Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   7081/09

 

 

 

CLAIMANT:                      JONATHAN TAYLOR

 

 

RESPONDENT:                CENSYS LTD

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent on 13 August 2009. The respondent did not follow the statutory Dispute Resolution Procedure. The claimant is entitled to the statutory minimum award of 4 weeks wages. The claimant’s contribution to his dismissal is assessed at 100%.  

 

 

 

Constitution of Tribunal:

 

 

Chairman:    Mrs M. Watson     

 

 

Members:    Mr S. Adair

                     Mr W. Irwin

 

 

Appearances

 

The claimant was represented by Mr Mark Reid of Kelly & Corr, Solicitors.                      The respondent was represented by Mr Declan O’Donnell, Managing Director.

 

The claim and response

 

1.     The claimant claimed that he had been unfairly dismissed by Mr O’Donnell on behalf of his employers, when he was dismissed from his employment in the respondent company’s Call Centre on 10 August 2009. The respondent claimed that the claimant had not attended work when instructed to do so on 10 August 2009. He did not attend until 13 August 2009 at which time he was dismissed on grounds of gross misconduct.

 

Sources of evidence

 

2.       The claimant and Mr O’Donnell, on behalf of the respondent, both gave oral evidence and both produced documentary evidence. The claimant did not agree the respondent’s documentation relating to his attendance, but these were provided to the tribunal for its assistance without objection. Where there was conflict between the evidence of the claimant and the respondent, the tribunal preferred the evidence of the respondent whose evidence was consistent, supported by documentation and was more credible on the balance of probabilities, than that of the claimant.
 

Findings of Fact

 

3.       The respondent company operates a Call Centre which has been in operation for some eight years generating telesales leads, primarily for the financial services industry. This is a very competitive industry requiring tight budgetary controls and strict deadlines in order to meet customer demands. 

 

4.       The claimant began work for the respondent as a Telesales Operator in or about April 2008 until his dismissal in August 2009. He had been a satisfactory employee whose standard of work was good but whose attendance had caused concern.  

5.       The tribunal was satisfied that the claimant had taken days off at short notice on several occasions after getting approval from Mr O’Donnell. The respondent’s documentation provided to the tribunal showed eight days off in 2008 and eleven days in 2009. The claimant denied any such absences but in answer to questions from the tribunal, he was able to remember several such instances and the reasons. The tribunal also noted that the claimant’s payslips matched the respondent’s records as he had not been paid for the days so recorded.

 

6.       The respondent did not provide documentary evidence to the tribunal of its policies and procedures. Mr O’Donnell assured the tribunal that employees were provided with Terms and Conditions and Disciplinary and Grievance Procedures (including absence reporting). He had not brought this documentation as he did not know they were needed. Since he was not legally represented, the tribunal made no finding on this issue.

 

7.       The claimant accepted that it was common knowledge in the company that when an employee could not attend for a shift, it was necessary to telephone Mr O’Donnell who would advise whether the absence was authorised or not. Employees were not paid for these absences.

 

8.       On Monday 10 August 2009, the claimant telephoned Mr O’Donnell and informed him that he would not be there for his shift that day which was to begin at
1.30 p.m. The claimant told Mr O’Donnell that his landlord was selling the house that he rented with his wife and he needed to secure alternative accommodation. Mr O’Donnell told the claimant that he did not consider this matter to be urgent and that he expected the claimant to come in for his shift as expected.

 

9.       The claimant sent a text message to the respondent to say that he would not attend that day. In reply, Mr O’Donnell sent the claimant the following text message:

“If u r not in 2day at 1.30 we’ll be OK every other day without u. The choice is yours Declan”

 

10.     The claimant’s evidence was that he considered this to be a dismissal but the tribunal does not so find.  The tribunal found it was more likely on the balance of probabilities that the claimant was exercising the choice that he had been given and had decided that he was not going to return to work. The tribunal was provided with a document from the Social Security Agency which recorded that the claimant had registered as unemployed from 10 August 2009 and claimed Job Seekers Allowance from that date.

 

11.     The tribunal was not persuaded by the reason given by the claimant for the urgency of his request for absence that day. The claimant told the tribunal that his landlord wanted to increase the rent by £100 per month. If the claimant did not agree to this increase by 5.00 p.m. that day, he was to vacate the premises as the landlord had another tenant who was willing to pay the extra. This was in spite of the fact that the claimant had paid a month’s rent in advance less than a week before. In the event, the claimant had decided that he would pay the extra amount and was still living at the same address at the date of the hearing.

 

12.     The following day, the claimant spoke with his father who advised him to take advice from a solicitor, which he did the next day. Acting on the solicitor’s advice, the claimant went to the respondent’s premises on 13 August 2009 and asked if his job was still available.  Mr O’Donnell told the claimant that he had not attended work when requested to do so on Monday, he had been absent on the next two days, and he had had several other absences during his employment. In his view, this amounted to gross misconduct and he informed the claimant that he was dismissed.
 

13.     The claimant wrote to the respondent on 14 August 2009 asking for the reason for his dismissal, his P.45 and outstanding monies. The letter also claimed that the dismissal was unfair and in breach of his contract. No request was made for an appeal hearing.

 

14.     The respondent’s letter in reply is dated 28 August 2009. This confirms the decision to dismiss of 13 August 2009 and gives the reason as the claimant’s “unacceptable absence on several occasions and your failure to follow the correct reporting procedure.”  The letter then refers to the refusal of the request for leave on

          10 August 2009, and the claimant’s failure to attend work that day or on the following two days. Payment of the outstanding monies was included with the letter.

15.     The respondent’s letter did not offer to meet the claimant or offer any appeal against the decision to dismiss. 

 

 

 

 

 

 

Relevant Legal Provisions

 

16.     The law relating to unfair dismissal is contained in the Employment Rights (Northern Ireland) Order 1996 (as amended) (ERO).

 

17.     Article 127 provides that an employee has the right not to be unfairly dismissed. Article 130(1) provides that it is for the employer to show the reason for the dismissal. For this to be considered a fair reason for dismissal, it must be one of the reasons set out at Article 130(2). The way a tribunal should determine whether a dismissal is fair or unfair and those matters, including the size and administrative resources of the employer, to which the tribunal should have regard, are set out at Article 130(4).

 

18.     The Employment (Northern Ireland) Order 2003, inserted into the ERO in a new Article 130A, provides that where an employer fails to follow the Dispute Resolution Procedures contained in the Schedule to the 2003 Order, the employee is deemed to be  automatically unfairly dismissed. 

 

19.     Article 154(1A) of the ERO provides that where the employee is automatically unfairly dismissed, there should be a minimum award of four weeks’ pay.

20.     Article 17(3) of the 2003 Order also contains a provision in relation to the compensation payable. Where the failure to comply with the statutory procedures was wholly or mainly attributable to failure by the employer, the tribunal shall increase any award payable to the employee by at least 10% and up to 50%.
 

21.     Article 17(4) states that this duty to make a reduction or increase the award, 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.’

22.     The tribunal also took into consideration the guidance provided in relation to the proper approach to be taken when deciding whether an employer has acted reasonably in deciding to dismiss an employee. This is contained in the case of Iceland Frozen Foods v Jones [1983] ICR 17:

(i)              The starting point should always be the words of the statute.

(ii)             In applying the statute, the tribunal must consider the reasonableness of the employer’s conduct and not simply whether or not they consider the dismissal to be fair.

 

(iii)            In judging the reasonableness of the employer’s conduct, the tribunal must not substitute its own decision, as to what was the right course to adopt, from that of the employer.

 

(iv)           In many, though not all, cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, and another quite reasonably take another;

(v)             The function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band is fair: if the dismissal falls outside the bandit is unfair.

23.     The Northern Ireland Court of Appeal in the case of Dobbin v Citybus Ltd [2008] NICA 42 advises tribunals to consider whether the dismissal was, objectively, within the range of reasonable responses for this employer to have dismissed this employee.

Determination

24.     The tribunal find that the respondent employer in this case dismissed the claimant on 13 August 2009 for gross misconduct. That misconduct related to the claimant’s absence from his employment without authorisation or excuse for three days and on a number of previous absences. These previous absences were found by the tribunal to be 19 days in an employment period of 17 months.

25.     The decision to dismiss the claimant in these circumstances was within the band of reasonable responses which a reasonable employer might take. However, the respondent in this case did not fulfil his statutory obligations under the Dispute Resolution Procedures. The claimant was not advised in writing of the fact that his employer was considering dismissing him and providing the reason why. This should have been followed by a meeting and discussion. If the employer was still dismissing the employee, an appeal should have been offered. Because of this failure on the part of the respondent, the tribunal find that the claimant was unfairly dismissed. The claimant is entitled to receive a minimum award of 4 weeks pay for this failure of the respondent.

 

26.     The tribunal find that there were exceptional circumstances in this case which would make any award of compensation payable by the employer to the employee unjust and inequitable. This is based on the finding by the tribunal that on 10 August 2009, in response to being told by the respondent that it was his choice to come in for his shift that day or not at all, the claimant chose not to come in and registered with the Social Security Agency as unemployed.  The tribunal find that the claimant’s return on 13 August 2009 to speak to the respondent was motivated more by the legal advice he had been given than a desire to continue in his employment. In such circumstances, the tribunal find that the claimant’s contribution to his dismissal by 100%. Any increase in that award would result in injustice to the respondent.

27.     The tribunal calculates the compensation payable to the claimant on foot of its finding of unfair dismissal as follows;

 

Minimum Award

 

28.     The claimant was employed for one full year. He was aged over 21 during this time. Between February 2009 and July 2009, the claimant’s weekly earnings, including commission were, on average, £324 gross. His entitlement under Article 154 (1A) is     £324  x  4 = £1296

Compensatory Award

 

29.     The tribunal however find that there were exceptional circumstances in this case which would make any award of compensation, much less any increase, payable by the employer to the employee unjust and inequitable. This is based on the finding by the tribunal that on 10 August 2009, in response to being told by the respondent that it was his choice to come in for his shift that day or not at all, the claimant chose not to come in and registered with the Social Security Agency as unemployed. The tribunal find that the claimant’s return on 13 August 2009 to speak to the respondent was motivated more by the legal advice he had been given than a desire to continue in his employment. In such circumstances, the tribunal find that the claimant’s contribution to his dismissal by 100%. Any increase in that award would result in injustice to the respondent.

 

 

 

 

Chairman:

 

Date and place of hearing:   28 January 2010, Londonderry.

 

Date decision recorded in register and issued to parties: