has suffered a financial loss in the sum of £6,194.00.

 

 

The Law

22.   Article 126 of the Employment Rights (Northern Ireland) Order 1996 [the Order] provides the claimant with the right not to be unfairly dismissed.

 

23.   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)    relates to the capability or qualifications of the employee for         performing work of the kind which he was employed by the         employer to do,

 

                (b)    relates to the conduct of the employee,

 

                (c)    is that the employee was redundant, or

 

        (d)    is that the employee could not continue to work in the position         which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under a      statutory provision.

 

24.   Having found that the dismissal occurred because of an incorrect assumption on the part of the respondent that the claimant was not willing to work South of Birmingham or to travel on Sunday nights, the Tribunal find that the dismissal was unfair as it did not fall within one of the potentially fair reasons within the meaning of Article 130 of the Order.

  

25.   Furthermore under Article 130A of the Order an employee is regarded as automatically unfairly dismissed if the statutory dismissal and disciplinary procedures have not been followed due to the employer’s failure.

 

26.   The statutory procedures are contained in the Employment (Northern Ireland) Order 2003 ['the 2003 Order'], and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004.  This legislation provides that an employer must follow a minimum procedure when disciplining or dismissing an employee.  In a case of summary dismissal the modified procedure applies.  The modified procedure requires that, having summarily dismissed the employee, the employer must write to the employee to set out the reasons for dismissal and must advise the employee of his right to appeal.  If the right to appeal is exercised there must be a meeting and the outcome of that appeal must be communicated to the employee.  No procedures whatsoever were followed in this case.

 

27.   If the employer fails to follow the statutory procedure, the tribunal must make a finding of unfair dismissal and if an award of compensation is to be made comply with the provisions of Article 146(5) of the Order which provides for uplift in the amount of compensation awarded.

 

28.   There was no attempt by the respondent to observe the statutory procedures and in these circumstances the provisions of Article 130A apply so as to make this an automatically unfair dismissal.

 

29.   Article 146 of the Order applies where a tribunal as in this case find that the claimant was unfairly dismissed. The provisions in so far as is relevant to this case are as follows:-

  146.—(1)  This Article applies where, on a complaint under Article 145, an industrial tribunal finds that the grounds of the complaint are well-founded.

                 (2)  The tribunal shall—

 

            (a)        explain to the complainant what orders may be made under Article 147 and in what circumstances they may be made,       and

                             (b)       ask him whether he wishes the tribunal to make such an order.

 

                (3)    if the complainant expresses such a wish, the tribunal may make an order under Article 147.

30.   The Tribunal explained that the Orders possible under Article 147 include orders for reinstatement or re engagement and further explained the circumstances in which they may be made following which the claimant confirmed that he wished for an Order for reinstatement.  The respondent agreed to reinstate the claimant in accordance with the provisions of Article 148 of the Order and agreed that reinstatement would be immediate. In these circumstances no order for compensation falls to be made and so the provisions of Article 146(5) of the order as referred to at paragraph 26 above do not apply.

31.   Article 148 provides as follows:-

   148.—(1)  An order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed.

 

                       (2)  an order for reinstatement the tribunal shall specify—

                   (a)   any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of reinstatement,

                            (b)    any rights and privileges (including seniority and   pension rights) which must be restored to the employee, and

                            (c)    the date by which the order must be complied with.

                        (3)  ....

(4) In calculating for the purposes of paragraph (2)(a) any amount payable by the employer, the tribunal shall take into account, so as to reduce the employer's liability, any sums received by the complainant in respect of the period between the date of termination of employment and the date of reinstatement by way of—

 

                            (a)    wages in lieu of notice or ex gratia payments paid by            the employer, or

 

                                  (b) remuneration paid in respect of employment with    another employer, and such other benefits as the       tribunal thinks appropriate in the circumstances.

 

 32.  The Tribunal order that the claimant be reinstated in accordance with Article 148 of the Order in the following terms:-

 

The claimant be reinstated from 2 February 2009 being the date of this hearing as agreed between the parties at hearing.

The sum of £6,194.00 be paid by the respondent to the claimant representing the loss sustained by the claimant between the date of dismissal and the date of hearing by reason of the disparity in earnings during that period.

 

33.   The Tribunal have no evidence that the claimant suffered any other loss of rights or benefits as a result of his dismissal.

 

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

 

 

 

 

 

 

 

 

Chairman:

Date and place of hearing:  1–2 February 2010, Belfast.

Date decision recorded in register and issued to parties: