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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McLoughlin v Kevin Kearney [2012] NIIT 01583_11IT (10 February 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/01583_11IT.html
Cite as: [2012] NIIT 1583_11IT, [2012] NIIT 01583_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1583/11
CLAIMANT: Brendan Patrick McLoughlin
RESPONDENT: Kevin Kearney
DECISION
The decision of the tribunal is that the claimant was unfairly dismissed and is awarded compensation in the sum of £5706. The claim for a redundancy payment is dismissed having been withdrawn in open tribunal.
Constitution of Tribunal:
Chairman: Mrs Ó Murray
Members: Mr J Magennis
Mr H Stevenson
Appearances:
The claimant appeared in person accompanied by his wife.
The respondent was represented by Mr E McArdle, Barrister-at-Law, instructed by Rosemary Connolly Solicitors.
The Claim
1. The claimant’s claim was for unfair dismissal. The respondent’s case was that the claimant was dismissed for gross misconduct.
The Issues
2. The issues for the tribunal were as follows:
(i) Was the claimant dismissed for gross misconduct?
(ii) Was the dismissal fair or unfair in all the circumstances?
(iii) Did the claimant by his conduct contribute to his dismissal?
(iv) Did the claimant fail to mitigate his loss by not signing on for Job Seeker’s Allowance (JSA)?
Sources of Evidence
3. The tribunal heard evidence from the claimant and the respondent Mr Kevin Kearney. The tribunal had regard to the documentation to which it was referred.
The Law
4. The right not to be unfairly dismissed is enshrined in the Employment Rights (Northern Ireland) Order 1996 (the ERO). The ERO lists the potentially fair reasons for dismissal one of which is misconduct.
5. The burden is on the employer to show that the reason for the dismissal was one of the potentially fair reasons listed in ERO. If the employer discharges that burden there is a neutral burden whereby the tribunal decides whether dismissal was fair or unfair in the circumstances.
6. The statutory dismissal procedures (SDP) apply to this case. If the claimant is summarily dismissed for gross misconduct the modified SDP applies.
7. The respondent alleged contributory conduct. If the tribunal finds that the claimant contributed to his dismissal then the compensatory award can be reduced by up to 100%.
8. In the case of Martin v Yeoman Aggregates Ltd 1983 EAT IRLR49, an employee was dismissed in the course of a heated argument with a director. Within five minutes the director, realising that the dismissal was in breach of disciplinary procedures, suspended the employee instead. The employee did not accept suspension and claimed unfair dismissal. It was held that as the words of dismissal were used in the heat of the moment and were retracted almost immediately, it was open to the tribunal to find that no dismissal took place. The tribunal can therefore look at the words used and the surrounding circumstances in assessing the issue.
Findings of Fact and Conclusion
9. The tribunal considered all the evidence both oral and documentary to reach the following facts and applied the law to the facts found to reach the following conclusions.
10. The tribunal assessed carefully the demeanour of the witnesses in assessing the truth or otherwise of their testimony. The tribunal found Mr Kearney’s evidence evasive and contradictory in several key respects examples of which are given below. In contrast the claimant’s evidence was consistent and credible and, for this reason, where there was a conflict in evidence between the two parties the tribunal preferred the evidence of the claimant.
11. The claimant was employed as a driver for the respondent in relation to their business of wholesale supply of religious articles.
12. The business was based in Cullyhanna, Co Armagh and employed approximately six people including two drivers of whom one was the claimant.
13. The claimant was employed from 16 June 2008 until 20 May 2011 when, on our findings set out below, he was dismissed by the respondent.
14. On 20 May 2011 the claimant had returned from a journey to London in the van for the respondent. It was common case that Mr Kearney asked the claimant to give him a lift on that day from the Cullyhanna depot to his (Mr Kearney’s) home in Armagh. Mr Kearney was inconsistent in his evidence in relation to the person who ultimately gave him the lift home and in relation to the time he left the depot. In contrast the claimant was consistent in his evidence on the series of events that afternoon and we therefore find his account to be credible and we find the following facts in that regard.
15. Mr Kearney paid the claimant some cash on account of the extra work involved in the London delivery, on top of his cheque for his normal pay. The claimant was unhappy with the sum of money he received but said nothing. We do not accept the respondent’s contention that the claimant left the depot early without permission and without explanation by simply leaving his keys with Mr Kearney and failing to give Mr Kearney the arranged lift home. We find that the claimant left the depot at approximately 4.30 pm that afternoon having been told that he could leave at that time as Mr Kearney intended to get a lift home from someone else.
16. We therefore do not accept the respondent’s case that the claimant left early that afternoon without permission nor do we accept his case that the claimant left in an angry way. The height of Mr Kearney’s evidence on that point was that there was something about the claimant’s demeanour which made him think that he was unhappy with the cash he had received and Mr Kearney perceived this as a “cheeky attitude”. Mr Kearney then drove the 12 miles to the claimant’s house at 7.30pm on that evening (a Friday) and his evidence was that he did this because he was unhappy and knew that something was wrong with the claimant. We do not accept that the reason for Mr Kearney visiting the claimant was because he was a caring employer. We infer from all the circumstances that the respondent called at his house in order to ‘have it out’ with him in relation to what he perceived to be a cheeky attitude that afternoon.
17. There were two conflicting accounts of what took place between the claimant and the respondent on the evening of 20 May. We do not accept that the claimant behaved in the evening encounter in the aggressive way described by Mr Kearney nor do we accept that Mr Kearney was verbally abused by the claimant. We prefer the claimant’s account of the incident for the following reasons:
(i) Mr Kearney’s evidence was contradictory and evasive on several key issues in the case.
(ii) Both sides agreed that the claimant had never before been aggressive nor had he ever used bad language in his dealings with Mr Kearney.
(iii) Mr Kearney could give us no clear reason as to what prompted him to call at the claimant’s house. Mr Kearney’s account of the way the claimant left the premises that afternoon was different in the response form, in his evidence-in-chief and in cross-examination and we therefore do not accept it. We also do not accept the point made in submissions that Mr Kearney was prompted to call with the claimant that evening by his concerns for him.
(iv) We find on a balance of probabilities that, if Mr Kearney had been unhappy in the afternoon with the claimant leaving early and failing to give him a lift, he would have said so to the claimant when the claimant left the keys with him and said he was going home. We find it implausible that Mr Kearney would have said nothing if events had unfolded as he described.
18. When he called at the claimant’s house that evening, Mr Kearney pressed the claimant for an account of what had been wrong that afternoon and the claimant stated that he was disappointed with the money he had received for the trip to London. Mr Kearney then told the claimant that if he felt that way he “should not come back to Cullyhanna” which was the claimant’s work base. When the claimant asked if he was being sacked Mr Kearney said he was and said that he would not be keeping the claimant’s job open for him.
19. It was agreed by the respondent’s representative that the words which were used were words of dismissal.
20. The employer relies on misconduct as the potentially fair reason for dismissal. The misconduct relied upon is twofold: firstly, that the claimant left work early on 20 May and, secondly, that his behaviour was unacceptable in several respects in the evening encounter on that date.
21. We have rejected the respondent’s case on the claimant leaving early as we have found that the claimant left work half an hour early with the permission of Mr Kearney. We have not accepted the account of the encounter in the evening put forward by Mr Kearney and do not find that the claimant acted aggressively and abusively as described. The respondent therefore has not discharged the burden of proving that the reason for the dismissal was misconduct nor do we find that it was for any other potentially fair reason.
22. No procedure statutory or otherwise was followed prior to the dismissal on 20 May 2011 and no modified procedure was followed. This was accepted at hearing by the respondent’s representative. The dismissal was therefore automatically unfair.
23. The respondent argued that the sending of a letter of invitation to a disciplinary hearing on Monday 23 May 2011 amounted to an implied revocation of the dismissal the previous Friday. The respondent relied on the principle put forward in the EAT decision of Martin. We reject the respondent’s argument on this point for the following reasons.
(i) The Martin case involved a dismissal in the heat of the moment which was retracted within five minutes of it being made. In this case, too much time had elapsed between the dismissal on Friday evening and the sending of the letter on Monday for the letter to be regarded as an implied revocation of the clear dismissal.
(ii) In this case the claimant was dismissed in an encounter which was not the abusive, aggressive encounter described by Mr Kearney.
(iii) The dismissal was not retracted at any point during the purported disciplinary process which took place after the dismissal. In the Martin case the dismissal was explicitly retracted.
24. We find that the dismissal of the claimant on 20 May 2011 was unfair on general principles and due to the failure to follow the SDP. That dismissal was neither expressly nor impliedly retracted or revoked.
25. The respondent alleged contributory fault on the part of the claimant. We do not find contributory fault in this case as the claimant did not contribute to his dismissal on the 20 May. Any events post-dating the dismissal cannot be said to amount to contributory conduct.
26. We do not find fault with the claimant declining to be involved in a purported disciplinary procedure following a clear dismissal which was not retracted. We accept the claimant’s explanation that engaging with the respondent after the dismissal was futile given that Mr Kearney was the decision-maker and would have been involved in the disciplinary process and any appeal. We do not regard the claimant’s decision not to appeal the purported letter of dismissal on 27 May 2011 as unreasonable.
27. We find that the claimant’s failure to engage with the respondent after the dismissal on 20 May does not amount to a failure to mitigate his loss. In circumstances where the claimant was unfairly dismissed on the Friday, we do not fault him for not wanting to engage further with an employer who had acted in this way.
28. The respondent’s representative indicated that the claimant’s failure to mitigate loss related specifically to his failure to claim JSA following his dismissal. We do not accept this argument. The claimant did not want to sign on for benefits as he believed that the fact that he had been sacked meant that he could not get JSA for a period; he hoped to obtain employment quickly; and he lived off his savings. The fact that the claimant did not claim JSA does not put the respondent to any extra expense in this case and does not result in extra compensation for the claimant due to the application of the recoupment of benefit provisions.
29. The claimant sought employment from the date of the termination without success until he joined an agency on 22 August 2011. Since 5 September 2011 he has been employed by the agency on placement in the press shop at a factory manufacturing heaters. This is temporary agency work which can be terminated at any time. The claimant stated that business is currently very busy because it is the winter and he is hopeful of being retained on a permanent basis.
Compensation
30. The claimant is entitled to compensation calculated as follows. All figures in the following calculations are rounded up or down.
31. The effective date of termination (EDT) is 20 May 2011.
32. Earnings with the respondent: The claimant earned £315 gross per week with earnings of £264 net per week.
(ii) Current earnings: The claimant produced payslips covering five weeks with his current employment. From those payslips we calculate his approximate average net earnings, to be £249 per week.
(iii) The difference in pay between the old employment and the new employment is £15 per week.
33. Basic award:
The claimant is entitled to the minimum basic award stipulated for automatic unfair dismissal in relation to breach of the SDP as follows:
4 weeks x £315 gross pay = £1260.
34. Compensatory Award
(a) Loss between EDT and 5 September 2011 (start date in current job):
15 weeks x £164 net = £2460.
(b) Loss between 5 September 2011 and 25 November 2011:
16 weeks x £15 = £240.
(c) Future Loss. The tribunal took account of the following factors in assessing future loss:
(i) The claimant’s current work is temporary agency work which can be terminated at any time.
(ii) The claimant is working in a business which is very busy due to the winter.
(iii) The claimant hopes to be taken on permanently.
(iv) The claimant had two unskilled job offers soon after he registered with an agency.
(v) The claimant was unable to obtain employment for three months before he joined the agency but when he joined the agency he was placed within two weeks in his current job.
(vi) If the claimant is laid off at the end of the winter (which we estimate to be at the end of March 2012 as it is the end of the first quarter of the year), we find that it may take him two months to get another job at similar remuneration to that obtained with the respondent.
35. Taking account of all the above factors we have decided that it would be just and equitable to award future loss on the following basis:
£15 per week loss from 25 November 2011 until 30 March 2012:
18 weeks x £15 = £270
Net weekly loss from 1 April 2012 until 31 May 2012:
9 weeks x £164 = £1476
36. Total compensation summary
Basic award: £1260
Loss between EDT and hearing: £2700
Future Loss: £1746
_____
Total £5706
37. Recoupment statement:
Compensatory award : £4446
Prescribed element relating to the period
between the EDT 20 May 2011
and the date of hearing 25 November 2011 : £2700
_____
£1746
38. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 25 November 2011
Date decision recorded in register and issued to parties: